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There are no standard (or “model”) By-Laws that cover the situation that you describe, although there may be Special By-Laws registered for your Strata Plan that grant exclusive use of those ten (10) parking spaces to the Proprietors of certain Units.
Special By-Laws are Plan / Property specific and arise from Resolutions taken at General Meetings of an Owners Corporation (e.g. AGM).
Further, depending upon the age of your Plan parking spaces may not be shown on the “unit titles”, but whether they're Common Property or part of Individual Lots (Units) will definitely be shown on the Title Document for your overall Strata Plan.
Assuming you're in NSW, use Jimmy T's link to the NSW Land & Property Management Authority (the old Land Titles Office) where you can for a small fee use their on-line Title Search facility to download everything you need to clarify the ownership of those parking spaces.
I agree with Jimmy T – the maintenance, repair, and replacement of anything on or in common property (which your garage door is) is the responsibility of the Owners Corporation.
BUT —- the centre locking mechanism is usually removed when a garage door is automated, simply because of the resultant damage that would certainly arise if someone used the automated opening mechanism when the door was locked; ouch!!!
I'd be inclined to leave the whole door as it is.
Some of our legal “posters’ will be better able than me to advise you about legal precedents, but based on my past experience as Sec. of a self-managed 27 Lot Plan, tests that we conducted some time ago on the carpeted floors of 5 Lots on different levels gave an average (although fairly consistent) LnTw of 33. So your Plan’s requirement for a LnTw of <40 is about right.
Regarding who’s responsible for correcting the problem of the noisy itiled floor, I’d firstly suggest to you that it’s impossible for any tiles placed on a concrete floor to achieve the LnTw required under your Plan’s Special By-Law.
Secondly, and depending upon the wording of your O/C’s consent, it’s common for such consents to state that anything placed on or in a Common Property Wall or Floor by a Proprietor is the responsibility of the Proprietor from time-to-time of that Lot with regard to on-going maintenance and repairs. No O/C in their right mind would knowingly accept those responsibilities where a developer’s quality tile was replaced by an expensive / high quality Italian product!
As I said, the floor will not meet the consent conditions for the min. LnTw so the noise will have to be remedied, so I’d ask the O/C or Strata Manager for a copy of that consent, and lean on whoever is responsible under that consent to have the problem fixed under the Provisions of Model By-Law 14.
Over to our legal posters ……………..
Preet,
The Real Estate Property Manager cannot make a claim against the tenant's bond in the circumstances that you describe, but in my experience, some will approach their tenants about removal of the rubbish that they've left behind; but if those tenants deny everything, you're stuck with the mess.
Many Councils will charge the Proprietor / Landlord for the removal of dumped materials in the circumstances you describe, so try to ascertain the details of the that Proprietor from your Strata Manager, be prepared to state definitively which Unit the rubbish came from (as opposed to who dumped it, as you can't prove that), and insist that your Strata Manager contacts the Council ASAP.
Whilst By-Law 9 covers your situation, the “occupier” has departed, so for future incidents and depending upon your Council's Policy, consider putting a Special By-Law before your next General Meeting that passes liability under By-Law 9 to the Proprietor in circumstances where the Occupier / Tenant does a runner! That's what our Plan did, and we included a similar addition to By-Laws 6 & 8 address the behaviour of tenants and their visitors, and that worked a treat!
Good luck!!
Ben's right!! There's nothing to prevent non-financial Proprietors from voting at an Executive Committee Meeting, so you're stuck with a bad decision unless the Secretary is prepared to convene a further Meeting or General Meeting.
I hope that's not the case, because with regard to my original post /forum/common-property/damage-to-parked-vehicle-in-basement-carpark/ , and in the absence of any advice to the contrary, I'm going to rely upon that ruling of the NSW Supreme Court to lodge a Statement of Claim against my Owners Corporation.
The basis of my Claim is going to be that as my Owners Corporation was aware of the problem of carpark leachate, but didn't undertake the Common Property Risk Assessment that was twice minuted in AGM Papers, and instead admitted that it relied upon residents to report leachate problems that it would then address; that places it in breach of its statutory responsibilities under S62(1) of the SCMA.
Even though the other Visitors' Parking Spaces in my Plan are regularly occupied by the same vehicles day-in and day-out and the O/C has done nothing to stop that, and that none of those Spaces is identified in any way, I plan to acknowledge that I shouldn't have parked in the Visitors' Space even for 15 hrs, and that I'm reducing the amount of my Claim in an effort to show “reasonableness” even though S62(1) imposes strict liability for my car's damage upon the O/C.
