[Whale]

BonnieB – the floor of your lot is common property, where the removal of carpet and similar “soft” flooring fitted there and its replacement with “hard” materials such as laminated “floating” floors and/or timber flooring has proven to be so problematic in strata buildings in terms of increased noise and vibration then affecting neighbours, that FlatChat has THIS dedicated forum on the topic.

I urge you to peruse the linked forum before you make a decision to install any type of floorboards, and to particularly note the willingness of suppliers and installers to readily offer guarantees about the sound insulating properties of their products, and to then quickly walk away from those when neighbours subsequently raise noise complaints with the owners corporation.

Now in answer to your question, the floor is common property and the by-law that you have quoted means that the owner of a lot can install timber and similar products on/over that floor provided they first advise the owners corporation of their intention to do so, and provide details including the contractor involved, when the works are proposed, what part/s of the lot are involved, the type of product to be used, the acoustic underlay to be used and its specification including its as-installed performance as calculated by the manufacturer.

The executive committee of the owners corporation may not unreasonably refuse its consent to your proposal, but can do so conditionally such as with the times of work and to the requirement for the installer/s to be properly insured, or it has evidence of past problems arising from similar works at the scheme it can refuse consent.

You also need to be aware that any consent given by an executive committee is on the basis of the information that you and your suppliers / installers provide, and that if a core component such as the acoustic underlay proves ineffective and noise complaints subsequently arise, then you are responsible for correcting that situation even if those suppliers / installers walk away, and that you may upon application to the NSW Civil & Administrative Tribunal by the owners corporation, be issued with Orders to at your cost restore the floor of your property to its original state.

Finally, the noise and vibration related disturbance to neighbours following owners’ installation of various types of timber floors has become such a big problem, that the new NSW Strata Legislation to be introduced in November will no longer permit such decisions to be made by executive committees, but will instead require that those to be determined only by a majority vote at a General Meeting.

So if you’re determined to seek consent, make sure that your chosen suppliers and installers indemnify you if noise / vibration and similar complaints subsequently arise, or better still have a look at good quality timber patterned vinyl flooring.

[Whale]

deliria1 – the advice that you’ve been given is from the person who undertook the initial valuation, with which you and presumably some other owners don’t agree, that I’ve given you the means (in post #2) to resolve, and which that valuer obviously doesn’t want to re-assess.

So is there a problem with you placing an appropriately worded motion on the agenda for the next general meeting, and with lobbying other owners for sufficient support to pass the special resolution that’s necessary to have all or some of the lots’ units of entitlement re-assessed by a different valuer on the basis of market value?

Your explanation of how selling “off the plan” works is a reasonable but while you’re explaining that and your issues with the initial valuation, they’re not being rectified; which was the whole point unless I’m missing something (?).

[Whale]

My response to that general situation is NO, but if you can perhaps elaborate upon the specifics that have led you to ask the question, the response may be different.

[Whale]

Strata building insurance is no more complicated than any other form of building insurance, although it may be more expensive if it’s organised by a strata manager, as they typically receive upwards of 20% commission from the insurer that’s then incorporated with the premium.

The good news is that despite the lawyer’s reluctance to earlier clarify the strata insurance matter, your Scheme appears to meet the criteria for its Owners Corporation (O/C) to be exempted from the otherwise compulsory requirement to hold that type of policy, as the buildings comprising each of your lots are physically detached, and each building is contained wholly within the boundaries of its lot.

If that’s indeed the situation, then provided your O/C (i.e. the 2 owners) unanimously resolves in that way in accordance with a motion on the agenda for its next General Meeting, then thereafter building insurance for the individual lots is at cost to and at the discretion of their individual owners.

Incidentally, precisely the same criteria applies to the requirement for the O/C of a two lot scheme to have a Sinking Fund.

Sect 83(4) of the NSW Strata Schemes Management Act (1996) currently applies, as will in identical terms Sect 160 of the 2015 Act that’s to be introduced this November.

[Whale]

I had a very similar problem with a housing client who occupied a unit in a scheme where my wife and I then owned a holiday unit, that for the record we didn’t rent.

I was secretary of the executive committee at the time, and so on every occasion that we visited our unit I was immediately hit with tales of this person’s shenanigans, and with pleas from other residents to do something about it.

As is my way, like you I tried to reason with this person without success, so in the end the other members of the committee and myself formally met, and devised and minuted an approach based on the criteria that:

1. The tenant of the unit in question was Housing NSW
2. While Housing NSW has some exemptions from the provisions of the Residential Tenancies Act, none apply to the provisions of the Strata Schemes Management Act (SSMA)
   
3. Sect 5 of the SSMA states that “this act binds the crown”, which reinforces the fact that Housing NSW is bound by all of its provisions.

