[TrulEConcerned]

I will follow up your recommendation of contacting an experienced strata lawyer. Thanks for the good advice.

[TrulEConcerned]

Jimmy thanks again for your perspective.

I hear you regarding going after the lot owner and not the SC, as per the Bannermans’ article.

In our case we did just that. After reviewing the history, it seemed that the lot owner (previous to the existing one) did not include the hard floor in her application for renovation approval. Not to the OC or the local council. So yes, in our case we focus on the (current) lot owner to remove the flooring and for NCAT to remove her from the SC as breaching by laws is not compliant with ss 37 and 260, we assert.

The reason the SC is involved in our matter is  due to another SC member who asked for his renovation to be approved at a general meeting where the SC and strata manager decided that nobody was allowed to attend. Owners could only vote ahead of the so called (person free) meeting. We asked NCAT to void resolutions (which were all passed at the so called meeting) because a proper understanding of the ramifications of the renovation was denied to the OC. We believe that the SC member put his own interest ahead of ALL owners, breaching ss 37 and 260

 

 

[TrulEConcerned]

Jimmy, thanks for the reply and the names of solicitors. The Bannermans article is good news. In the building concerned, the by laws in place are the model ones eg “peaceful enjoyment” and “floor covering”. And both over the years have being breached.

What I cannot understand is that if there is no doubt breaches have occurred (records indicate the unapproved flooring was brought to the SC’s notice several years ago as it was disturbing  neighbours and nothing was done about it by the OC), what could a solicitor defending the matter possibly achieve?

Persuading the other side not to continue with the case seems to me to be the only strategy. Or am I mising something?

For the record, we included breaches of ss 37 and 260 that we believe have occurred as well.

[TrulEConcerned]

Vermont, well done on your victory, but the fact that you had to spend all that money just to get neighbours to comply is an outrage that must be fixed by the Minns government. Surely if such a breach is upheld then the breacher should be made to pay your costs to deter others.

It seems that folks who breach by laws clearly factor in that a victim of the by law breaches will think twice before dragging them to NCAT as it requires opening up their wallets.

Case in point: a neighnour installed hard flooring without OC approval. She does not deny it, how could she? We have proof. But as a SC member, she has the backing of the SC and will not remedy the situation.

We applied to NCAT. She asked and received approval to be represented by a solicitor on the OC’s dime.

We don’t understand how a solicitor was appointed as the OC ignored ss 103 and 105 SSMA.

We are representing ourselves as we can’t afford a solicitor. NCAT made clear that if she wins we may have to pay costs.

Can anyone indicate what are our options?

 

[TrulEConcerned]

Jimmy, the links you shared and your elaboration on the issue are appreciated. I was wrong and my strata mgr, whose view seemed to make sense, in the context of wooden floors being secretly installed by a previous unit owner, which are responsible for noise transmission to others,  means that if the OC or NCAT insists that the insulation needs to be replaced, it would be the current owner and not the OC who would have to pony up the dosh. Interesting indeed.

[TrulEConcerned]

Jimmy, I beg to differ.

If the plans approved by the OC did not mention the roof space, but modifications to the roof space were made, I can’t see why the present owner is liable for anything. He bought in good faith.

Are purchasers required to inspect any renovation approved by the OC to assure themselves that it complies with what was specifically approved?

Surely a good OC would have hired someone to inspect the works once completed to check if they were in line with what was approved.

If the completed works were signed off, presumably the OC had no issues with what was built.

If the OC failed to verify the completed works, surely it’s for the OC to rectify (if they want to).

That’s my view and my knowledge does not even rise to the level of bush lawyer.

The only alternative scenario I see, which I think is very messy, is for the OC to demand the current owner reinstate the roof space and in turn the current owner could sue the vendor (assuming he can be located). Messy.

 

 

[TrulEConcerned]

StrataChair, you suggest hiring a lawyer, but that is not always affordable or if affordable, often exceeds the damages sought. Take my case: at NCAT, self representing, I won orders for the OC to repair common property by a certain date. They failed to do so. To compel them, I needed to return to NCAT, pay to file again and if I decided to hire a lawyer, then I would be up for $$$$. There was no guarantee that I would even be awarded my filing costs (back from the other side), let alone the legal bill.

Why should an owner be forced to pay fees way out of line with the cost of the required repairs, which are obligatory for the OC to maintain?

[TrulEConcerned]

Hey doozy,

had the owner sold with the third bedroom, I believe that a future owner would not have to pay to fix the illegal renovation. It is likely that the OC would have to pay to fix it.  After all, the new owner did not undertake the illegal work.

[TrulEConcerned]

Thanks kaindub.

Given few records could be found in the strata manager’s possession and SC members asserted they had no records in their possession, it is clear that your recommendation, being

So the moral of the story is to make all decisions at properly convened meetings, and record them and keep them in a minute repository

works only if those who make decisions choose to do so in a transparent manner at properly convened meetings. Most SC I have encountered prefer to document very little, which causes problems for owners in the future.

It seems there is little an owner can do if a SC and/or strata mgr choose to document little and then deny possessing the few records that should be available.