Any comments on the legal opinions of a Chartered Engineer and part-time Strata Manager would be most welcome?
Noise transmission from floors can sometimes be problematic, but usually when Proprietors change from what was originally in place when the Building was constructed; like from carpets to a floating floor.
Your problem is somewhat unusual in that due to the age of your Building the original floor was timber, and from what you're saying none of the previous Owners has never had it carpeted and then taken it up (?).
I'd check that with your Owners Corporation (O/C) though, because the applicable Model By-Laws that your Plan would have most likely adopted state that Proprietors must notify (read: seek the consent of) the O/C before changing any floor covering to one that may create noise (By-Law 14), and that the floors of a Lot (Unit) must be covered to the extent that there's no noise transmitted to other Lots (By-Law 15); bathrooms, kitchens, and laundry areas excepted.
Depending upon what's occurred over the 80 years, it's likely that you will have to cover or otherwise treat the floorboards “to an extent sufficient to prevent the transmission from the floor space of noise likely to disturb the peaceful enjoyment of the owner or occupier of another lot” (By-Law 15). That doesn't mean carpets though, as some selectively placed furnishings and scatter rug/s or carpet runners can work wonders!
Thanks Urban & Dean, but this is a Strata matter, and my vehicle's covered by the Owners Corporation's Insurance (Legal Liability) that as an Owner I contribute to!
If I claim against my own Insurance, my NCB will increase, my next premium will increase, and my Specialist Insurer like most others will probably not try to recover its costs from the at-fault party (the Owners Corporation).
I appreciate your opinions, but as my original post stated, the Owners Corporation was supposed to have all the leachate points identified and fixed as part of a Common Property Risk Assessment in both 2009 and 2010, and they didn't do that Assessment and didn't fix the leachate problems that ultimately damaged my car – now they're ducking, weaving, and being less than honest with me about these problems with Common Property that they're legally responsible for maintaining.
What do the Strata Lawyers think?
(PS – my car's at the repairers now, and I'll pay for those – and possibly go to the Small Claims Court to seek a judgement for $1K of my costs, because I shouldn't have parked in the unmarked visitors' space; even for 15 hours)
Whilst what happened is not entirely clear to me, I can advise that:
1) The Agenda for a General Meeting cannot incorporate “General Business”, simply because such an Item may include matters on-the-day that some Proprietors (such as yourself) would attend the Meeting and vote upon if they knew the detail.
2) Proprietors cannot be given Exclusive Use of Common Property unless a Special Resolution is passed at a General Meeting (75% + must vote in favour) AND an Exclusive Use By-Law is registered with the NSW Land & Property Management Authority (the old Dept of Lands).
I would advise the Secretary of your Executive Committee of the above, and request that the illegal resolution that created your problem be rescinded.
If you're in NSW, contact the Office of Fair Trading whose Specialist Strata Support Group can tell you how to apply for a resolution to be declared void.
I'm not a Strata Lawyer but rather the Secretary in a Self-Managed Plan, but on the basis of my knowledge of relevant Legislation, NO your EC can't do that even with the benefit of an Exclusive Use By-Law that's been properly resolved at a General Meeting of the Owners Corporation; which clearly they don't have anyway.
Further, the visitors' parking space would have been a requirement of the Local Council's Approval of your Building's Development, and I think that as the visitors' parking space is also shown on your Strata Plan, that any assignment of that space to individal Lot Owners via an Exclusive Use By-Law would require a Strata Sub-Division through the NSW Land & Property Management Authority (the old Land Titles Office).
What to do about it ? On the basis of my past experiences with the CTTT and Owners' Fiefdoms, I'd avoid the CTTT route at all costs, and further, if you get “heavy” with your EC they'll likely close ranks and ignore you, and that will limit your options to resolve your problem.
I would however politely advise your EC in writing that through their decision they have placed the Owners Corporation (that's you too) in Breach of the NSW Strata Schemes Management Act and the NSW Real Property Act, and that they should rescind their decision immediately and, if they wish to then properly formalise what they have done, they should convene an Extraodinary Meeting of the Owners Corporation to do so.
If / when that Meeting is convened, you will have hopefully knowledge gained via the legally qualified members of this Forum to knock it off!
Hello Simone,
You're just the person to comment upon my recent post “Damage to Parked Vehicle in Basement Carpark” in the Common Property Forum.
Would you mind having a read?
Thanks in advance……..
It sounds to me like you've put a skylight in the roof and perhaps some components of a security alarm system on the wall (like maybe the alarm siren and light); correct??
I'll respond as if that is the case.
