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Sir Humphrey makes good sense. Raise the matter at the next AGM, assuming the parking you refer to is truly a problem. Include commentary as to what problems you have endured or witnessed – and for how many years – when illegal parking takes place.
You could fast track this by submitting a motion to the Strata Committee ASAP. Do not wait until you’re told there is an AGM coming up or worse, first hearing about the AGM when you receive the Agenda is the post, because by then you may be too late to submit a motion (note many strata schemes do not extend owners the courtesy to submit motions for listing in the Agenda of an AGM).
You could propose a by law to the effect that anyone who owns a lot or leases a lot or resides in a lot or works at a lot at the scheme irrespective of whether said lot has or does not have access to a car space (or spaces), is prohibited from using the visitors’ car spaces for any time for any reason without prior written approval from the Strata Committee.
In the above suggestion, “lot” includes both commercial and residential premises.
See what the strata committee come back to you with.
Good day nb525,
Sorry to hear of your calamity.
I asked a building manager who has seen such issues many times before. He informs me that he understands the situation is as follows:
1. If the cause of the water leak is a common pipe servicing the unit above, then the strata scheme (i.e Owners’ Corp) must make good any damage to strata assets such as your ceiling, windows, built in cupboards etc, because the pipe is an Owners’ Corporation asset;
2. But if the cause is the hot water tank, then liability is on the shoulders of the unit holder whose tank blew, personally or via his insurance; and
3. Regardless of whether (1) or (2) took place, damage to your carpet, clothes, electrical appliances etc is your responsibility. Either you claim on your contents insurance or you need to pony up the money for repair or replacement. Neither the strata nor a neighbour are liable for damage to your contents.
I hope this clarifies the issue.
Erte, I agree with Kaindub. Treat the unit as never having been sold or alternatively, sold many times. The liability is attached to the unit regardless of owner or sale.
Jimmy suggests that a thorough strata records search be undertaken by the purchaser. I agree. But what happens when either the strata records are missing or shed little or no light on this large body of work? To that Jimmy says: “If the vendor deliberately misled them, then the new owner can sue”. I would go further. Deliberate misleading is a definite no-no, but so is the vendor not sharing all the information at his disposal which would influence a sale.
As mentioned, the opinions expressed in this forum are products of experiences of owners or residents in strata schemes. They are personal opinions of layfolk and not legal advice.
You mention that the SM asked you to back date your votes. The SM did this in writing or verbally? If the former, then you’re on solid ground.
In my experience a SM is little more than the post box for or microphone of the OC. Before applying to NCAT against the OC you will need to apply for mediation with the OC (which they may or may not attend). It will take no less than 6 weeks from when you apply online for mediation until the matter is heard.
Be sure of what you want to get out of mediation.
If mediation fails, only then you can apply to NCAT. That’ll be heard no less than 8 weeks after you apply for it. As I mentioned earlier, complain separately about the SM and hopefully you, like me, will get a positive outcome against the agent which will fortify your case at NCAT.
Best of luck.
Jimmy, thanks for the link. I’ll have a listen to the podcast.
Jimmy, serious work needs to be done by the incoming Minns Dynasty to make NCAT work better. S. 232 is but one of many aspects that needs to be reformed.
Case in point: in March 2021 I asked an OC to rectify common property (s.106). They ignored my request. They subsequently attended mediation 6 mths later, which I applied for, and at mediation they agreed to fix the item within 2 months.
Surprise, surprise, they did not.
NCAT hearing the following March (2022), yes one year ago, required them (s. 232) to attend to the item within 2 months. It’s a year since that NCAT hearing and little has been done by the OC to fix the item. And what was done was not done as stipulated by NCAT.
In order to bring the matter to a reasonable conclusion I had to re-apply to NCAT and pay again a filing fee. The matter is currently underfoot.
From my neck of the woods there is nothing in the way of penalties or sanctions that NCAT can throw at lazy or useless committee members that would encourage them to do their job. No fine, no gaol sentence, no public shaming etc.
