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It is so annoying, and so inconsiderate, why do people do it? We have had similar problems but not to the same extent, it sounds like you are in a relatively large scheme?
We have had one owner recently who seemed to think it is ok to dump his rubbish wherever he pleases, and throw pieces of meat in the courtyard for his dog. This culminated in three of us confronting him, and him using some disgusting language in response, but he doesn’t do it now.
Some of the things we have done:
1. in the case of tenants moving in or out, you would know which lot they come from, if they dump rubbish photograph it, and have the strata manager send the bill for removal of the rubbish to the agent. At the same time send an email to the strata manager noting that the residents of Lot X have dumped rubbish so you have a record. If it isn’t paid, make sure it is recorded as a debt against the owner.
One thing a friend’s scheme did was require a bond from any owners who rented their units out, to cover this kind of thing. You need a by-law for that.
2. If you see someone doing it, challenge them. It is very difficult to justify when you are caught in the act.
3. Rather than putting a sign up on the notice-board, put signs up where the bins are.
I am not sure if any of that will help, we still have difficulty getting people to understand the recycling bins, surely it can’t be that hard.
No there isn’t, unless the OC specifically sets a limit by resolving at the AGM. For example, you can resolve that the EC can only approve building works up to an amount of $20,000, or can only engage a consultant up to costs of $X. Or you can set a more general limit, so the EC can only approve expenditure up to $Y, otherwise it has to go to the OC.
I am an EC member, and I would be reluctant to approve anything major without going to the owners. When we did a major building project, we had that approved at an AGM. There were variations to the project, and these were approved by the EC. One amount was about $40,000 but I wasn’t concerned about that, because the project couldn’t continue unless we did it.
However, the EC is accountable to the owners. If they went that much over budget, then at the next AGM, they should be asked why, and perhaps someone could put in an agenda item to limit their expenditure. Consultant fees wouldn’t be an enormous amount, how much was it?
For losses arising from defective work, it is six years from the date of completion, or the ending of the contract, whichever is the later.
There are a number of cases on what is meant by “completion”, usually it centres around issue of the occupation certificate.
2 years for loss arising from other than a structural defect encompasses things such as failure to complete, e.g. when a builder walks away, goes into liquidation or fails to do something that is in the contract.
In your case it sounds like you fall into the structural defect camp.
Have a look here.
Yes you do need an incentive, and I agree that you need to short-circuit the current situation which entails long-running cases between owners and developers, and of course insurers. The only winners there are lawyers, but to be fair, the lawyers are only winning because the developers didn’t do the right thing in the first place. And the truth is, there will always be rogues in any industry, we may wish that every building meets BCA and is free of defects, but that will never happen.
One of the most common things that happens is where a developer is faced with a claim, and/or owners succeed in a claim against the developer, the developer goes into liquidation/is wound up. So the owners get nothing. There are numerous ways of doing that to avoid liability. Then the developer appears again in another corporate entity, i.e. the phoenix company scenario. Bear in mind owners would be unsecured creditors and way back in the line of parties to be paid in the event of insolvency.
Developers don’t care if they are suspended, they will find another way to get back into business.
The only way to make it work is to lock up a certain amount of money, however much is determined to be appropriate, at the outset. So if a developer wants to put up an apartment block and sell to the public, they lodge a form of bond at that time. If it is a large development, it will be a large amount of money, and that will put the price of the properties up, but personally I would be willing to pay that for peace of mind.
There are numerous models in other contexts that you can look at, for example the National Guarantee Fund which is for the purposes of compensating people who suffer a loss from the default or certain other misdeeds of stockbrokers. This was originally funded by the stockbrokers, and that cost is reflected in every fee paid for a trade. Funds like this (fidelity funds) are administered by separate entities. There are lots of other examples.
Was the hot water system the owner’s or the owners corporation’s? That is your starting point, because if it is the owner’s corporation’s hot water system they are liable for the damage.
From what you have said however, it sounds like the hot water system belongs to the owner, so in the face of it she is liable for all the damage, as it is her system and she is responsible for it. By way of example, if someone is driving their car on the common driveway and has an accident and damages a building that is common property, they are responsible for that damage.
The problem you may have is that the owner has home and contents insurance but she may not have more general liability insurance. If she isn’t covered for the more general damage, then the strata is in a bind because they have a responsibility under section 62 to maintain the common property, they have to fix the damage. So if she isn’t covered, the strata would have to fix it and claim on their insurer, and the insurer then has the option to pursue a legal claim against the owner, on the basis that she is responsible for the damage.
Re your questions:
1. see above.
2. the original parquetry flooring is the responsibility of whomever is liable for the damage, it doesn’t matter whether it is common property or not. If that floor is damaged you could probably replace it with something else, if there was a floating floor over it.
3. Yes the strata should do thorough investigations to ensure that any possible concrete cancer is dealt with. Given the age of the building, that puts it right in the concrete cancer problem zone. Liability could be arguable as there may already have been concrete cancer there, and you would need to get advice on that.
4. Yes the owners corporation should inspect the damage as a matter of utmost priority, I am surprised they haven’t already considering the extent of the damage which sounds awful.
5. Insurance companies always give you the runaround, they make money from not paying out claims. The best thing you can do is contact your insurance company as a matter of urgency and explain the situation, they have an interest in this being resolved, and they can deal with the other insurance company.
I think Whale is right, it sounds like they have gone a bit overboard on the concept of “commercial”. Even if you are holiday letting, it is still residential, same as if it was a normal tenancy arrangement.
Setting that aside, I don’t think the owners corporation can decide that two lots are liable for the cost of the inspection unless they pass a by-law, and in that case the owners responsible for the costs would have to agree to the by-law. I could be wrong, but l believe they are on shaky ground. If they billed you, I would just refuse to pay it.