So, in those circumstances you have indeed placed those items on Common Property, so what's necessary is to put a couple of Special By-Laws before a General Meeting of the Owners Corporation (O/C).
One Special By-Law would need to permit (all) Proprietors to place skylights on the Common Property (the roof), and include relevant conditions such as the provision of Plans, Manufacturers' Specs, Builders' Details/License, Builders' Public Liability Insurance etc to the O/C prior to any works commencing, AND a statement that all on-going maintenance and repairs to the permitted works will be the responsibility of the Proprietor/s from time-to-time of the Lot/s granted permission.
The second Special By-Law would need to include the same provisos for the placement of Alarm System Components of the Common Property, and maybe include an additional “condition” about where components may be located and the colour of those — like the O/C may not want a bright orange alarm siren box right at the front of the block!
Special By-Laws need 75% of Proprietors to be in agreement, but that's all that would be needed IF my assumptions about what you have done are correct (Exclusive Use By-Laws are not necessary to achieve your stated objectives).
Just keep the wording simple and unambiguous; you don't need legalese.
Once passed, a Form for a “Change of By-Laws” (and for registering new ones) can be downloaded from the NSW Land & Property Management Authority's Web Site, and with the payment of a small fee ($90ea I think), you're done!!
Hope this helps.
I've had the same problem with non-payers in our self-managed Plan, and have found that the permitted 10% interest is no encouragement for these proprietors to pay-up.
Further, the Administratve Fees that our Plan applies to the arrears in an effort to cover reminder letters, final notices, and collection fees under our Debt Recovery Process were NOT taken into consideration the one Court Judgememnt that we obtained, where by the way the Court-Ordered Payment amount will never see the Proprietor's arrears paid before the subsequent Levy Payments become due.
Out of despiration, I put a Motion before our last AGM whereby Contributions would be increased by 20%, and put a complementary Motion to offer a 20% discount on Contributions that were received in-full before the payment due-date.
Those Motions were passed, and thus far it's worked a treat!! Typically, we had 6-8 Proprietors out of 27 in arrears to varfying degrees up to 90 days (most would make part-payments at every reminder letter), and presently we have only one Proprietor in arrears, and only for around 50 days, and making regular part-payments to catch-up.
Worth a try !!!!
Cheers – The Whale
RG said:
I am an owner of a unit in a small 6 unit apartment block which is self managed. All of the units have their own balconies, except for the ground floor unit. Instead there is a patio area outside it with access from double opening doors. Whilst this patio is directly outside the unit and then flows onto the lawn and garden, the patio area itself is not on the title of the unit and is therefore common area. The Owners Corporation is currently considering granting an exclusive use bylaw to the owner of the unit as we currently have the Standard Bylaws. My first question is: What are the correct procedures for this to be implemented and what are the pitfalls for the Owners Corporation?
In looking at this matter I have become aware that there does not seem to be any specific bylaw in place to prevent any occupant of the unit in question from assuming use of this common area by leaving all manner of possessions on the patio. How could we control this common area patio as a vacant space if the Owners Corp so chose and if the exclusive use does not proceed?
The drafting of an Exclusive Use By-Law is not rocket science !!
As has been suggested, it's more about the O/C and its Proprietor agreeing in plain english about what is reasonable with regard to the use of the area and about how it is to be used and maintained (like what may be placed within the area, who cleans it, and who pays for that), and then writing all that down on the required lodgement form.
In NSW that's Form 15CB available from the NSW Land & Property Management Authority – don't know about other States / Teriritories.
That agreement between the Parties is essential, particularly as the Proprietor who benefits from the exclusive use right has to agree in writing to the making of the By-Law, and it's common to include a provision that the By-Law cannot be revoked or repealed by the O/C without the written consent of that Proprietor (or their successor/s).
By the way, this would be a Special By-Law which requires the agreement of 75% of those Propretors in attendance at the General Meeting; incl. Proxies.You will also need to register another Special By-Law stating who it's agreed will be responsible for that maintenance referred to in the preceeding paragraph (2), and what that comprises. It's easiest to have your grounds maintenance contractor do what ever maintenance is being done now within that area, and have your proprietor with the exclusive use right reimburse the O/C for that on a quarterly basis via another line item on their Levy Notice / Invoice.
If you and your O/C are prepared to put in the work, the cost to Legally Register each Special By-Law and to place each on your Plan's Title in NSW is $97.00.
Hope this helps you decide on a way forward, but as I said, don't let it phase you, just keep the words short, in plain english, and unambiguous.
Cheers – “The Whale”