So based upon all the above, the executive committee resolved to issue Housing NSW with a “Notice to Comply” relative to each specific By-Law that its client had breached and about which they’d been made aware by members of the committee, including for creating a disturbance, parking vehicles on common property, obstructing common property, poor behaviour, and for using balcony railing as a clothesline.

Each Notice to Comply (5 in total) was sent to the Regional Manager of Housing, who within a few days contacted me by phone to express his indignation, and to claim that his Department was not required to comply with the SSMA because it effectively absolved itself of its responsibility to do so in the Agreement that it has with its clients.

I politely explained what had been going on with his client and the three (3) criteria that we’d adopted, whereupon the Regional Manager advised that he’d be seeking legal advice, and that he’d make contact afterwards.

In a surprising short time (a few days as I remember) I was contacted by an ex-London “bobby” who then held the position of the “Anti-antisocial Behaviour Officer” with Housing NSW (only a Govt. could create such a job title!), who arranged to meet the committee over a coffee (he paid) to discuss their client’s shenanigans and our discussions with her which we’d documented, whereupon he advised that the Department held the lease over an Office in town to enable him to have “meaningful discussions” with problem clients, and that he’d arrange to meet with our problem.

We weren’t advised of any details of what was discussed, but I did receive a phone call to advise that Housing NSW’s client in our scheme would be relocated; no doubt so that other strata dwellers in town could be annoyed and harassed by her.

After a lot of finger pointing, and threats to stay put by this woman and her male friends, she and her possessions were quietly moved out at the expense of NSW Taxpayers!

The best outcome of all was a very polite letter from Housing NSW’s Regional Manager to confirm in general terms what had happened, to advise who we should instead contact if any further problems arose, and specifically to undertake that any future clients that were considered to occupy any unit in our scheme where NSW Housing held the Head Lease would be from a list of existing clients with whom the Department had “history”, and who it believed would be worthy of / be grateful for a beach-front unit with a wonderful view.

So in addition to following Jimmy’s sound advice to start at the end, I’d strongly recommend the concurrent implementation of our start at the beginning approach; just make sure that everything’s documented in terms of the client’s disruptive behaviour, dates/ times of discussions with them, and with the convening / decisions / minutes of committee meetings.

PS – I forgot to mention that in 2012 we did Register the Special By-Law mentioned in post #22, and have since been able to use the notice of intention that it provides to dissuade some (but not all) owners from sub-letting to Housing NSW and to similar community groups that they fund without considering anything other than the long-term and secure rental income that such arrangements provide. That’s proven difficult though when representatives of some social justice leaning community housing providers work directly with local property managers who like the easy commission/s and ongoing fees for managing nothing! (1515hrs 24/07)

[Whale]

Craig – it seems that you’re in Perth WA, so if that’s the case I recommend that you contact Tenancy WA, who provides free legal advice and services to tenants across the west; their phone number is (08) 9221 0088.

[Whale]

On the assumption that your unit’s in NSW then you could apply for the matter to be mediated by completing THIS form, but even though that’s a mandatory first step to if necessary having the matter adjudicated in the NSW Civil and Administrative Tribunal (NCAT) it can be a bit of an inconclusive lucky dip.

So before initiating that step I’d suggest you write to the Secretary of your Executive Committee with a copy to your Strata Manager to:

1. again set-out as precisely as possible the nature of the problem, and;
2. state what you believe to be its cause, and;
3. provide details of the dates when you have previously raised the matter and have requested the owners corporation (O/C) to make repairs, and;
4. state that you expect your Owners Corporation (O/C) to comply with its obligations to properly maintain its common property under the provisions of Sect 62 of the NSW Strata Schemes Management Act and;
5. that if it fails to commence work within say 14 days, then you will initiate proceedings in the NCAT for Orders requiring the O/C to do so under the provisions of Sect 138(2) [where you will see that an O/C has a period of 2 months from the date of a request such as yours to either formally refuse it or to commence the requested maintenance / repairs].

Hopefully the formal letter that I’ve suggested will have the desired result, but for your information, the details of the dispute settlement procedure for Strata Schemes can be found HERE.

Finally, the O/C is required to make all repairs to your unit that have been caused by the fault in its common property together with any that consequentially arise during the making of those repairs, but it’s not required to paint or to compensate you for any loss of rent (although landlords’ insurance may depending upon the extent of cover).

