[Millie]

Thanks Thom/Isydowner

I’ll give it yet another try, based on what you’re written.

Re your:  “NCAT are duty bound to install a Compulsory Strata Manager if the OC cannot function properly…”  In our case the CTTT turned down a 2013 request which had more than 1,200 pages of supporting documentation and in late 2015 they turned down another request, citing that there wasn’t any substantial evidence provided…and that such an appointment is a draconian measure, meaning that they apparently don’t think it’s a right and proper measure to appoint a compulsory strata manager in this day and age.

We have mountains of Legislation written in this State; just try getting any of it applied/enforced.  I call it ‘death by attrition’.

Best wishes

[Millie]

Bathroom Renovations:

The difficulty I’m up against is that I advised our SMA five months ago that I wished to undertake a bathroom renovation.  They are insisting on a General Meeting/Special Resolution/Registration on Title/Legal Fees/Printing/Postage/Administration Fee etc etc.  Last year they quoted $7,000 for a General Meeting…so then add all additional Legal expenses etc.  

Despite repeated requests to issue a clear quote they have refused to come to the party.  

Having undertaken a kitchen renovation some two years ago, dealing with the EC/SMA was an absolute nightmare.  We ended up at the NCAT when all the honorable people in charge of our scheme told a whole pack of porkies to the NCAT.  I’m reluctant to do anything now without knowing what I will be charged for.

Months of ‘nil response’ from the SMA has seen them last night give me an 18 hour deadline to say ‘yes, go ahead with a General Meeting’ when they still refuse to clarify how much one will be invoiced for their (mis)management of this process.

Happy to use registered/insured trades people to undertake the renovations with responsibility for workmanship coming back to the tradies/me.  

Very unhappy to allow our SMA to invoice me at their desire for their ‘services’…

There has got to be an easier way?  Mind you, where I live it’s called “payback” for picking them up on their Illegal activities over so many years.  Resident Owner feel as though we are on every occasion held to ransom over the management of our homes.  Which brings us back to the issue of NCAT decisions…

[Millie]

In the midst of a NSW Parliamentary Inquiry into the adequacy of Legislation surrounding short-term tourist/visitor letting in residential properties and in the week before Christmas, Airbnb has gone on a major advertising blitz in the shadows of Parliament House with billboards in Martin Place, Circular Quay and all around the City pushing their ‘so, so touchy/feely’ rhetoric.  

So much for respect for due process.  But then, none is expected from Airbnb and their likes.

Airbnb and short-term letting en mass:  coming to your building soon…?

[Millie]

All I want for Christmas is a hot shower, but it looks like it isn’t going to happen…

Here’s to a safe and hopefully ‘corrective‘ 2016!

Season’s Greetings to all

[Millie]

Hi JC

Further to Jimmy T’s advice, here is what I received from Fair Trading:

“An owners corporation may also consider adopting (unless it already has) Model By-Law 21 for residential strata schemes “Compliance with planning and other requirements” as provided under the Strata Schemes Management Regulation 2010.  While this model does not restrict short-term leasing, it does proibit the illegal use of a lot and restricts the numbe of occupants to a lot.  An extract of this model by-law is included below:

(1) The owner or occupier of a lot must ensure that the lot is not used for any purpose that is prohibited by law.

(2) The owner or occupier of a lot must ensure that the lot is not occupied by more persons than are allowed by law to occupy the lot.

If your owners corporation seeks to adopt this bylaw, it must be approved by special resolution at a general meeting and registered with the Land and Property Management Authority within two years of its approval.”

The link to this Model by-law is here:

https://www.austlii.edu.au/au/legis/nsw/consol_reg/ssmr2010333/sch2.html

I put this Motion forwarded at our 2013 AGM.  The Motion was defeated.  I’ve put Motions seeking ‘compliance with Legislation’ on all sorts of issues at our past three AGM’s – all have been defeated.  I don’t expect your Owners Corporation would be as blatant, bold and belligerent as ours in chucking all compliance issues out the window.

Good luck!

[Millie]

Thanks JimmyT

Question:  Can evidence from earlier Submissions (plural) be represented in an appeal or are the issues of ‘Res Judicata’ and ‘Issue Estoppe’ be thrown at us again?

Question:  Can new evidence be presented to the NCAT in an appeal?

Question:  NCAT says appeals must be lodged within 21 days but one may ask for an extension of up to 90 days – does anyone know under what circumstances an extenion to 90 days might be granted?

With thanks and appreciation in anticipation

Millie

[Millie]

An update: the EC Meeting normally held immediately after the AGM was held tonight.

The minutes of the EC Meeting of a couple of months ago – no agenda sent and no quorum reached – were excepted this evening.

Motions which I requested in writing be placed on the Agenda for tonight’s meeting weren’t included.

Six new EC members joined the old three – all voted against compliance motions at the recent AGM.