Until strata schemes are put on a similar level as businesses when it comes to bad behaviour, dereliction of duties, misappropriation of funds etc, some committee members will do little other than give lip service to their legal obligations by simply attending mediation and NCAT hearings (and saying what they think the mediator or Tribunal Member wants to hear), safe in the knowledge that the worst of all worlds that could possibly befall them is to actually be forced to have to spend time and effort fulfilling their duties.
Perhaps Flat-Chat could inform the incoming Minister for Fair Trading just what needs to be done. Flat-Chat could seek input from its readership as follows:
(a) Solicit (from members) strata issues that members have come across that needs major overhaul in order to work better (in the interest of owners);
(b) Call for suggestions as to upgrading the provisions of the SSM Act;
(c) Request ideas to give mediators some teeth; and
(d) Invite recommendations to improve how both the SSM Act and NCAT Act are applied by NCAT.
As someone who has taken on a do-nothing (or do for themselves only) committee, I can tell you what I learned which should inform your next steps. Two things come to mind:
1. ACTION AGAINST THE OWNERS’ CORP
Say you or like minded people want to join the committee, in order to get things done, but don’t have support. If you take the Owners’ Corp to NCAT – as you do not take the committee per se – you’ll learn:
(a) That NCAT cannot put you on the committee in addition to the lazy so and sos on the current committee as it does not have that power;
(b) Asking NCAT to remove those doing nothing on the committee from the committee is something NCAT can do if you ask; and
(c) Making clear that the status quo (committee and agent) are not doing the owners any good, you could ask NCAT to – via s. 237 SSM Act – order a compulsory managing agent be appointed where he/she will attend to all issues he/she sees needs actioning e..g broken items, replacements needed etc. Note: when a compulsory agent is in place, nobody, not you or the current committee members can direct or instruct the agent as to what needs to be done. So it’s possible that not all of what you think needs doing will be done. And if it’s done, you’ll have no say in who does it. Appointing a compulsory agent means the existing committee is extinguished.
2. ACTION AGAINST THE STRATA AGENT
You could make a separate complaint against the agent alleging he/she is not performing his/her role
according to the Property & Stock Agents Act via filling a form on the following page
https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint
go to
realestate, property management and strata
and click on it
This is separate from complaining about the Owners’ Corp, but it should help if your ducks are in a row,
I complained recently about the agent not doing as she should and in fact as she promised. NSW Fair Trading looked into it and indicated that they “took action”. Under the law, you and I are not told what action was taken. But we can be told if according to NSW FT our complaints had merit.
In any event, the agent – who always did the committee’s bidding – suddenly quit being our agent.
When you go to NCAT about the OC, it’ll help that you can show your complaint against the agent – which in your case you claim is “complicit” – was supported by NSW FT.
You raise an important issue, but offer an unrealistic solution when you write: Do we need a government-run insurer to ensure that cover is always available?
Who exactly do you think will carry the risk of a “government run insurer”? Hint: us taxpayers. Why should we? Does the government run businesses better than the private sector?
Even if it did, why should taxpayers take up risks that private companies will not touch? You are right in indicating that reform is needed of how the insurance market works. good place to start would be to break up the giant few who under an array of names run the industry like a club.
In my experience, insurers may refuse to offer cover for many reasons, for instance, if some item(s) at the strata not attended to in a timely manner eg windows.
But even that leaves you some room to wriggle. Your insurer may consider the state of your windows to be so poor and not worth taking a risk on eg they may fall out and hit someone which will give rise to a public liability claim.
I would approach the matter in the following manner:
(1) Ask the current insurer, “given the current state of the scheme, just what will they cover and what will they not cover in a renewal” and look for another insurer for the balance of the items eg public liability insurance (I am not sure if such insurers exist, but this is what I would do); and
(2) Ask the insurer ” please list what you want us to fix and in what time frame”? If you, Chesswood, agree to that, ask the insurer if they would insure your scheme now, for all the risks in the policy just expired and make clear that you’ll undertake to address their concerns in the time frame they seek.
Failure in (a) and (b) leaves you the option of finding another insurer, whose premiums are likely to be much higher.
As you know, this forum offers insights into the experience of owners, renters etc. It is not legal advice.
