[TrulEConcerned]

You could also send a tradesman of your choosing to repair it. Don’t tell that tradesman that another tradesman wants to replace it. If AC  is on the lease then you have the obligation to see that it works. That means repair or replacement. Or as Cosmo suggests, a rent reduction.

[TrulEConcerned]

Hi Scotlandx

At the most, 2 lot owners (apart from the lot owner alone benefiting from the works) will suffer inconvenience.

Your point on the compensation coming from all the owners’ funds is correct, but to date the Strata Committee’s members have dipped into Owners’ funds for their benefit. They have had overpriced repairs made to OC assets they use (for which the OC is responsible to repair) and bluntly refused tenders or cheaper options supplied to other lot owners. They also let contracts (at inflated prices) to a friend, without seeking tenders for the works. They reminded me that all they need is one quote. When I pushed the matter, they retroactively “approved” invoices.

As mentioned in my first post, the OC offered compensation to the lot owner who, along with his tenants, will enjoy the new terrace, to the exclusion of every other owner.

I know the noise will be horrific given comments made to me by two SC members when I queried the upcoming works and believe that my tenants’ right to peace & enjoyment  will suffer.

I don’t feel it right that the OC should escape liability for compensating the 2 lots that will suffer greatly.

[TrulEConcerned]

Jimmy

 

Yours is a good idea, but I see one possible snag.

I have not alerted the tenants to the forthcoming inconvenience.

What if my tenants write me the letter you suggest and seek reasonable compensation, say half the rent, which at mediation (between I assume me and the OC), the OC rejects? Or worse still, don’t even turn up to NCAT’s mediation?

Could I be stuck having to give them a rent holiday out of my own pocket?

[TrulEConcerned]

Sir Humphrey,

You are right. The balcony is accessed through the unit that has exclusive use. I agree that they deserve compensation given tradesmen would traverse their lot to make the repairs.

But after the repairs are made they ALONE will enjoy the fancy balcony.

Maybe they deserve more (some would say less) compensation than my tenants deserve, but my point is that my tenants deserve some compensation for their home and home-office being severely disturbed with no benefit to them by way of enjoying the improvements on the balcony.

[TrulEConcerned]

As Jimmy T suggests, go to the NCAT website to verify the fee.

Note that mediation in some cases is required before you can go to a hearing. Also, mediation is not compulsory in many cases, so you may be wise to prepare for a hearing in case you alone turn up to mediation and the other side doesn’t.

Previously I applied for mediation and a hearing together.

[TrulEConcerned]

Did your lease have a break clause?

If so, then my recent experience with a lease break fee may be useful.

I am a landlord and in my case there was provision in the lease for a break fee to be paid by the tenant if he breaks the lease before expiry. But not all leases include this clause.

Getting the fee out of the tenant required a hearing at NCAT.

After being paid the exact sum I emailed the tenant that the money (I spelled out the amount) was received.

Regardless of whether there was or there was no break fee in your lease it is only proper that whoever receives money from you must offer a receipt of some kind. Even a simple email like I did is good enough.

Also, if your lease had a break fee clause you need NOT pay rent until the end of the lease. The break fee is to be paid when you vacate the premises. If say you vacated on 1st of the month and paid rent until the 15th, then you should reduced the break fee paid by 2 weeks, because you have overpaid the rent.

[TrulEConcerned]

Proudsceptic – I understand what you’re saying.

Later today I will look into the links you provided illustrating prior cases on this issue. I’ll no doubt have a few questions. Thanks again for your valuable assistance.

[TrulEConcerned]

Re: ScotlandX 14/11/2016 – 4:44 pm

You say that:

“your threshold question is whether or not the balcony, including the slab and the membrane, is common property or if it forms part of the lot.  That then determines if the OC is responsible for any repairs or the owner.

I don’t know if your solicitor is an expert on strata, but you need to get an answer to that question before you start worrying about what the problem is with the balcony.  If your solicitor is not a strata expert I strongly suggest you seek advice from an expert”.

I too don’t know if my solicitor is a strata expert but I know he makes sense when he says:

The strata map shows a vinculum between the balcony and the lot concerned.

I, TruleEConcerned, understand that a vinculum indicates that both areas are to be treated as one, as in “the one lot or one parcel”. Hence, the balcony cannot be part of common property. Please correct me if my logic is flawed.

Are you saying it is possible that the entire balcony could be part of a lot, including the tiles, everything under the tiles and the slab? And not just the airspace above the (allegedly) original tiles. Note there never was a membrane.

If this is what you are suggesting, it is intriguing. How can I determine this?

That is, what records should I or my solicitor access?

Please advise.

[TrulEConcerned]

Re: Proudsceptic 14/11/16 at 10:49

 

You say:

I would investigate whether the Owner of the balcony contributed in any way to the leak in the balcony. If the lot Owner has interfered with the membrane in some way such as by piercing it then the Lot Owner would be Contributory Negligent and should pay a proportion of the repair.

