[Simone]

Dear DaveB

 

Agreed, flyscreens are not child safety restraints. However, studies have shown that there are an increasing number of child-related injuries and deaths from window falls. Please see report below –

https://kidshealth.chw.edu.au/sites/kidshealth.chw.edu.au/files/attachments/758/outcomes_report.pdf

 

If the flyscreens are the original flyscreens installed at the time the scheme was registered, and remains to be the Owners Corporation's responsibility, the Owners Corporation should be aware of the risks and possible liability for failing to ensure the safety of owners and occupants in their building. The report above also discusses the impact on emergency escapes- “Escape through windows of higher buildings such as multi-level apartment buildings is less likely therefore fire safety issues in latching or guarding windows in these types of buildings is not as significant.”

Kind regards

Simone Balsara

simone@teyslawyers.com.au

https://www.teyslawyers.com.au

[Simone]

With respect to your question of whether an owners corporation can pass a motion that requires all owners to be responsible for replacement of their fly screens, according to recent research, an owners corporation can be held liable if a child falls through a flyscreen which has not been installed adequately and does not have the proper locking devices (see https://nsw.stratacommunity.org.au/resources/745).

Owners and the owners corporation ought to ensure that the flyscreens installed in the scheme meet the BCA requirements to ensure the safety of owners and occupiers of the lots. The replacement of flyscreens affect the safety of the building and the appearance of the property and therefore, ought to remain the responsibility of the owners corporation.

Kind regards

Simone Balsara

simone@teyslawyers.com.au

https://www.teyslawyers.com.au

[Simone]

An effective visitors parking by-law will define who is a visitor and provide for maximum hours for parking.

If people see powerful and effective sanctions in the by-laws, then they will be more likely to observe them. If the by-laws have to be enforced, then these powers will be effective and protect the owners corporation and its executive committee against any liability for unlawful use of the motor vehicle in having it dealt with in accordance with the by-law.

For an information sheet on visitor parking by-laws and unauthorised parking on common property, please email simone@teyslawyers.com.au

TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
web: https://www.teyslawyers.com.au
email: service@teyslawyers.com.au
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

We have been asked this question a number of times. 

The simple answer is – 

If the fuse board is within the lot, then it is the owners responsibility.

If the fuse board is in the meter room then it is the owners corporations responsibility.

TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
web: https://www.teyslawyers.com.au
email: service@teyslawyers.com.au
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Johnson v Owners Corporation [2003] NSWCTTT 74 (16 January 2003) – An owner was unreasonably refused consent to keep a cat on the premises. The CTTT allowed the owner to keep the cat in their lot and found that there was no by-law in place that prohibited animals in the complex. The owners corporation could have sought to amend the existing by-law and this had not been done. The CTTT found “precedent” concerns are not valid, nor is it appropriate for the owners corporation to have a “policy” which it seeks to arbitrarily apply in every instance.

 

https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/sch1.html

 

Simone Balsara

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Billen Ben has made some excellent points. 

We believe that by-law 17 Option B in the new 2010 model by-laws is a good by-law, that can be enforced within schemes – 

 

17 Keeping of animals

Option B

(1) Subject to section 49 (4) of the Act, an owner or occupier of a lot must not, without the prior written approval of the owners corporation, keep any animal (except a cat, a small dog or a small caged bird, or fish kept in a secure aquarium on the lot) on the lot or the common property.

(2) The owners corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.

(3) If an owner or occupier of a lot keeps a cat, small dog or small caged bird on the lot then the owner or occupier must:

(a) notify the owners corporation that the animal is being kept on the lot, and

(b) keep the animal within the lot, and

(c) carry the animal when it is on the common property, and

(d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.

An owners corporation can modify this by-law to include provisions in respect of behaviour of pets and their enforcement policy for troublesome pets. However, it would be unreasonable to include provisions such as “no barking allowed” or “if your dog barks then it will be removed”. 

 

Simone Balsara

Lawyer 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

JimmyT has asked the right questions.

Is there a pets by-law in your scheme?

