[Whale]

Depending upon whether the area where the hedges have been planted is the Common Property of the Strata Plan or part of the Lot/s (Unit) such as 'garden space”, the following By-Laws apply under the provisions of the (NSW) Strata Schemes Management Act 1996: 

4. Damage to lawns, etc on common property

An owner or occupier must not damage any lawn, garden, tree, shrub, plant or flower on the common property. You must not use any part of common property as your own garden.

17. Appearance of the lot

Unless an owner or occupier has the written permission of the owners corporation, they must not keep anything within their lot that is not in keeping with the appearance of the rest of the building. This does not apply to the hanging of any washing, towelling, bedding, clothing, or other articles mentioned in By-law 10.

Hope this assists. 

[Whale]

Hi Peter,

Strictly speaking yes, but you should give hard-working Secretaries (like me) a little latitude with regard to minor matters such as this; after all it is the Owners Corporations' Property that's been slightly “changed”.

Personally, I'd be more concerned about who has the keys in circumstances where maintenance is required.

[Whale]

Many thanks everyone; and yes (Billen Ben) the pipe is in an internal cavity brick wall, and it does feed the shower.

[Whale]

Thanks Mr Strata,

The work that I'm referring to is not on Common Property, but is rather on a water pipe that only services the Lot concerned, and which is within an internal wall of that Lot.

I've tried to unsuccessfully to contact the Proprietor, and the Property Manager whose tenant identified the problem has shown no interest since I informed him that the problem is not the O/C's responsibility.

Even though I dislike the word “power”, in response to the question ….

What power does an owners corporation have to carry out work and recover costs?

Sect. 63(4) of the SCMA states:

4) Work that is duty of owner or occupier to carry out, an owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.

So as the leak is now impacting the Common Property and the Lot below, I was contemplating the use of the above extract from SCMA as a last resort. 

What do you and others think?

[Whale]

Yes the O/C would be responsible, and that reminds me, if the O/C goes ahead and replaces the window-rattlers it will need to create a Special By-Law to covering responsibility for for the on-going maintenance and repair of those, and how Proprietors (current & future) may install other such systems.

You must first draft the Special By-Law (plain English) that for example covers the following (obtain some legal advice):

1. That the maintenance, repair, and replacement of air conditioners installed at the time of registering the Special By-Law is the responsibility of the Proprietors of the Lots where those systems are installed
2. That from the date of registering the Special By-Law Proprietors must apply to the O/C for an approval to install air conditioners, and include the systems' details (dimensions, noise rating etc) and how the installation is to be made.
3. That all work must be undertaken by suitably licensed people
4. That operating times must comply with Local Council requirements.
5. That condensate must be properly connected in accordance with the requirements of Local Council
6. That any damage to the Common Property that occurs during, or subsequent to the installation is the responsibility of the Proprietor where the system is installed 
7. That all on-going maintenance, repairs, and replacements of the system/s is the responsibility of the Proprietor from time-to-time of the Lot (i.e. where the system's installed)
8. That where a Proprietor does not undertake required maintenance or repairs to their system, then the O/C will undertake those works, and Invoice the Proprietor for its costs.  

Special By-Laws must be resolved by a min 75% of Proprietors (by Unit Entitlement) at a General Meeting.

I hope all this assists. 

[Whale]

In the first instance, I'd be checking that your Plan's Special By-Law has been properly Registered and that it's shown on the Strata Title, because if it's not registered it's worth nothing.

On the assumption that it is properly Registered, there are few restrictions on what By-Laws may prohibit, and your Owners Corporation (O/C) has covered one of those few by exempting Guide Dogs and animals for the Hearing Impaired from its Special By-Law.

So I believe that these are your options, in order of preference:

1. Just keep your pet cat inside your Unit and say nothing.
2. If your circumstances justify, ask your GP for a letter to the effect that your cat is a companion animal, and submit that to your Executive Committee or Strata Manager together with a request to keep the cat, strictly under the terms that you've outlined (e.g. keep it inside etc)
3. Apply to the Consumer, Trader, and Tenancy Tribunal for mediation of the matter, and argue that in it's current form the Special By-Law is restrictive and unreasonable, and seek to have it replaced with one of the latest “Model By-Laws” (contained in the NSW Strata Schemes Regulation 2010) where one of the options reads:

(3) If an owner or occupier of a lot keeps a cat, small dog or small caged bird on the lot then the owner or occupier must:

(a) notify the owners corporation that the animal is being kept on the lot, and

(b) keep the animal within the lot, and

(c) carry the animal when it is on the common property, and

(d) take such action as may be necessary to clean all areas of the lot or the common property that are soiled by the animal.

[Whale]

I agree with Jimmy T – as the window-rattlers were installed so long ago, as there's no record of them ever being approved, and as they're fixed in some way to the Common Property, they too would be regarded as Common Property and as such, the Owners Corporation (O/C) is responsible for their replacement; if that's what it wants to do.

When you evaluate split-systems, you'll find that there are some very cheap supply & install packages available. I've seen prices as low as $895 for back-to-back installs, which reminds me, whilst I don't know what floor the Units-of-concern are on, there are limits on the distance between the outside component and the component of the system that's mounted inside the residence.

[Whale]

I too agree with Mr Strata, but if your EC Chairman is a dictator and you're a submissive, I'd suggest that you put your request, including a monetary inducement and the CTTT's preference for a compromise, all in the form of a Motion on the Agenda of your Plan's next AGM. 

