Forum Replies Created
-
Replies
-
Hi Diana from Bondi
The neighbouring owners corporation is committing the tort of private nuisance.
The Council action is a good idea.
In addition to this, your owners corporation should write a letter to the neighbouring owners corporation indicating:
– the existence of the nuisance;
– the inability of your owners corporation to mitigate it’s loss or potential loss (I presume there is nothing you can do to ensure no-one is injured or no property is damaged. If there is, steps should be taken in this regard (non-slip mats, etc));
– the potential for personal injury or property damage as a result of that nuisance; and
– the fact that no EC members will be indemnified by their D & O insurance for any fines or penalties which might arise from personal injury or property damage.
Regards
Chris KerinPartner – Building Defects
———————————-Hi Giglet
JimmyT is correct. The obligation rests on the OC to repair lot property damaged by the OC when rectifying common property.
A letter from the OC should be a sufficient to ensure payment.
Regards
Chris Kerin
Partner – Building Defects
———————————-Hi Whale
I agree, the OC may refuse payment.
Secondly, two issues arise from the installed exhaust fan: (a) if there is damage to common property caused by the moist air, this might ultimately give rise to an actions against the installer, the property manager and the owner of the lot; and (b) while the exhaust fan itself is a “lot owner fixture”, in completing work to install the exhaust fan, it is possible that the common property was altered without OC authority. It is likely the original by-law 5 addresses this issue.
Finally, given the exhaust fan is a lot owner fixture, the OC cannot address the installation of this exhaust fan (as this is now a matter for the lot owner).
Regards
Chris Kerin
Partner – Building Defects
———————————-Hi Chopsuey
If you own the clothes dryer, it’s your responsibility to repair.
Regards
Chris Kerin
Partner – Building Defects
———————————-Hi Chopsuey
There are two issues
It sounds like the wall is lot property given it lies between your bathroom and your bedroom. Therefore, if the bubbling is caused by water from the bathroom, then you are responsible for fixing the problem (not the OC). However, depending upon a range of factors (including the relevant limitation periods), you may have a right of action available against the original builder.
If the bubbling is caused by water from another source (ie not the bathroom), then responsibility may lie elsewhere, depending upon where the water comes from.
Finally, you’ll need an engineer to determine if the structure of the building has been compromised.
Regards
Chris Kerin
Partner – Building Defects
———————————-Hi ElevenSeven
What the owners corporation is trying to do is actually a very involved process and requires specialist legal advice.
In the first instance, you’ll need development approval from the local council.
Secondly, you’ll need to get legal advice on the best way to do what you are trying to achieve (there is more than one approach which might be taken). For example, on one approach you will probably need several special resolutions passed for quite detailed by-laws, a section 65A motion plus an ordinary resolution for a special levy.
Detailing how this might be structured is well beyond the scope of this blog and I strongly suggest you obtain specialist legal advice.
Regards
Chris Kerin, Senior Partner
Don’t miss our next
monthly webinar:
The Best Practice for Strata Insurance and
Claims HandlingHi Jeremy
On the basis of the facts as you have described them, you would be able to set aside the resolution made at the AGM.
The question of course must be asked, is it worthwhile to do so?
My contact details are below if you require any further information.
Finally, I note that you are located in Newcastle. TEYS Lawyers is running a free Strata Apartment “Seminar Children, Leaks, Animals and Parking” on 3 August 2011 in Newcastle. Let me know if you wish to attend and I’ll forward you an invitation.
Regards
Chris KerinPartner – Building Defects02 9562 6500Hi Hyacinth
Carpets
I suggest you:
1.submit a written motion to the secretary of the OC requesting a resolution be passed to correct the defect asap; and
2.if the OC fails to consider the motion after two months, lodge an application for an order by an adjudicator at the Consumer Trader & Tenancy Tribunal under section 138 of Strata Schemes Management Act requiring the OC to carry out the repair.
Insurance
EC members are insured for negligent acts. They are not insured for fraud or reckless behaviour and may be personally liable for loss arising from this conduct and may also face fines and the cost of a legal defence for breach prosecutions (for which they are uninsured). Fines and prosecution might arise for breaches of the Occupational Health and Safety Act 2000 (NSW).
Let me know if you have any questions.
Regards
Chris Kerin
Senior LawyerHi DrWitch
It is an offence under section 12 of the Home Building Act to do unlicensed residential building work or specialist work (see section 12 set out below):
“An individual must not do any residential building work, or specialist work, except:
(a) as, or as a member of a partnership or an officer of a corporation that is, the holder of a contractor licence authorising its holder to contract to do that work, or
(b) as the holder of an owner-builder permit authorising its holder to do that work, or
(c) as an employee of the holder of such a contractor licence or permit.
Maximum penalty: 1,000 penalty units in the case of a corporation and 200 penalty units in any other case.”
I note that a penalty unit is $110 and therefore the fines are up to $110,000 for a corporation and $22,000 for a natural person.
The Office of Fair Trading enforces these matters and presumably any contractor looking to do such work would be wary of any renegade lot owners who might report them to the Office of Fair Trading.
Chris Kerin
Senior Lawyer
———————————-
Hi Playerproducer
If the tiles were installed at or before the date or registration of the strata plan they are common property. If an owner installed tiles after registration of the strata plan, it is the individual owner’s responsibility to look after the maintenance, renewal and repair of the tiles.
I am unable to advise on the by-law and it’s implications as I have not seen it. As a general rule, by-laws bind individual owners not owners corporations.
The standard Bylaws 1 and 14 addresses noise and flooring, respectively and might also be relevant.