With that in mind, have a look at the Strata Management Agency Agreement that your scheme signed with the managing agent. Look for where it mentions representing the OC at courts and tribunals and what it says about the matter.
In my experience in several schemes the agent is paid to attend court or tribunals and the OC (or SC more often), decides – before the matter is heard – that it’s best for the manager to attend rather than the SC executives. I have not come across a situation where an agent represents an OC (but does not consult them before hiking to court) and after the hearing demanding payment from the OC for his unadvertised attendance at court (even if it’s not required by the Strata Management Agency Agreement).
I have no direct knowledge of councils’ policies. You could call them and ask.
That said, if I am not mistaken, councils have the power to fine he who leaves his bin outside for an unreasonable period, but does not have to fine if it does not want to.
The fine would make the relevant home owner r- not the strata – responsible. Usually bins are marked so the council knows who is responsible and can fine the person directly. If the OC is fined, say the bin is not clearly identified, then all you need is to prove (eg photo) whose bin it is for the OC to pass the bill to that certain homeowner. If you’re really fed up with the situation, pass the photo to the council explaining whose bin it is. That way, in case the OC is initially fined, in the future the person responsible for leaving bins outside will be fined directly.
Jimmy, I stand corrected. Thank you for pointing this out.
While on the topic of ABB, I can say that in my experience ABB couldn’t give a hoot about landlords. Their focus is guests and hosts.
Case in point: when I tired of tenants subletting via ABB I contacted ABB and made clear the “host” has no legal right to make my premises available and I want it stopped forthwith. I made clear that the tenant had neither my consent nor was there any provision in the lease to sublet for <90 days. ABB’s response to me? Talk to the hand.
I had to go to NCAT to put a stop to it.
I quickly read the posts as I have had a very long couple of days, but even so, wish to pass on something I learned a few weeks ago. Apologies if I misread any post.
When it comes to by-laws prohibiting STHL, a strata can adopt by-laws that limit short-term rental accommodation in their strata scheme, by banning it in lots that are not the host’s principal place of residence.
However, if someone lives in a strata property as their principal place of residence, the by-law has no effect on them. In fact, they will still be able to rent out their premises in part or in whole while they live there, or while they are temporarily away.
In short, the 3 mth rule you describe has no impact on an owner occupier.
When it comes to notification or contacting the short stayer, I would want to keep in touch the owner occupier who would or should inform his/her “guests” of any complaint by the OC. Short termers in my experience have no interest in adhering to recommendations or directives from third parties ie anyone but the “host” or in this case, AB&B.
Report the matter to your local council.
For instance, Sydney City Council has a page just for this purpose
https://online.cityofsydney.nsw.gov.au/ReportIssue/BinLeftOut
Many councils have similar online forms. It seems to me that you’re best armed to complain after the
bins have been left outside in excess of the period council allows.
I am unsure what fine Sydney CC imposes but Brisbane City Council does issue fines for bins not
moved inside within a prescribed time.
On the issue of subleasing, I had an apartment where the tenants decided every now and then to holiday abroad and sublease the premises via Air B&B, without telling me or telling the OC.
I had no idea it was sublet.
That said, even if I was aware, I would not bother with the details of the sub-lessee because the lease imposes obligations on the tenant (or “head tenant” as some call them). A short term sub-lessee would leave long before wheels were in motion to alert him to a breach of by law or common decency.
The head lessee’s contact details were always with the OC.
The most effective solution IMHO is to make clear to the “head tenant” that in the event of leasing the premises in whole or in part for a period that falls within the duration of the “head tenant’s” lease, that the “head tenant” will be responsible for the conduct (and consequences) of her guests, sub tenants etc.
Our OC was happy with that solution, if for no other reason than sub lessees are often short stayers and providing their contact details to the OC or strata agent is superfluous when (a) ALL correspondence was sent electronically to the “head tenant” who could if she wished, forward such information to its sub lessee; and (b) chasing sub tenants up for damage etc after they have scooted away is also a fruitless endeavour. Both the landlord and OC can hold the “head lessee” accountable for the omissions and commissions of its subtenants.