 

I agree. This has been my chief frustration. Nothing of the sort took place and my approaches to the Chairman to tell the Sec. of my concerns seems to have fallen on deaf ears or a clueless Chairman.

The Sec (who is in charge of the EC by virtue of him dictating to the Chairman how to vote) and the Tsr (ie lot owner of the balcony) chose not to get an independent opinion on why the balcony was leaking. They instead obtained two tradesmen to quote on fixing the problem (as explained to the tradesmen no doubt by the secretary). The tradesmen would not know there was no membrane unless they were told or their investigations indicated this. The Sec may well have told the tradesmen to quote for a membrane rather than ask ‘how can the leaks be stopped in the most economical way’?

When I rang Fair Trading about this lack of transparency, I was told that for complexes under 100 units there is nothing stopping an EC obtaining a quote or more than one quote and then making the repairs they want. There is nothing requiring an independent transparent process to be undertaken, that will minimise any potential conflict of interest or what I call “corrupt conduct”.

[TrulEConcerned]

Thank you ScotlandX and proudsceptic for your advice.

I will study your comments today.

[TrulEConcerned]

Hi ScotlandX

Thanks for your reply. Sorry for the numerous emails, but I really want (from you and Jimmy) all the ammunition I can have to go to NCAT, ideally with 1 other owner and have a chance to win. If I go alone to NCAT, NCAT and the strata mgr may reasonably consider me as a pest when really I alone want the EC’s conduct to be transparent.

In your email, by “definitive” I assume you mean to definitively know

a) who owns the balcony and

b) what the problem is that has created the leaks from the balcony.

a) There is no doubt in my solicitor’s mind the balcony belongs to the lot. This is clear from the strata map which lists the lot area as including the balcony’s area.

b) I recently asked the Chair to support me by demanding an Extraordinary General Meeting and at such a meeting to insist on an independent investigation into the leaks. One idea of mine is to hire an engineer to investigate. Another idea is to get a plumber to subject the balcony to a pressure and or a dye test which would prove where the water leaks came from.

Before agreeing to consider my request, the Chairman discussed the matter with the Sec. and Tsr and instead of defending the OC, she surrendered to lies and half truths. She came away from meeting them, telling me “they say the balcony is common property even though you say it isn’t.” Note, no proof was given to her that it is common, unlike me who explained to her what the solicitor told me about how strata plans are read. She could not explain to me the reasons the others had for refusing an independent assessment of the leaks.

I always thought that if the leaks are from within the concrete slab (which is common property) it could be argued that the OC should pay for repairs or restoration. But (i) no independent person, in fact no person at all stated where the leaks came from. Hence I doubt they arise from common property. Also, if we NOW hire an independent person, who is to say the balcony has not been tampered with by special interests so as to exacerbate the leakage?; (b) even if an independent person confirmed the leaks arose from common property, surely the OC does not have to supply the lot owner with a membrane where none was previously supplied. Surely the OC’s liability, if there is one, is to ensure the leaks stop. Any economical way we can.

In conversation with me the Chair was dead against the $5000 in rent compensation which the OC (not me) voted for at the Sept 2016 AGM, she has caved in on that as well. I told her Fair Trading thought it “odd” that such compensation is to be paid.

[TrulEConcerned]

ScotlandX

Thanks for the reply.

I will think through your suggestions. Meanwhile, I want to clarify:

A) The ownership of the balcony: my solicitor says it is part of the lot and is not common property. This is clear from the strata map.

B) As to who should pay to fix the leaks and the compensation, the crux of my argument, let me enlighten you about the dynamics of the strata, which (regardless of the law) seems to be dictating who the EC wants to pay:

There are 5 lots:

(1) Chairman (2) Me (3) Secretary (4) Former Treasurer (5) New Treasurer

Until recently there were 4 EC members (1), (3), (4) and (5).

Now there are 3 EC members (1), (3) and (5).

The balcony belongs to (5) who is friendly with (3). (3) is also friendly with (4).

As an aside: For your guidance, (3) and (4) used to manage the strata before we got an external agent. The impetus in 2004 to appoint the external strata agent was because the OC discovered that some years earlier (3) spent OC funds without approval on a kitchen stove in (5). I recently asked if the funds taken were repaid to the OC and was told by (3) that records are kept for only 5 years. I can only infer that he did not repay.

Regarding the $25,000 works on the balcony that may have started already as well as the $5,000 rent compensation, (3) and (5) did NOT obtain independent advice on what needs to be done on the balcony. They obtained advice from parties with a conflict of interest.

Tradesmen were approached.

Two quotes to fix what the tradesmen think needs to be done. Or were told by (3) and (5) to be done. Who knows? The quotes which were shown at the AGM are in the main for the laying of a membrane on the balcony. (I understand that no membrane was ever laid when the building was erected in the early 1980s).