Sub-sections 117(1)(a) and (c) of the Strata Schemes Management Act provide for orders from an adjudicator at the CTTT for nuisance or interference.
There are numerous remedies under the Protection of the Environment Operations Act 1997 which address both sound and vibration levels where such noise is harmful to or interferes unreasonably with the comfort or repose of a person who is outside the premises from which the noise originates.
The remedies include noise control notices (issued by Local Council), noise abatement orders (issued by Local Court magistrate) and noise abatement directions (issued by member of police force).
There are also a range of CTTT cases addressing breaching bylaw 14 (eg Kelly v Lane [2006] NSWCTTT 438).
Chris KerinSenior LawyerHi Sandyp
I think Whale has provided a very practical answer to your question.
However, for completeness and assuming the car space in the garage is lot property, the determination of whether an adjoining structure such as a garage is common property depends upon whether one of the seven symbols or statements of intent commonly used by surveyors on strata plans will indicate if these areas are common property or part of the car space.
For example, is there a drawn dividing line the car space to the garage?
In order to advise with finality, I’d need to see the strata plan .
Chris KerinSenior Lawyer
———————————-Hi Jeremy
The relevant provisions of the Environmental Planning and Assessment Regulation 2000 are:
“175 What is an annual fire safety statement?
(cf clause 80GA of EP&A Regulation 1994)
An annual fire safety statement is a statement issued by or on behalf of the owner of a building to the effect that:
(a) each essential fire safety measure specified in the statement has been assessed by a properly qualified person and was found, when it was assessed, to be capable of performing:
(i) in the case of an essential fire safety measure applicable by virtue of a fire safety schedule, to a standard no less than that specified in the schedule, or
(ii) in the case of an essential fire safety measure applicable otherwise than by virtue of a fire safety schedule, to a standard no less than that to which the measure was originally designed and implemented, and
(b) the building has been inspected by a properly qualified person and was found, when it was inspected, to be in a condition that did not disclose any grounds for a prosecution under Division 7.
176 Issue of annual fire safety statements
(1) The assessment and inspection of an essential fire safety measure or building must have been carried out within the period of 3 months prior to the date on which the annual fire safety statement is issued.
(2) The choice of person to carry out an assessment or inspection is up to the owner of the building.
(3) The person who carries out an assessment must inspect and verify the performance of each fire safety measure being assessed.
177 Annual fire safety statement to be given to council and Fire Commissioner and prominently displayed in building
(cf clause 80GB of EP&A Regulation 1994)
(1) Each year, the owner of a building to which an essential fire safety measure is applicable must cause the council to be given an annual fire safety statement for the building.
(2) An annual fire safety statement for a building:
(a) must deal with each essential fire safety measure in the building premises, and
(b) must be given:
(i) within 12 months after the date on which an annual fire safety statement was previously given, or
(ii) if a fire safety certificate has been issued within the previous 12 months, within 12 months after the fire safety certificate was issued,
whichever is the later.
(2A) Failure to give an annual fire safety statement to the council within the time prescribed by subclause (2) (b) constitutes a separate offence for each week beyond the expiry of that time for which the failure continues.
(3) As soon as practicable after an annual fire safety statement is issued, the owner of the building to which it relates:
(a) must cause a copy of the statement (together with a copy of the current fire safety schedule) to be given to the Fire Commissioner, and
(b) must cause a further copy of the statement (together with a copy of the current fire safety schedule) to be prominently displayed in the building.
(4) Subclause (3) (b) ceases to apply to an annual fire safety statement only when every essential fire safety measure with which it deals has become the subject of a later fire safety certificate or fire safety statement.”
Please note that annual fire safety statement addresses the assessment and inspection of an essential fire safety measure.
Chris KerinSenior Lawyer
———————————-Hi Cat
The standard Bylaw 1 addresses noise but is only addressed to individual lot owners (not the owners corporation).
The same goes for sub-sections 117(1)(a) and (c) of the Strata Schemes Management Act.
However, there are numerous remedies under the Protection of the Environment Operations Act 1997 which address both sound and vibration levels where such noise is harmful to or interferes unreasonably with the comfort or repose of a person who is outside the premises from which the noise originates.
The remedies include noise control notices (issued by Local Council), noise abatement orders (issued by Local Court magistrate) and noise abatement directions (issued by member of police force).
There are also regulations prohibiting the use of certain articles at certain times (eg an air compressor cannot be used other than between 7am and 8pm Mon – Sat and 8am and 8pm on Sun/pub holiday). A breach of these regulations can result in an offence and accompanying penalty.
Let me know if you have any questions.
Regards
Chris
Chris KerinSenior Lawyer
———————————-Hi Hasbean
The water pipe will be common property so long as it is not for the exclusive use of one lot. I assume it is common property otherwise the owners corporation’s insurance would not have paid you.
The fact that the carpet:
– in your bedrooms was not covered by the OC’s insurance; and
– was covered by your insurance,
does not exonerate the OC’s liability to compensate you for all damage to lot property caused by defective common property.
The OC is liable to you for your losses and you are entitled to recover such losses from the OC (including the excess). Whether or not the conduct of the OC is normal is not relevant.
Indeed, I would expect your insurer to consider recovering monies paid to you from the OC.
Regards
Chris KerinSenior 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
Hi Chopsuey
Original windows, locks, handsets and sashes installed at or before registration of the strata plan are common property but those items may be the owner’s responsibility if the strata plan was registered before 1 July 1974. Further, any deadlocks installed after registration of the strata plan will be the owner’s responsibility.
Regards
Chris Kerin
Senior 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