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Look to your by-laws.
This is a good topic for discussion of where a strata plan should have a tailored their “keeping of animals by-law” to cover such incidents.
You will note that this type of incident is covered under the new 2010 schedule 2 model by-laws in the Strata Schemes Management Regulations –
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.
Yours Faithfully
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500
Dear StrataEze
There is not a clear cut answer to your question and it is quite a complex matter. You must look to the terms of your contract for sale and analyse the original resolutions passed in respect of this by-law.
A general by-law, however can be amended or repealed by special resolution at a general meeting. This requires a quorum and for not more than 25% to vote against the amending by-law.
Yours Faithfully
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500
https://www.teyslawyers.com.au
JimmyT is correct. You should look to your by-laws for guidance.
By-law 5 of the model by-laws in Schedule 1 of the Strata Schemes Management Act 1996 (the Act) prevents an owner or occupier from “damaging or defacing” any structure that forms part of the common property, unless the written approval of the owners corporation is first obtained.
In this case, it appears that the works are of “minor” nature. Works of a minor nature only require an ‘ordinary resolution motion’ which can be passed at a general meeting of the owners corporation. An ordinary resolution requires a simple majority vote to pass. Minor works includes affixing nails or screws to hang pictures or cupboards, or replacing items such as taps, bathtubs and sinks in a bathroom or kitchen.
Simone BalsaraTEYS LawyersThe Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
We agree that the by-law contravention in respect of parking in a designated visitors parking area is a separate issue from the damage to the vehicle.Under s.62 of the Strata Schemes Management Act 1996, the owners corporation has a duty to maintain and repair property.If the owners corporation has failed to maintain and repair common property and this has resulted in damage to personal property, the owners corporation is responsible for the damage and a claim can be made against the owners corporation.Under s83 (1) of the Strata Schemes Management Act 1996, “the owners corporation of a strata scheme for the whole of a building must insure the building and keep the building insured under a damage policy with an approved insurer”. Therefore, the car parking area, being part of the building, ought be be insured.Yours faithfully
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERSThis problem is not so uncommon.
We suggest that rather than spending $99.50 (new fee effective 1/07/11) registering a by-law and then having to spend owners corporations funds in imposing the by-law, you may want to put up a “bird scare owl” which will keep away the birds and only cost $40 – CLICK HERE
Yours faithfully
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Dear Andrew
Your questions reminds me of Laresu’s case in the NSW Court of Appeal: https://www.austlii.edu.au/au/cases/nsw/NSWCA/2010/180.html.
In this case, a visitor to a small retail and commercial building in Sydney fell on some unlit stairs late in the evening after an automatic light had switched off and suffered personal injuries. The accident occurred at 9.40 pm and the owner of the property had instructed the managing agent some years earlier to set the automatic light switch to operate only until 6.30 pm.
The appeal judges found that the owner of the premises owed a duty of care to the visitor that had been breached and the danger could have easily have been overcome by leaving the light on 24 hour a day, or at least until midnight or by installing an override switch.
The judges also found that the owner’s duty of care had been delegated to the managing agent who accepted a broad responsibility under the management appointment.
The real contest in the case was whether the managing agent was relieved of responsibility for this accident due to the owners specific instructions to run the automatic lights only until 6.30 pm. In the end the Court of Appeal held both parties to blame. The blame was apportioned 40 % to the owner and 60 % to the managing agent. The Managing Agent took a greater share of the blame because despite the owners instructions, it should have recommended the light be kept on much later in the evening or 24 hours a day.
The lesson for strata owners is not to get involved in making decisions that should be left to the experts. The small amount of money saved on some low wattage lights for a few hours was inconsequential compared to the damages suffered. For managing agents, the lesson is that they have a duty to make recommendations about safety against the wishes of their owners.
Yours faithfully
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Additionally, with a notice to comply, the maximum penalty imposed by the Tribunal is $550.
If an owners corporation does not follow certain steps before issuing a notice to comply their application to impose a penalty on the offender may be dismissed by the Tribunal. A costs order may also be made against the owners corporation if the Tribunal believes the owners corporation's application is frivolous, vexatious, misconceived or lacks in substance.