[Whale]

In order to even consider a proposal by the RSL or by anyone else your Owners Corporation (O/C) will first need to resolve to do so by way of a majority vote at a General Meeting, and to then elect a Committee separate from the Executive Committee to examine the pros and cons of all possible scenarios and to receive written comments from Owners such as you, which the Committee must report back on to the O/C at every stage of that examination over a timeframe of up to 2 years.

Once the Committee’s final report is ready it must be considered at another General Meeting to resolve IF the O/C, after considering all possible scenarios and Owners’ written comments still wants to proceed, and IF it does, then it has up to 12 months to obtain properly executed documents of support from at least 75% of Owners (which seems to be the only component of this convoluted process that is reported upon in the media), where if there’s less than 75% in favour (or more than 25% against) then the whole process comes to an end.

Conversely, if at least 75% of Owners do provide the Committee with written documents in support of the RSL’s proposal within the 12 months allowed, then there’s yet another General Meeting where a special resolution (≥75% in favour by unit entitlement) needs to be passed in order for the agreement to be ratified.

Then that agreement must to be presented to the NSW Land & Environment Court, where any dissenting Owners can again put their case, before a final decision is made by a Commissioner.

You may be additionally comforted by the fact that the new NSW Strata Legislation that is planned for introduction in November 2016 will limit the numbers of proxies that an RSL representative can hold to 5% of the total Lots in your Scheme (i.e. just one proxy), and by the fact that in order for the mandated special resolution to pass (ref: para. 3 above), the RSL and the possibly related Owners combined would still require the support of around six (6) additional Owners.

So with three (3) mandated General Meetings over a 2 year period where at each Meeting Owners such as you can put forward your points of view, and a further opportunity to do so before the NSW Land & Environment Court, I suggest that you seek the support of like-minded Owners and then just sit back, only whilst waiting for the process to commence, and then get involved!

[Whale]

Level_one – I don’t know how common it is, but I am aware that some strata management companies have a database of “core contractors” such as for plumbing, electrical, carpentry, and general maintenance for both routine and for emergency / after-hours works, and that in a couple of instances about which I’m personally aware those contractors pay to be on that list due to the regular work that can result, and of course load-up their quoted prices to owners corporations (O/C) in order to offset that.

I’m also aware that contractors on a strata managers’ list of “core contractors” would as a prerequisite need to provide evidence of holding the relevant licence for the work they undertake, current liability insurance, an Australian Business Number (ABN), Goods & Services Tax Registration (GST), and the ability to produce a Safe Work Plan in accordance with WorkCover’s workplace health and safety requirements (in NSW).

There’s no basis for cynicism as strata managers (S/M) who properly scrutinize contractors by the means described are doing so in the best interests of O/Cs as their clients, and no doubt of themselves in terms of time saving and invoice processing etc, but those S/Ms are working for an O/C would can instruct them to obtain quotations from whomever they choose in circumstances where, depending upon the area in which those contractors operate, there will undoubtedly be a number of others who, whilst not being on the strata managers’ list (perhaps by choice), can nonetheless provide them with quotations and the aforementioned documentation without any loading for doing so.

So the choice is one for your O/C generally and its Executive Committee specifically, but my advice would be to use the S/M’s “core contractors” for emergency / after hours works, to require competitive quotations from others for general maintenance and repair activities, and to then make an informed assessment about the best way forward.

[Whale]

dech – At ≈$900 / window I think your Owners Corporation is potentially being got-at, because I can’t conceive of a situation where any competent tradesperson couldn’t drill a metal framed casement window without breaking the glass, but in any case it’s possible to restrict both chain-winder and bar type openers.

Try contacting Doric and Assa-Abloy (inc. Lockwood, Whitco, Yale etc) for some advice on suitable products and recommended installers in your area.

[Whale]

Jocko said….. The window restrictors have been very well accepted by both owners and tenants.

….and that’s good because the requirement as shown in both the 2010 and public consultation version of the 2016 Regulation is that locking devices must be:

“capable of restricting (my emphasis) the opening of a window so that a sphere having a diameter of 125mm or more cannot pass through the window opening..“

So while all complying devices that allow the window to be fully opened, fully closed, or locked at 12.5cm complies strictly with the wording of the Legislation, I think you’re splitting straws by suggesting that its practical application was for anything other than a permanent restriction as per Jimmy’s conclusion.