Your doors, your windows, you clean them. Our back doors were filthy following building works so I got some cleaning stuff and a cloth and wiped mine down, no-one else did, it took me about 5 minutes. And as Struggler says, the marks etc. are most likely caused by the owner and their visitors anyway.
The concept of “free” is interesting in a strata context. Just because you are not paying for something directly doesn’t mean you are not paying for it. If the owners corporation takes on responsibility for something, you are paying for it through your levies. I would rather the strata pay for important things that really is within its responsibility, and keep costs down in other areas such as this. That also includes things such as sweeping stray leaves. Why would you pay a contractor an inflated price when you can do it yourself with a broom in a few minutes?
No – the strata manager cannot just decide to chair the meeting, it is up to the owners. As a starting point the Chair of the owners corporation chairs the meeting, if they feel that they can’t or don’t want to for whatever reason then they can ask someone else to do it (it can be another owner), and the owners then have to agree.
This is a reflection of a more general issue with some strata managers – it is not their scheme, the scheme belongs to the owners. The strata manager is employed by the owners to do certain things, and the owners set the boundaries. This needs to be made clear – in some cases there is a conflict of interest, such as when the owners corporation may wish to change the strata manager, and in such a case why would you have the party who has an interest in the outcome presiding over the discussion?
Similarly, it is not acceptable for a strata manager to cherry pick agenda items for the AGM, which does occur. If an owner puts up a valid agenda item, then the strata manager must put it on the agenda.
Who is the current Chair of your scheme? If you haven’t already spoken to them, are they aware you are putting up this agenda item?
In relation to the junior strata manager signing the minutes of the last two meetings, it is irregular, the actual Chair should have signed them, but as long as the owners resolved the minutes were true and correct it is not a major issue. Note the owners can resolve that the manager sign the minutes.
I don’t believe one owner can enter into an agreement like that on behalf of the Plan without the agreement of the other owner, so whatever he has done is probably voidable. I think you should get legal advice, if you can’t agree on things like this it is a bigger issue than just insurance.
I agree with Cosmo, we have 9 lots. In the 10 years I have been here I have been the Secretary. There isn’t a single other person who knows anything about strata or who wants to know, and several of them have been here for 20/30 years. One of them asked me the other day what a by- law is, and she is on the EC.
If you kick people who know what they are doing off the EC, you are throwing the baby out with the bath water.
I also don’t agree that non-residents should be barred from the EC, they have the same property interest. A resident weighting could work.No I don’t think that is a good idea, it sounds like a very stupid idea. Why would you single one person out, and then have them argue that everyone else is doing it?
Your friend is a bit stuck unless the EC does something.
I don’t think you are being anal, just doing the right thing. The solicitor on the other hand is very naughty, what if you relied on that and later on something went wrong because of it?
A lot here transferred to someone on the death of her parents, I noticed that on the death of her father it wasn’t changed to just the name of her mother, but then when the mother died there was nothing from the solicitor either. That created a problem for her at the next AGM, her proxy wasn’t valid because she wasn’t on the roll as the owner. The solicitor should have done that.
Naughty naughty EC. The gall of some people is gobsmacking.
A couple of things you might want to consider:
– if you overturn the EC’s decision (which I believe would be the right thing to do) then the management company may have the right under the contract to be paid out a sum of money, this will vary depending on the contract, but that is how those contracts usually work. The amount can be quite substantial.
– however, if the management company was aware that the OC had determined not to appoint it, and it may well have been, then its case is weaker. That is, if it entered into the contract knowing that the OC didn’t want to appoint it, then at one level it was party to the misfeasance of the EC and would find it difficult to argue it was entitled to anything.
– similarly, if the OC did have to pay the management company out in the event of termination/rescission of the contract, it is possible that the OC could hold the EC members liable for that payment, because they overrode the wishes of the OC determined at the GM. In such a case I am not so sure they would be covered by insurance, because from the facts they acted in bad faith. That would certainly give the EC members something to mull over. Query also whether you could seek recompense from the strata manager if he was a party to it.
None of the above is legal advice.
I agree with Whale, tweaking the tender is not going to cut it if the substance of the decision is the same, i.e. appointing the building manager.
I would go further and limit the EC’s decisions over a range of matters, including the amount of money they can spend, if you can’t trust them.
I don’t care what people do in their own homes, but I do hate the smell of marijuana smoke, it makes me feel really nauseous and it is very pervasive.
Contacting the police is pretty extreme, and on one analysis a bit of a waste of police time.
There is quite a bit of debate about smoking generally and smoke drifting into other lots and common areas. There was a case in a NSW tribunal that held that smoking by a couple in a unit was causing a nuisance to people in other lots.
I suggest you start by speaking to the neighbours first and if that doesn’t work try the strata.
Yes that is a good way of explaining it. And the same principles of corporate governance apply, or at least they should.
In the immediate case, the strata manager and/or the EC or even the solicitor may try and claim legal privilege on the documents. I don’t see how they can, because basjan is an owner and effectively is a party to the dispute. It does seem very strange if you have inspected the strata records as you say, and there is very little documentation there. The strata manager should have it. They may not have all that is on the solicitors’ files, but they should have things such as any legal advice given. If the EC members have it, and I bet they do, they are holding it in their capacity as EC members and are obliged to provide you with copies.
As an owner, you can’t ask the solicitor directly for the files, and technically some of it may fall outside the ambit of the sections that Whale quotes (at least that is what the solicitor may claim). So that is a trickier one. I would start with the EC and strata manager.
As an aside, was there a resolution at a GM to spend all that money on legal and related fees? There may well have been, but if there wasn’t, the EC members could be personally liable.