For more information of enforcing by-laws through warning notices email us: simone@teyslawyers.com.au
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
This is a very common problem and many strata schemes have contacted us in the hopes of resolving this parking control issue. A clear and simple parking control by-law can deter owners and occupiers from offending.
Like yourself, many owners corporations get frustrated with owners and occupiers that breach by-laws and often do not know how to deal with these offenders. The owners corporation needs to adopt a clear guideline that provides a step by step process when a complaint is recieved about an offending owner.
For more information of parking control by-laws and enforcing by-laws email us for our FAQ sheet: simone@teyslawyers.com.au
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Dear Kerry
When you say the other 12 parking spaces were “strata-ed”, do you mean that those car spaces are part of individual lots?
If the other 4 units who have exclusive use of car spaces want to convert the common property to lot property, strata subdivision is required.
If you would like an information sheet on formalising exclusive use of common property or altering unit entitlements, please email us – simone@teyslawyers.com.au.
Kind regardsSimone BalsaraLawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
Dear Far
Self drafting by-laws can lead to misinterpretation and it is a good idea to have the by-law drafted or reviewed by a strata law firm.
A special privilege by-law in respect of renovations to an individual lot should include provisions such as – a description of works, consent of the owners corporation, provision of insurance, responsibility of the owner in respect of repair and maintenance and responsibility in respect of any loss or damage caused by the renovation.
If you would like any assistance, then please do not hesitate to contact us.
Yours faithfully
Simone BalsaraLawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
We are often asked about how many people should be on an executive committee and whether a husband and wife (co-owners) can both be on an executive committee. The answer is –
1. It is better that an executive committee has an odd number so that there are no deadlocks in voting.
2. An executive committee should not have more than nine members. (Schedule 3, Clause 2 (2) of the SSMA)
3. Anyone can be nominated by an owner as a member of an executive committee. (Schedule 3, Clause 2 (4) of the SSMA).
4. Co-owners can both be nominated as candidates for office, however both co-owners must be nominated by another owner of a lot. (Schedule 3, Clause 2 (5) of the SSMA). However, this is often discouraged as conflicts arise when two or more co-owners of the same lot are members of the executive committee.
Yours faithfully
Simone BalsaraLawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500 or 1300 TEYS LAWYERS
An owners corporation may make a by-law that allows owners to install steel cages around their parking space in order to keep their storage materials secure so that they do not interfere with common property.However, this option presents problems such as – not all owners may want to install cages, the cages may interfere with common property and obstruct other owners' parking spaces.There are many cases which have required parking cages to be removed for the above reasons. Additionally, open parking spaces have not been designed to accommodate storage cages and the owners corporation may need to be updated on the strata plan if such cages are installed.Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500There is no specified time period within which a EGM must be held.
However, it may be implied that an EGM should be convened to consider a motion within two months after the secretary or strata managing agent has been served with a valid motion. Section 138 (2) (b) of the Strata Schemes Management Act 1996 deems that an owners corporation has failed to exercise its function at the end of the two month period if the motion has not been considered by a duly convened meeting.
With regards to whether a strata manager has to be present at a meeting, this will depend on what functions the strata managing agent has been delegated by the owners corporation.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.au
Hi Jimmy
A by-law can cover the solar panels already installed within the scheme and state that the repair and maintenance provisions apply to the solar panels already installed.
In the above case, the issue is that the solar panels were installed without the permission of the owners corporation. The solar panels have been installed in the roof of the lot and this effects common property. The owners corporation can request the removal of the solar panels where permission was not obtained for installation.
Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.auThe terms of the planning consent of the building issued by the local authority can specify the activities that are prohibited within the scheme.
However, from the perspective of the Strata Schemes Management Act 1996 (the Act), such activities can not be restricted by the owners corporation.
Restricting short-term letting is invalid under the Act. If short-term letting is permitted under the terms of the development consent and any instrument under the Environment Planning and Assessment Act 1979, then any by-law seeking to restrict this right is invalid under s.43 (4) of the Act.
Kind regards,
Simone Balsara
Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.au