Dictatorial Chairpeople don't usually send out Preliminary Notices to AGMs, so you may need to find out when the next AGM is so that you can get your Motion in, and on the Agenda before the cut-off date.

[Whale]

Firstly let me clarify, exhaust fans have by Special Resolution been deemed Lot Owners' Fixtures at our Plan, they're not shown on the Plan (ie the Strata Plan).

Without wishing to in any way complicate my original issue, my past research on the subject of “Lot Owners Fixtures” revealed no doubts about the fact that Owners are responsible for the maintenance and repair of those items, and that they're insured items on our Building Policy, but there was at the time some divergent views between our Insurer, other Strata Insurers, the ISTM, Fair Trading, and others concerning precisely what these items are.

The broadest definition was that these items were those fixed (really?) to the Common, but not for common use or benefit, and which if removed would leave damage on that Common Property.

So aimed with divergent views and a broad (although logical) definition in mind, our O/C specially resolved to deem items including toilet pans / cisterns, sinks, shower screens / trays, internal doors, external windows and doors that adjoin parts of the Lot (like balconies), built-in wardrobes, kitchen cupboards / wall ovens / cook tops, solar panels, light fittings, ceiling and exhaust fans — all as “Lot Owners' Fixtures and Improvements”.

So now that I've successfully complicated the issue, back to my original one ….

1. Is my rationale for not making payment to the Property Manager sound? I'm reading that you're all saying YES.
2. As I've now confirmed that the installed exhaust fan is one not designed for a cavity brick wall and that moisture-laden air is rising up that cavity, how do I have the work properly re-done in circumstances where the O/C didn't engage the Contractor involved (and never has used them), but without cost to the O/C or the Lot Owner who I also now know wasn't advised by his Property Manager that the work was to be done?

Over to you ………………

[Whale]

Thanks Struggler,

I omitted to mention that we're a self-managed Plan of 27 Lots. The problems that you mention were some of the reasons that we decided to self-manage; its seems that Property Managers' maintenance and/or repair issues are urgent when they're trying to convince an O/C to do the work, but no so urgent when we inform them that it's a Lot Owners' problem.

I'm still interested to receive some comments about the appropriateness of my approach.

[Whale]

What a great idea!! I wish that I was a Licensed Strata Manager instead of a Chartered Engineer (Ret'd) trying his best to be one, and to be an Accountant, Scribe, Mediator, By-Laws Policeman, Debt Collector, and all-round sounding board.

What a great forum this is; good work “Jimmy T” 

[Whale]

Thanks Mr Strata,

I've had a look at our Insurance Policy and have contacted our Insurer (a 3 letter acronym starting with “C”) to confirm that “Lot Owners Fixtures & Improvements” are covered.

I've also advised the Property Manager that as the toilet pan is the Lot Owner's property, they should arrange for its repair / replacement and send the plumber's paid invoice to the O/C for consideration of a reimbursement.

With regard to whether or not the O/C would make that reimbursement or resolve to make a Claim, and whether that Claim would be paid, is yet to be determined. But as I'm aware that this Owner was advised about the then slightly cracked toilet pan almost 12 months ago, I'm guessing that its gradually deteriorated and that there was therefore no defined “event” involved, and its as you suggest a maintenance matter (or the lack thereof).

I'm going to recommend to the E/C that in the circumstances we don't Claim, but instead offer a reimbursement of the Lot Owner's costs less our excess.

As always that decision will rest with the E/C on which I'm only one vote; so we'll see.

What does everyone think about that approach?

[Whale]

I had a similar issue.

The revised Laundry By-Law as I recall came about because increasing numbers of Strata Plans did not provide clothes lines (e.g. due to a lack of space), and concerns about Metropolitan Sydney (and similar areas) indeed looking like Market St in Bali when residents hung laundered items off balconies to avoid the increased costs of using clothes dryers.

So with the above in mind and exercising a degree of “reasonableness” the interpretation that the Executive Committee adopted for our Plan is that “laundered items must not obstruct the Common Property, and must not be visible from the streetscape or from any Lot “.

In your case, that would mean that provided the laundry and drying racks can’t be seen from the street or by other residents from within their homes, and that you and other residents don’t have to “nagivate through the myriad of clothes drying racks” –  it’s OK. 

[Whale]

Thanks Mr Strata,

To clarify, I am dealing directly with Insurers who would pay me 22% of our Plan's Premium as a commission IF I was a Licensed Strata Manager and acting as their Agent (as our former Strata Managers were).

That commission would now be in the order $1,900.00, so I asked our Insurer if they would reduce our next Premium by say $1,000.00 in recognition of the fact that they weren't paying any commission; the answer was a firm NO!

I do obtain competitive quotes each year from the two major Strata Insurers, and I do all the notifications, paperwork, and follow-ups when we (rarely) make a Claim – I just don't understand why neither Insurer will give us a share of the customary commission that would in other circumstances be willing paid by them, and from that very same Premium, to a Strata Manager

[Whale]

Gees that was quick Jimmy!!

We already have a Special By-Law that requires Occupants (and in default Proprietors) to fully reimburse the O/C's for its costs to repair Common Property damage together with any costs incurred to mitigate the impacts of that damage, but only where the damage arises from a Breach of By-Laws, and…

after years of persistence, all Property Managers now provide S119 Notifications, but I thought that only applied to Units that were leased, that is where the Occupant has an Agreement under the Residential Tenancies Act but not otherwise; any clarification about that would be most welcome.

I like the idea of a “Tenant Registration Fee”, but do any of our Legal Profession posters have a view on the legality of that approach?

[Author]

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