[Tiaeki]

Major garden work has commenced without any notice to tenants and owner-occupiers. An application has now been made to NCAT for a hearing probably in September. Does NCAT take a dim view of Owners Corporation declining mediation?

[Tiaeki]

Thank you both for the advice. Part of the problem is that the Strata Committee has a conflict of interest in an issue like this. Three of the four Strata Committe members have a business interest (2 are investors and the other uses her property for AirBnB – and she is really pushing hard on this). What they are proposing is not in the best interest of the Owners until it has been discussed and agreed to at an AGM. In the meantime, we have lodged an application with NCAT and have advised the Strata Manager and Strata Committee that work cannot be undertaken until it has been resolved either via the tribunal or at an AGM.

[Tiaeki]

Section 37 of the Strata Schemes Management Act states that: It is the duty of each member of a strata committee of an owners corporation to carry out his or her functions for the benefit, so far as practicable, of the owners corporation and with due care and diligence. In the context of this  Act what does due care and due diligence mean?

[Tiaeki]

In regard to serving on an Executive Committee, how is the requirement of  ‘a fit and proper person’  determined? Given that there are over 60 emails from Owner 1 of a vexatious and defamatory nature; that Owner 1 lied at least twice during the AGM (she stated that personal items had been removed from the common property – they weren’t, and she had the approval to fix a sign on common property – she hasn’t); and that she humiliated Owner 2 at the AGM by calling her a  ‘crazy lady’, is there a case that Owner 1 is not ‘a fit and proper person’ to serve as Secretary? Who can determine this? NCAT? The Owner’s Corporation?

[Tiaeki]

It is a situation brought about by an owner who rents out AirBnB rooms in her apartment and it seems, on the face of it, is trying to discredit the long-serving Secretary. The Secretary (and the Strata Committee) has opposed the AirBnB host moves to put seats on the common deck (presumably so her AirBnB customers can bask in the sun). There is a narrow laneway on side of the apartment block that once was a place to dump used condoms, syringes etc. The Secretary has rehabilitated the laneway which is now lined with garden pots and a couple of worms farms. Recently the Secretary received a notice stating that she was in breach of two by-laws: obstruction of common property; and damage to lawns and plants on common property – an owner of a lot must not (b) use for her own purposes as a garden any portion of the common property.   Residents are still able to use the laneway (very few do) as the pots and worm farms are on one side, and I don’t believe that the laneway is being used by the Secretary for her own purpose, hence my question about ‘use’. Thanks.

[Tiaeki]

Thanks Jimmy – here’s an update. The Chair/Airbnb businesswoman is now trying to discredit the Secretary and has in an email to the Executive Committee accused the Secretary of the following

1. that the Secretary spat in her face.
2. that the Secretary’s behaviour is causing great distress to several residents.
3. that the Secretary is intimidating and harassing others on a daily basis.
4. that the Secretary’s behaviour is inappropriate and unwelcome.
5. that the Secretary is operating well out of the ‘restrictions’ of her role.

In addition to this, the Chair/Airbnb businesswoman has damaged the Strata noticeboard by drilling out the lock barrel so that she could remove the copy of the by-laws. 

Know any good lawyers?

[Tiaeki]

Whale said:

I remember the original post, and it's prompted me to now include an objective statement on Lots' condition, purely from a common property / OC's perspective, under Item 18 (other items) in the S109 Certificates that I prepare for our Plan. 

In that way, the Solicitor/Conveyancer acting for the Purchaser/s can appraise their clients accordingly. 

JimmyT said:

QUESTION: I live next door to a unit that has recently sold. Over a ten year period, the property  has been continuously let via one real estate agent.

I went to a recent open inspection and was appalled at the property's condition. In addition to a small part of the hall ceiling falling in, most of the rooms had extensive water damage from the common property deck above.

The Real Estate Agent's selling spiel was that the damage was the responsibility of the Owners Corporation and the new owner would not have to pay for the repairs. Given that the agent never reported any damage to the Owners Corporation, surely the cost of repairs should not rest entirely with us. What are our options? – Tiakei via Flat Chat Forum*.

ANSWER: There's not much you can do now the property's been sold.  You have a duty to maintain and repair common property.  You could try suing the previous owner for contributory negligence but it would probably cost much more than you'd save just by paying for repairs.

However, you could have a detailed (but non-defamatory) report, highlighting the name of the agent, minuted at your next EC meeting and distributed so that other owners know to avoid them.

 *This is an edited version of the original posting you will find here

What we thought would happen, has happened. The new owner, who bought the  unit for investment, has demanded, through his lawyers, for the remedial work to his unit  to be started immediately. The work to his unit is on a long list of remedial work being undertaken, so the OC are inclined to tell him to wait his turn. One of his demands was also for work to be done on what he thinks his parking space, however, this is common property and not on title. He was led to believe by the selling Real Estate agent that it was.

[Tiaeki]

Dear Jimmy,
I live next door to a unit that has recently sold. Over a ten year period, the owner has leased the property to several different tenants. The property  has been continuously managed by the one Real Estate Agent. I took the opportunity to inspect the unit at a recent open inspection and was appalled at the property’s condition. In addition to a small part of the hall ceiling falling in, most of the rooms had extensive water damage from the common property deck above. The Real Estate Agent’s selling spiel was that the damage was the responsibility of the Owners Corporation and the new owner would not have to pay for the repairs. My question is given that the property has been managed continuously by the one Real Estate Agent who did not report any damage to the Owners Corporation during the ten years, surely the cost of repairs should not rest entirely with us? What are our options?
Many thanks,
Tiaeki

[Author]

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