[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?

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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in writing to the making of the By-Law, and it's common to include a provision that the By-Law cannot be revoked or repealed by the O/C without the written consent of that Proprietor (or their successor/s).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”

 

[Whale]

That's good advice about the door entry keys; it's just that I'm clutching at straws in deciding about how to best manage this situation.

The latest is that the same Agency wanted to give a carpet cleaner access to a recently vacated Unit, and as they couldn't find the Access Card on issue to that property, they removed one from the keyring to another Unit in our Plan that's also under their “management”, and gave it to the cleaner, who didn't return it.

The Agency's Receptionist initially referred me to the cleaner, who denied that he was ever given an Access Card, and as it's now been admitted that the Property Manager didn't sign it out, the O/C has yet another Access Card to delete / unenroll from the Security System and a job finding someone to pay for that work and for a replacement. 

All I can say is that Real Estate Agents are generally regarded as being just above the bottom of the cockies cage, and on the basis of my long experience with their Property Managers, I'm afraid that they are probably just below that.

Cheers, and thanks again for the advice —- “The Whale”

[Whale]

Compliance with By-Laws is a condition of the Standard Form of Residential Tenancy Agreement, so you would do much better by approaching the Tenant's Property Manager AND the Proprietor of the Lot concerned.

The Tenant's Agreement may be terminated for a breach of any of its terms including the one about compliance with By-Laws. All that influences the timing of that termination is whether the Agreement is current (within its term) or continuing (week-by-week), but in any case the threat of having their Agreement terminated is far greater that any Orders that the CTTT may issue.

I say MAY ISSUE, as the CTTT's passion is for mediation, where the tenants will no doubt promise to abide by the By-Laws which of course they'll say they knew nothing about (even though ignorance of the Law is no defense and the Property Manager is supposed to include a copy of those with the Agreement), and then do nothing.

That's why the advice about photographs and statements is appropriate if you go down the Breach Notice / CTTT path – which on the basis of past experiences I most definately would not recommend .

Hope this helps.

[Whale]

Whilst the ceiling between the floors of the Lot is Common Property and subject to repair by the O/C, there are a few complications with regard to the repairs to the bathroom, given that you didn't say where the leak originated.

1. If the leak was a leak or overflow from a shower tray, bath, or sink then many Insurers won't pay the claim
2. If the leak was from the tiles on or the pipes within an internal wall, like where the shower rose and taps are on the wall between the bathroom and another room, then that's not a Common Property matter and not the O/C's responsibility.   
3. If the leak was from the ORIGINAL shower base (tiles / membrane / tray), then repairs to that and to one course of tiles up / on the surrounding walls is the O/C's responsibility. 
4. If the bathroom has been renovated without the O/C being informed, then repairs are the current Proprietor's responsibility. If the O/C was informed, then it's likely that its approval included a condition also making the Proprietor responsible for any and all future repairs on the basis that the Proprietor engaged the tradespeople and approved of the materials / PC Items used .

I hope all this assists rather than complicates the issues.

Cheers.

[Whale]

Thanks Wim,

We did employ a Strata Manager a few years ago, but found that they just couldn't devote the time to our Plan that we expected, and their Staff simply agreed to repairs to so-called Common Property items that simply weren't the O/C's responsibility – like repairs to leaking pipes inside internal walls and clearing sewer blockages in pipes that only serviced the Lot who's residents blocked them.

It's unfair to keep tradespeople waiting for their payment whilst the Strata Manager tries to negotiate with a Proprietor who dosen't want to pay for work that has already been done without any prior advice to them.

So in the end, a special resolution at an AGM saw the end of the O/C's Agreement with the Strata Manager, and a decision to let me take it on because I'm cheap (read free), and unlike our Strata Manager I have only one Plan to worry about!

Back to the S119 Notification, we're currently awaiting action by the NSW Office of Fair Trading's Compliance and Enforcement Division, and as they have advised that they won't necessarily advise the O/C of their activities or the outcome of those, we've written to the Minister responsible with a request that her Office intervenes, at least so we know what's being done with regard to the Licensee's non compliance.
Honestly, I don't know what purpose is served by the NSW OFT, but it's clear that Real Estate Licensees have no fear of them.

Your idea about letting the Proprietor concerned know about the issues is a good one, which I'll persue, although I fear that like many Proprietors he'll just expect his Property Manager to keep a paying bum in his bed, and nothing more.

I'll post the outcome of all this though.

Cheers.

[Whale]

BadgerBoi said:

JimmyT said:

The simplest answer is to Google “pop-up bollards” and look at the options for securing your space when it's not in use. 

 

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Brilliant – don't know why I didn't think of that myself.

Just for the hell of it I might try one that I can raise while the offender is sitting in the space so he can't move his car until I'm ready to let him go .

thanks JimmyT

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We had a similar problem and handled it in two ways.

Firstly, most owners installed a lift-up / fold-down lockable bollard.

Secondly, we created and registered a Special By Law that amongst other things stated that each Proprietor / Resident must use the numbered parking space that forms part of their Lot, AND that if they didn't AND they ignored a politely worded reminder from the Owners Corporation, then they would receive a parking fee not exceeding $500/day or part thereof.

Yes… $500; so we wouldn't have to amend the Special By-Law every time we wanted to increase the amount – the current Fee $25.

The Special By-Law makes the Proprietor of the Lot responsible in circumstances where a Resident (tenant) or their Visitor does not pay the Fee.

The whole thing has been tested once before the CTTT when one Resident refused to pay our Fee and the Proprietor ignored the Owners Corp's Invoices, and after some affirmative advice to our Proprietor from the CTTT's mediator, we won the day!

Over the 3 years that this Special By-Law has been in place, the Owners Corp has issued around 60 reminders, and there have been only 2 Fees issued; both paid.

So it works and it's legal so long as it's not a Parking FINE!

[Author]

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