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Jimmy is spot on when he mentions an OC’s ability to resolve to no longer R&M common property. This happened in my building years ago when >80% residents (including me) were accessing free to air via Foxtel cable. At the time we had a very able strata manager who was alert to the SSM Act and would not have allowed such a motion to be listed if he knew it violated the SSM Act.
A few things come to mind:
- What is the current value of the stove? Given my experience at NCAT over damage to carpets, I suggest that the NCAT Member will look at your situation as follows:
Say it is a cheap brand (that is still sold);
Say it cost $500 and has 10 yr life.
Its value therefore depreciates by $50 per annum. If we assume 4 years have passed at the point you damaged
it,the stove is now worth $300 (ie. $50 x 6) depreciate by $50 per annum and 4 years have passed when you damaged it.
The length of your lease beyond the time it was damaged is irrelevant to this calculation.
So its value now is $500 minus (4 x $50) which is $300
Based on the above figures, NCAT I feel would say the value of the item you damaged which you yourself agree needs to be replaced as it cannot operate in its current condition is say, $300. That means your maximum liability is $300.
I suggest you look (but do not buy) for a replacement stove of the same standard, cheap, and give details to the property manager. Tell the property mgr that if the stove was in good condition but for the damage you inflicted, then no Tribunal would order you pay more than its undepreciated cost which in this case is $300. But the stove was not in good nick before being damaged by you. That is, its depreciated value was more than $200 meaning its current value is LESS than $300 given a previous tenant left marks. You therefore feel a fair contribution by you given the condition you received the stove is $200.
Taking my figures as an example, in your shoes I would push for paying $200 but steel myself for a demand for anything up to $300.
If the landlord takes you to NCAT he will have to prove the value of the stove with invoices, photos etc.
As to the suggestion of the landlord claiming on his insurance for what is called “Tenant Damage”, some recommend you pay the excess in that case. I think a landlord will not want to claim on his insurance because his future premiums may rise due to this claim. Also with well known one insurer I know of, such claims have an excess of $500, so clearly you’re better off even paying the $300 that may be asked of you.
In my experience, owners at a general meeting can vote to allow a strata committee (and by inference the strata agent) to spend say up to $500 (in the forthcoming year) per event without being required to hold a formal strata committee meeting, let alone an OC meeting to discuss the matter or consider quotes.
As to the mechanics of work being done, either one person on the strata committee can be delegated with the role of giving the agent the instruction to do the work or the issue is brought to the attention of all strata committee members, even by email and a majority must be in favour of the work being done before the agent is instructed.
Neither approach removes the requirement of the SC from minuting the expenditure retroactively, as kaindub states.
While such a cap, say $500, may work well for situations such as an emergency, many expenses I have seen are not urgent and I would be suspicious of any situation where the entire strata committee was not informed of an expense prior to it being incurred and allowed to express their views to each other, even by email, before instructing the strata agent to go ahead or not.
A few things come to mind, but first, a question:
Who owns the garden?
Is it the lot owner or is it the OC?
Sujenna, you misunderstand the point of mediation. It is not to formally resolve the problems in respect of the strata Act. It is instead to get the parties together informally and try to bridge the dispute(s). You instigating the mediation means you must attend the mediation, but the other side, the OC can choose not to attend, if they want.FYI, my recent mediation sessions lasted 3 hours each and were conducted by telephone.
Of course the OC’s non attendance means you can then go to NCAT straight away.
Even if the OC turns up, they may not agree to what you want.
Even if the OC’s representatives turn up and agree to what you want, that agreement may be worthless as they may go back to their bad behaviour the next day, as happened in my case (from where I took the matter to NCAT).
If you apply for mediation list on the application form all the grievances you have because when mediation will fail to solve all the issues, typically the mediator will list in his/her report on the mediation the issues that were not resolved or partly resolved. And that document is to be attached to your NCAT application form.
NSW Fair Trading’s website seems to have been renovated very recently. I suggest you look at point (3) at the following https://www.nsw.gov.au/housing-and-property/strata/disputes-complaints#domediation
You will find a tab for online complaint form to be completed.
Pardon me for being very old fashioned, but given my experience, the issue is clear as a bell.
A landlord for his/her own good would want to be seen (by NCAT etc) to have behaved from the get go in a reasonable manner.
As a landlord I lease out one apartment with a car space, but always priced it transparently with and without a car space. If I didn’t do it transparently, I would at least have an idea of what the car space is worth per week.
To follow Jimmy’s train of thought, AGH leased a premises with a car space. If that car space is denied her for any reason, (other than something she did), then she should be given a reduction in rent by the amount of the car space for the duration of the works. After all, if she paid for a 2 bedroom unit and all of a sudden 1 bedroom was say flooded by common pipes, then on what grounds must she continue to pay the rent on 2 bedrooms?
As to 86_strata’s point of “it’s nobody’s fault” and “Sometimes stuff just happens and we need to deal with it”, let me share a similar incident.
In one premises I am involved in, there was a NCAT hearing. The tenants took action seeking rent reduction for the noise and dust a neighbour created when renovating his unit. They also sought compensation for “hardship” the renovations caused them and sought to exit the lease w/out paying the early vacating fee. Quite a laundry list I thought! At the time I chatted to a recently minted lawyer as I was not interested in spending thousands on an established lawyer as that would have exceeded my expected downside at NCAT or court.
I argued like 86_strata does: “sometimes stuff happens”, implicit in that comment was that whatever happened was beyond the landlord’s control. The young lawyer I spoke to was confident that such external disturbances were not matters that required compensation as it was not the landlord who created or controlled the disturbances.