And the NCAT is of no help.

If there’s a magic key one needs to get the ‘system’ to work, I wish I knew where to find it.

Without a doubt, I’m considered the biggest ratbag imaginable by the owners on the EC.

And our Caretaker who has run a largescale illegal operation in the building for the last 18 years, and controls the EC, is as happy as Larry.

Streuth…Strata!

[Millie]

Appreciate your advice. Thanks again Whale

[Millie]

(JimmyT to decide if it’s appropriate to publish this on the forum)

Whale – thanks for your considered response.

The Order sought:  the appointment of a compulsory strata manager.

The NCAT ‘wasn’t satisfied that the draconian step of removing the operation and management of the strata out of the hands of the owners as constituted by the OC and into the hands of a compulsory strata manager is appropriate…‘ And that ‘such an order is only appropriate if any of the circumstances in section 162 (3) are proven on reliable and objective evidence.’  The 10 Owners who wrote in support of the Submission and I dispute this.  Do I now ‘fight’/dispute the NCAT Adjudicator?  (Who has the strength?)

At our 2014 and 2015 AGMs a Poll Vote on all Motions dealing with Legislation was called for, in writing and in good and generous time prior to both meetings.  On both occasions the EC Chairman (former State MP) and Strata Manager refused the request and proceeded with a ‘show of hands’ only.  At the meeting held a couple of weeks ago, I suspect the now semi-bald and law abiding voting group could have had the majority, based on units of entitlement.  (I regrettably wasn’t able to attend so was unable to scrutinise the proxy forms in favour of the Chair/SMA.)

The SMA has been asked to confirm when we might expect to receive a copy of the Minutes – it might then be possible to tally the units of entitlement and ascertain whether or not we could have swung the meeting in favour of compliance however, as per usual, none of our communication is ever responded to, so…

I’ve made a list of the of Legislation which was covered in the AGM Motions.  All the Legislation is clear – written in plain English and in no way confusing.  My honest opinion: it is very telling that the controlling cohort – Chairman and Strata Manager (often on behalf of the Caretaker) – used proxy votes issued in their favour to defeat/declare ‘out of order’ the numerous Motions calling for compliance with Legislation on the following:

NSW Strata Schemes Management Act:- 

–  Schedule 3, 2, 6(3), 9(3)
–  The entirety of Schedule 3
–  Schedule 2, 19(2)
–  Section 83
–  Schedule 2, (3)
–  Section 65B
–  Section 63B
–  Schedule 3, Part 1, 3A (1)
–  Sections 96, 97, 98, 99 and 119
–  Sections 100, 108 (3)(h)

Determination of Development Application, Council for the City of Sydney, Application No: A==-+++++:-

–  Residential Use 5(c)
–  Residentual Use 5(a,c)
–  Section 88B

NSW Conveyancing Act 1919

Federal Insurance Contracts Act

Environmental Planning and Assessment Act

Caretaking Agreement (date –/–/—-) – The Owners – Strata Plan No. (….) and The Caretaker

Property Stock and Business Agents Act 2002, Section 57

NSW Land and Environment Court, Case number %%/@@@@, Council of the City of Sydney v The Caretaker

Where to now?  I’m just about defeated.  Yet, it’s our homes, our financial security and exposure to unlimited liability we’re talking about.

[Millie]

Thanks Whale.  Our problem is (amongst so many others):

One block of owners can’t be bothered engaging in the process of AGM/EGMs, not matter the amount of corresponding and lobbying we do.

Another block of owners – alas, still a majority – support and flick their votes to the Chairman and EC Members…all Investor Owners…who are in cahoots with the Strata Manager and Caretaker and those responsible for so many blatant wrongdoings.

Another block of owners – who just fall short of enough votes to oust those breaking/breaching laws all over the place – is pulling their hair out in frustration.

There are multiple breaches, as per your lisitng above. The NCAT has just sent us packaging again so there is never any assistance from them.

One quirky question: when an Annual General Meeting is called must it be the current Chairperson who chairs the meeting, or can another owner step up and insist on chairing the meeting, thus scooping up the proxy votes to the ‘Chairperson’ and staging a coup?

[Millie]

JC – might I add that at 187 Kent Street – the short-term letting operator was again Australuan Executive Apartments of Bridgeport infamy – press reports at the time (written by JimmyT) quoted two owners only at Kent Street who objected to the change of use to mixed use Serviced Apartments/Residential. City of Sydney fought the application brought by Aust Executive Apartments and investor owners – was it on behalf of the two owners who were objecting to short-term lets or did Council want to preserve the Residential status of the building(?) – and the L&E Court judged in Council’s favour.

It was this detail – 2 owners only – that sustained the resident owner at Bridgeport who was seeking to maintain the integrity of residents’ homes whilst frequently receiving pretty horrific threats from certain investor owners in the building.