Maybe it’s time for penalties for SC members and strata managers to be handed down for NOT documenting decisions and NOT retaining ALL records for the legislated 7 years.

I suspect that will trim down the paddock full of clueless wannabe SC members when they know they’ll be held responsible for their actions.

[TrulEConcerned]

Jimmy, my post was a tad clumsy. Yes, in most cases folk would ask NCAT for an Order to the OC to get on and perform the works. My point was that if such a long period of time elapsed between the OC being made aware of the problem and the matter being heard, then it is not unreasonable that an owner may have obtained quotes, sent them to the SC/OC, heard nothing, time marches on, owner decides it’s time to organise the repairs himself and then at NCAT would seek reimbursement for his expenses via an Order from NCAT.

[TrulEConcerned]

Another option I was informed of recently is for you to ask the OC for a license. That is, the land always belongs to the OC, but for a period of time, say 5 yrs, only you can use it. Presumably for an annual fee or for something in exchange. Argue that you’ll look after the land, pretty it up etc AT YOUR COST, plus you’ll pay an annual license fee of $5 and in return it’s exclusively yours for 5 years, unless extended.

[TrulEConcerned]

Not exactly.

If mediation fails, then you can mosey on down to NCAT and file a claim seeking the OC pay for the damage. Basically you use the same paperwork you used in medication, but this time you pay a fee.

You cannot make the repairs and go to NCAT expecting you’ll be awarded reimbursement. From my experience that is not how it works. Regardless of whether you sell, when you sell or if you sell, the matter is your lot versus the OC, not you personally.

If I were you I would:

1. Go through the motions of my earlier email;

2. Long before you attempt medication (ideally after you get a date for mediation which you’ll get 10 days or so after filing for mediation), go and ask a strata lawyer, like the firms sponsoring this website,  for a quote to represent you at NCAT in this matter;

3. Also ask for their estimate likelihood of success at NCAT. Granted it will be a guess, but an educated one;

4. Ask the lawyer what are the chances that if you hire him to represent you and you win, that NCAT will order the OC to pay his fee? From experience (I am not a lawyer) I believe this turns on what you allege was done or not done b the OC. Not addressing repairs (s. 106) is to my mind, cut and dried; and IMHO very important

5. If you go to NCAT and are legally represented, get the lawyer to prepare and file the claim with NCAT. Not you. If nothing else, the OC will see you’ve done your homework and secured counsel, so they may, hopefully fold like a cheap suit sooner rather than later.

 

[TrulEConcerned]

An owner cannot willy-nilly make changes to common property, such as repairs,  and expect to be reimbursed by the OC without showing that you have behaved reasonably. The fact that you may sell is not relevant to your rights to have the damage fixed.

Consider taking the following steps:

1. Get 2 quotes from tradesmen for the job;

2. Write to the strata committee and strata mgr exactly what the problem is;

3. Make clear how long the problem has persisted;

4. Remind them how you have suffered;

5. Remind them that you have brought this to their attention on XXX and again on YYY and to date the have failed to act;

6. Their failure is a breach of their duty under s. 106 SSMA;

7. Include the quotes in your correspondence to the SC and strata mgr;

8. Tell the SC and strata mgr that they have, say 2 weeks to fix;

9. Tell the SC and strata mgr that you have applied for mediation on the matter as a prelude to taking the matter to NCAT, as you are not confident the property will be repaired by the strata. If the damaged property is rectified by them before mediation is to take place, you will withdraw your mediation application. Otherwise you look forward to seeing them at mediation;

9. Call 13 32 20 (NSW Fair Trading), select the option of STRATA and they’ll tell you how to go about lodging a mediation application. Have the quotes from licensed tradesmen ready to attach to your application. Note attempting mediation is a prerequisite to applying to NCAT. Whether an agreement is struck at mediation between you and the strata or no agreement is struck or the strata doesn’t turn up (they don’t have to), the fact that you attempted is enough to apply to NCAT.

Good luck!

[TrulEConcerned]

@Jimmy

I agree with your thinking. The OC’s liability is IMHO indeed unlimited. I suppose some owners don’t want to concern themselves with the time consuming tasks of actually being informed about insurance policies and will willfully delude themselves as to what is and what is not.

 

[TrulEConcerned]

@Boronia

Thanks for the feedback, recommending I look at the insurance policy.

In regards to EXCLUSIONS from PL coverage, our policy states:

1. in connection with any liability for Personal Injury to any employee arising out of or in the course of their employment with You.
2. in respect of liability imposed by the provisions of any workers’ compensation, accident compensation or similar legislation applying where Your Insured Property is situated.

3. in respect of:
a. damage to property belonging to, rented by or leased by You or in Your physical or legal control, other than as provided under the operative items of Policy 2;
b. damage to property belonging to any person who is deemed a worker or employee within the provisions of any workers’ compensation, accident compensation or similar legislation applying where Your Insured Property is situated;

Correct me if I am wrong, but surely a court would hold that these policy exclusions targeting an “employee” or a “worker” of a maintenance company,  would equally apply to a person who is self employed?

[Author]

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