I reminded the tenants that “it’s not me renovating and disturbing you (the tenants). I am not only involved in the building works, I don’t even have influence over the neighbour, I am not on the strata committee or building committee and I was not given advance warning of the renovations”. I proved all of the points to the tenants before we went to NCAT.
NCAT was a win for the tenants, so I raised the stakes and went to the local court. It too sided with the tenants, finding, from memory that “sometimes renovations at neighbouring units or building take place and we can’t stop that disturbing our peace”. And here’s the kicker, the court summarised its view along the following lines: “a tenant has a right to peaceful enjoyment and sometimes a landlord, not involved in creating the disturbance or having any benefit from the disturbance, has to pay the price”. His Honour did not say “an absolute right to peaceful enjoyment” but it sure seemed that was his leaning.
Long story short, the tenants exited the premises w/out paying the exit fee and had a rent reduction. To finalise the matter very quickly I managed to get them to drop the compensation element of their claim.
Back to AGH, ideally before the works begin, I suggest AGH calculates how much she pays per day for the car space day and email the person she deals with: be it the property manager or landlord, that she seeks rent reduction of that amount multiplied by the number of days she is denied unrestricted use of the car space. Ask for a confirmation that your email was received.
In the interim AGH is to pay the usual rent, and not make any unilateral offsets/deductions for the inconvenience.
Regardless of whether AGH receives a confirmation that her email was received, when the works are over and she can access her car space, she should email the property manager or landlord that she have been denied the car space for so many days at some many dollars per day and that sum should be deducted from the next rent payment.
If she does not get a positive response then as Jimmy suggested, she should call NSW Fair Trading on 13 32 20 and ask what steps she can take to assert her rights. Mediation? NCAT?
Jimmy says that he’s sure she’d get a rent reduction if she went to Fair Trading. I am sure she would. She may even get more compensation if she argues that she suffered great inconvenience by having to find the time to scour the streets day and night for a place to park, every time for the period of the works. And possibly more still (by way of reimbursement) if she ends up receiving a parking fine(s) from parking on the street in the only available place within reasonable distance from the premises (where regrettably she exceeded the permitted stay in that car spot).
Jimmy – you’re correct. I did not spell my thoughts out correctly. The applicant indeed must show that he/she attempted Mediation and it failed in part or in whole, before getting the green light to go to NCAT.
Just asking – in many cases, your explanation of the benefits of Mediation make sense. Especially your point on determining how far apart the parties are, so that at NCAT everyone has a good idea of the chasm to be bridged. But I am involved in a couple of strata schemes where no good faith has been exhibited by the OC. In one case, an OC agreed in writing to doing something by a certain time and then ignored their promise completely. That is why I insist on giving everything (ie evidence) up front and early so as to flag that I am dead serious about the issues and can if need be at NCAT show not only the foot dragging by the OC in the time from Mediation to NCAT but also the time from when a matter was brought to the OC’s attention until it went to Mediation.
Good article.
I have enjoyed success recently at NCAT, as the applicant, where the respondent was a tad “economical” with the facts and dragged out NCAT proceedings unnecessarily. Earlier the respondent kept changing mediation dates. When I declined to agree to yet another change of date the respondent sought for one of several mediation sessions, the registrar agreed with me and binned the planned mediation and instead offered me a direct route to NCAT, rather than delay mediation by 5 weeks as the respondent sought.
If I may suggest a strategy that worked for me at mediation and at NCAT and should work for others: put together your application for mediation (a prerequisite , in most cases, for a NCAT hearing) as though it’s the NCAT application you’re preparing or say, the “claim” you will provide to the local court, if you think you’ll end up there. That is, right from the get go, be transparent in what outcome you seek and include every bit of evidence you intend to rely on at every step where you plan to seek redress, starting with mediation. In short: include chapter and verse of the relevant facts.
Accept the dates offered you by Strata Mediation and/or NCAT, unless you honestly cannot attend at those times.
That way the mediator and the Tribunal Member (if it ends up at NCAT) or the magistrate (if it ends up in the local court) can all see you as transparent. And that’s the impression you should want the presiding officer to a hold of you.
Furthermore, treat mediation as a BIG DEAL. A really BIG DEAL. Here attendance is optional and in my experience, some parties do not attend (and they re not penalised) and often some parties’ preparation for mediation is akin to toddler trying to feed herself pasta: the contents end up nowhere near where they should be. Instead they end up all over the place. In the toddler’s case, all over the kitchen and at NCAT, good arguments are strewn in an incoherent manner and piles of evidence need to be waded through to get to the point.
I have no idea why some prepare poorly for mediation. Perhaps some think they can “wing it” on the day and some think the other party will see that time and money is needed to progress the matter to NCAT and hence will consent to an agreement reached at mediation.
The most important lesson I learned at mediation is that agreements made by a party are not enforceable on their own. The party expecting the other party to honour its word must to NCAT to enforce it. That is, if a party agrees to do something or pay something can, as happened in my case, disown their own written agreement. This forces me to go to NCAT and ask NCAT to order them to comply.
Jimmy wrote that
I am pretty sure that I have read in the past about Members rejecting cases because the plaintiffs appeared to be changing horses in mid-stream. It’s much better to go in with a clear objective of what you want…
I may have been unclear. I do not suggest to change strategy midstream. I am however suggesting that, as Jimmy opines, “to go in [to NCAT] with a clear objective” and that while you go to NCAT with a clear objective, you may be unsure which order is exactly the most appropriate one NCAT will want to refer to, so list all those orders that assist your position.