City of Sydney finally took Bridgeport’s Australian Executive Apartments to the L&E Court and the decision was a foregone conclusion – Aust Executive Apartments didn’t even attempt to defend their short-term letting/ “Illegal Use of Premises”.

I’m not certain of where you stand on the issue but hope this information adds to the overall picture for you and AIDS with decision making.

Cheers

[Millie]

Have you considered that you would need to retrofit the entire building at massive expense?  See Building Codes of Australia Class 2 and Class 3.

You’d be dropping the value of all Lots in the property by an estimated 25% – our building has just had short-term letting sent away to hell, where it belongs, and already we’ve seen a great jump in property prices.

There’s a precedent where a Residential block in the City of Sydney wanted to do what is planned here.  City of Sydney refused to change the DA, obviously wanting to maintain the housing stock in the City, and the applicants took the Council to the NSW Land and Environment Court.  See NSW L&EC No. 10576 of 2006 187 Kent Street Pty Limited v Council of the City of Sydney:  application to convert 128 residential units into dual use residential/serviced apartments: “…in that appropriate amenity cannot be provided with a mix of residential and serviced apartments that share the same floor and access points…I find the proposed development is unacceptable…”

The residents in our Residential strata building – tenants and owner/occupiers – can attest that short-term letting and permanent residential accommodation isn’t in any conceivable way a ‘compatible use’.

Why would you want to trash a Residential property by turning it into a quasi-hotel?  Oh, short-term, quick cash?

Think long-term.  The plan to cash in on short-term lets is, in my opinion, a stupid, uninformed – and/or extremely selfish – idea.

[Millie]

Whale, I’ve busted a boiler over our strata and all the work, I can just see this happening in our building in a flash.  I’m already laughing at myself.

[Millie]

Hi IsItLegal

I have a copy of my Orders from the NCAT in front of me and can assure you it reads:  RT 15/37922 dated 22/06/15.  This Order number was for one Owner with their unit on wotif, lastminute.com, expedia.com (plus literally hundreds of other websites).  It concerns me that the NCAT says that this Order reference is “incorrect”.

On the same date I requested Orders against another Owner issuing ‘agreements’ through Airbnb. That Order number is RT 15/37925.  Check the NCAT for this and let us know if they are saying this one also doesn’t exist?

Happy to help you further if I can; you need only ask.

Millie

[Millie]

Dear IsItLegal

Re:  “The relationship between a host, AirBnB & guests takes the form of a lease….”  No it most definitely doesn’t take the form of a lease – not in NSW at least:

NSW CIVIL & ADMINISTRATIVE TRIBUNAL (NCAT) – Notice of Order – File No: RT 15/37922

Applicant: AAA      Respondent:  XXX (Airbnb agreements)  On 22-Jun-2015 the following orders were made:

The Tribunal notes that as between the respondent and those occupying his premises under short term tourist or visitor accommodation agreements the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, section 7 and section 8(h) of the RTA

 

Applicant:  AAA      Respondent:  XXX (lastminute.com, wotif.com, bookings.com, expedia.com etc agreements)  On 22-Jun-2015 the following orders were made:

The Tribunal notes that as between the respondent and those occupying his premises under short term tourist or visitor accommodation agreements the Residential Tenancies Act 2010 (RTA) does not apply: see, particularly, section 7 and section 8(h) of the RTA

Tribunal Member

– – – – 
Costs about $69 I think for each application – you have to name/pay for each person separately – at the NCAT.  Application is by way of the Residential Tenancies Act, not the Strata Scheme’s Management Act. You fill out a Tenancy Form obtained from the NCAT’s website and tick the box, ‘Other Person’ as the applicant, not Landlord or Lessee.  (They will try to block you applying – but it can and has been done, you must be insistent and tell them there is a precedent.)

You are looking to declare the ‘Airbnb (or any other short-term) agreements’ at your property NOT Residential tenancies, under section 7 and section 8(h) of the Residential Tenancies Act.  Once you have submitted all your paperwork you then go before a Tribunal Member in a hearing – it isn’t judged by an Adjudicator just on the paper submission.  It is up to the Respondent/s whether or not they turn up for the hearing.

Keep using the terms:  “The (Airbnb etc) Letting Agreements”…and…“They are not Residential Leases.”

Then, if your Development Consent says “permanent residential accommodation only”, and you have the Orders from the NCAT in hand, hammer your Local Council for all it is worth to get them to act against the offender.  Council has to then take action in the NSW Land & Environment Court to enforce their/Council’s Development Consent.  No excuses acceptable from Council.  There are case law judgments and precedents which can be referenced by them.

As per Jimmy T’s earlier writings, the issue of short-term letting in residential properties is currently before a NSW Parliamentary Inquiry – submissions close on 09 November.

Good luck!

[Author]

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