So you see, you’re right. The EC should have engaged an independent person to diagnose the problem and prescribe a solution, which would be put to tender, instead the EC it seems hired contractors and told them what they wanted. Regardless of whether the job could have been fixed for a fraction of the $25,000 quoted. And that assumes the problem in the privately owned balcony stems from a common property source.

[TrulEConcerned]

Jimmy

Thanks for your advice.

I am not here to vent my anger but to get some idea how to stop the EC. In a way that doesn’t cost too much and gives me reasonable chance of success.

For your reference, last year I took the OC to NCAT because as a member of the EC, I was denied time and time again access to the financial records and to the transaction a/c bank statements. The exercise of applying for a s.162 (compulsory manager) cost me $300 or so and was dismissed by NCAT.

None of the 4 EC members were concerned with the lack of transparency. Only I was. I asked under s.105 and then under s.108 (as Fair Trading suggested)  to see who was in arrears and to what extent. (I am still waiting for that information).

At NCAT  I also wanted to see how many instances of unauthorised spending took place. In my application to NCAT I identified at least 2 instances. (In addition, some years ago, one office bearer was found to have used OC money to pay for another lot’s kitchen stove, when that should have been paid by the relevant lot owner himself. I still have a copy of the invoice he paid and the butt of the cheque he drew.  I recently asked the managing agent but neither the agent, nor the EC member who spent OC funds on a kitchen stove – and is still on the EC – has confirmed that the money was repaid the OC).

After my NCAT application and appeal I was given access to the strata’s records but mysteriously the papers I wanted were unavailable.

As you know, the s162 order to have an agent manage the strata without reference to the EC meant written submissions and not a hearing was the modus operandi. My submission (and subsequent appeals) were rejected by NCAT because the OC in its response undertook that I would get access to what I wanted.

That was 10/2015 and still to date I have not received the papers I want to see.

The 2015 AGM agenda and minutes did not include what I thought was mandatory: the lot balance reports.

At the 2016 AGM held recently, neither the agenda nor minutes included the lot balance reports. And last week I chased those reports up. You guessed right…no response from the managing agent.

Thanks for pointing out ScotlandX’s reply. I will look at it.

[TrulEConcerned]

Hey scotlandx

You ask why the chap asked and will receive compensation. Simple: he claims that his tenants will be inconvenienced with tradies coming and going through his lot to fix an OC asset (the balcony). I didn’t buy that argument, because

a) there is nothing in the Act about such payment;

b) he wants to be paid the number of weeks allegedly inconvenienced multiplied by the weekly rent. That is, he wants to tell the OC how long the work took place AND wants the weekly rent paid by the OC for the period the works take placeH

c) He says that he will need to offer some compensation to his tenants and (with his EC pal) insists the OC to pay for that

d) He forgets to remind the OC that he is adding furniture to the balcony, which in due course will be enjoyed by his tenants and that a small inconvenience (without he rent being compensated) is reasonable. To have the OC pay for repairs on the balcony and to allow him to add furniture to the balcony allowing him to raise his rent while his tenants’ alleged inconvenience is compensated by the OC is something I find objectionable.

e) He refused a transparent investigation into the source of the leaks.

f) I did not carry on with my objections because my view is irrelevant when there are 5 lots in all and 4 are on the EC. Guess who was not asked to join the EC?

 

You say that you would complain and seek an order to stop the works. My question is: how would Fair Trading or NCAT consider the matter if 4 out of 5 owners agree to the payment, even if it’s not in the Act.

 

I ask because, let’s say that the OC can do whatever it wants if it has the numbers, what is to stop an OC compensating an owner a limitless sum?

[TrulEConcerned]

WilliamW

You make sense when you wrote, “it would seem sensible to have an independent and transparent Engineer Consultancy Company investigate and write a scope of works. Once the scope of works has been written, they will tender the work to 3 or 4 contractors. The Strata Committee can then decide which contractor they will choose”.

I mentioned a similar opinion to one EC member and he seemed agreeable. But soon after he was clearly influenced by two EC members who benefit from the OC paying for the repairs of one lot’s balcony. These EC members convinced the “independent” EC member that the balcony is common property (which worries me a bit) and that the damage sustained is to be repaired at OC’s cost (this worries me more as it has not been proved). It is the absence of a report from an independent authority on the alleged damage that I find most objectionable.

I then asked the “independent” EC member that we need to have an EC meeting and I will table one item to discuss:

Would the EC please advise (a) who owns the balcony in question? The lot owner or the OC? And (b) why was the leaking not subject to an independent investigation instead of asking tillers and concreters to quote for a gold plated job?

The “independent” member does not want to ‘rock the boat’ and said he will ask the others about this, but doesn’t want it in writing. He said he “will not push for  meeting to discuss this if I am convinced that the EC members are genuine”.

It amazes me how easy it is to dupe some people.

I agree that most often balconies are part of common property, but when I asked my solicitor to investigate this issue, he confirmed that the lot connected to the balcony owns the balcony. This is clear on the strata map.

The SP was registered in 1983.

[Author]

Replies