Did your neighbour obtain the required consent to keep his pet in his lot?

Is there a noise by-law which requires owners to not create any noise that is likely to interfere with the peaceful enjoyment of owners or occupiers of another lot?

 

Simone Balsara

 Lawyer

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

This is essentially an “empowering” by-law. 

Under section 43 of the Strata Schemes Management Act 1996, by-laws may be made in relation to “the details of any common property of which the use is restricted”. 

An owners corporation can also include conditions such as the executive committee approval with respect of access. However, you make a reasonable point in stating that the EC members currently on the committee may change therefore shifting this power to any new EC members in the future. 

If you are going to propose to amend the by-law, you may want to suggest that the Strata Manager be delegated this power to avoid any conflicting interests of EC members. 

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Under s.81 in the Act, and in context of your question, it appears that you may have a claim.

You will have review the insurance policy to determine whether “owners fixtures” are included under the policy.

Another question for consideration is also whether the “toilet pan” is a chattel (removable) or a fixture. 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Dear Billin Ben

 

The Qld case of Mineralogy P/L v Body Corporate for the 'The Lakes Coolum [2002] QCA 550 discusses the validity of by-laws that are prohibitory rather than regulatory. 

The decision refers to two High Court cases – Swan Hill v Bradbury and Brunswick v Stewart which also discuss the validity of prohibitory by-laws. 

 

https://www.austlii.edu.au/au/cases/qld/QCA/2002/550.html

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Be realistic about what you will be able to achieve. Only take on matters which you must deal with by law and make sure you only pick the battles you can win.  

If you have four meetings a year have a theme for each meeting – 

1.  The induction executive committee meeting—where new members are briefed by continuing members about the history of the owner’s corporation and the way the executive committee operates.

2. The service contracts review executive committee meeting—where members review the terms of each of the service contracts for the owner’s corporation and the performance of the service contractors.

3. The repairs and maintenance review executive committee meeting—where members review issues relating to the physical condition of the common property of the owner’s corporation.

4. The budget session—where members prepare the budget ahead of the next annual general meeting for the owner’s corporation and discuss the whole agenda of the annual general meeting.

At the induction meeting you should ensure that all members are armed with a contact list of the members, a copy of the by-laws, strata managing agent contract, service contracts and a copy of the Strata Schemes Management Act. This will ensure you are all well-informed and prepared for your role. 

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Consistency in the decision making process is important. 

In QLD, QCAT publishes all its decisions which forces a consistent approach from the tribunal in making its decisions.

In the CTTT, there is no guarantee of a win because another similar case was decided in a certain manner. This is problematic and should be addressed.  

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

Struggler is correct. The form of approval would greatly affect who is responsible for the bollard and any loss or liability caused by its installation. This would normally be included as a condition in a special by-law.

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

An instrument appointing a proxy must in in or to the effect of Form 2 in Schedule 8 of the Strata Schemes Management Regulations 2010 – 

 

https://www.austlii.edu.au/cgi-bin/sinodisp/au/legis/nsw/consol_reg/ssmr2010333/sch8.html?stem=0’synonyms=0’query=proxies

 

It is also important to note that an owner can authorise the proxy to vote only on specific matters and may place limitations on the manner in which they want the proxy to vote. 

 

Simone Balsara

Lawyer

 

TEYS Lawyers, The Strata Law Experts 02 9562 6500 – 1300 TEYSLAWYERS Suite 73, Lower Deck, Jones Bay Wharf 26-32 Pirrama Rd, Pyrmont NSW 2009

[Simone]

JimmyT is correct. You may want to consider campaigning for a drop off zone for owners and occupiers. 

An owner or occupier should only park on common property where written approval of the owners corporation is obtained. If written approval is unlikely, you can also look to amend your by-laws to make specific provisions in respect of parking on common property. 

 

Yours Faithfully

Simone Balsara

Lawyer

 

TEYS Lawyers

The Strata Law Experts

02 9562 6500

simone@teyslawyers.com.au

https://www.teyslawyers.com.au

[Author]

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