[Whale]

neerav – Schedule 2, Clauses 3 & 4 (HERE) of the NSW Strata Schemes Management Act (1996) sets-out what’s required to be on the agenda, and any discretionary items such as those that you mention could be submitted for inclusion on the agenda and for discussion by those in attendance and entitled to vote, including in the context of the developers’ defect bond as proposed under the new legislation about which you’ve posted elsewhere.

[Whale]

JC – in simple terms, your owners corporation (O/C) is allowing itself to be double-dipped!

The commission paid to strata managers by ALL insurers is a contentious issue at least from the perspective of its rationale, but I’ve been told that its supposed to reimburse the administrative time and advocacy that strata managers put into quoting and obtaining an insurance contract for a scheme, and additionally for the advantage to the insurer that arises from the strata manager’s close relationship with the O/C and of the risks associated with its scheme.

Whether or not all that’s plausible, if your O/C is additionally paying a broker then it is as I say being double-dipped; so dump the broker and either ask your strata manager for quotes from each of the insurers with whom they have a relationship or have the secretary of the executive committee do a ring-around, and have those proposals however sourced decided upon by a majority vote at a general meeting (e.g. AGM).

The legislators must also have regarded the matter of strata managers’ commissions as contentious, as the NSW Strata Schemes Management Bill (2015) once gazetted (due 11/2016) will require strata managers (S/M) to at each AGM disclose all such commissions that they received during the past year, all that they expect to receive in the coming year, and if the O/C does not consent to those payments for justifiable reasons (as yet undefined) then it can apply to the NSW Civil and Administrative Tribunal (NCAT) for those to be paid to the O/C.

Recent anticipatory amendments that I’ve seen to the standard form of the Strata Management Agency Agreement (between O/Cs and S/Ms) include a quid-pro-quo clause whereby a S/M’s “service fee” may be increased by the amount of any commissions necessarily forgone.

Slightly off-topic but by way of a heads-up for flatchatters, the new Act will repeal the present requirement for an O/C to obtain an insurance valuation each 5 years, so now all O/C’s will need to avoid the consequences of co-insurance by even more closely examining the adequacy of its compulsory building insurance in terms of replacement costs.

[Whale]

Sherlock – I’ve had a couple of attempts to respond to your post today, but in addition to being side-tracked, I really can’t think of any innovative approach that you and like-minded owners could take to resolve the matter, other than to make sure that you all attend the extraordinary general meeting (EGM); ideally in person but at least by proxy to somebody who is attending with instructions about how you want your vote/s to be cast.

There’s no doubt that your executive committee (E/C) is in breach of the owner’s corporation’s (O/C) resolution regarding the limitation on spending for the matter now in question, that where a decision of an E/C is in conflict with one resolved by an O/C that the decision of the latter takes precedence [Ref:NSW Strata Schemes Management Act Sect 21(4)];, and that your strata manager should have known better than raise a work order for the repair works even if they were instructed to do so by the E/C.

It sounds to me like your E/C Chairman is one of those individuals who considers that he has an unalienable right to do as he chooses, so the best approach in my opinion would be to play the procedural card.

By that I mean to make it clear that the E/C should have met to make the decision about breaching the O/C’s resolution and that you’d like to see the minutes of that meeting that under the provisions of the Strata Schemes Management Act (SSMA) must be provided to all owners within 7 days of its conclusion.

Is there an agenda for the EGM, has it been distributed to every owner at least 7 days prior to the meeting, and is there a motion there setting out what is to be resolved (that I assume will be to retrospectively vary the O/C’s limitation on spending)?

Did the strata manager receive formal instructions to raise the work order, and if so from who?

A non compliance with any of the above would provide grounds to adjourn the EGM, but the best rationale would be on the basis that any motion to override a resolution of the O/C would, if carried, conflict with the SSMA and would be therefore unenforceable and may be ruled out-of-order.

[Whale]

monique – As you’ve had no responses I’ll jump in before your post drops off the bottom of the list…

Firstly, you’re correct in stating that in the absence of any special by-law that your owners corporation (O/C) may have Registered or any specific notation on the Strata Title Plan to the contrary, the existing balcony doors would form part of your lot and are therefor your responsibility.

That’s important because the general meeting procedure that your strata manager is talking about to consider your proposal as a special resolution (where by the way the 75% in favour involves only those in attendance both personally and by proxy), followed by a special by-law that would ordinarily be necessary to among other things hold you and subsequent owners of your lot responsible for the maintenance and repair of the balcony doors IS NOT APPLICABLE – because the doors aren’t the common property of the O/C; they’re yours!

So the primary hurdle that you need to jump is the model by-law #17 about owners “not maintaining within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building” without the prior written consent of the O/C, where the fact that your lot’s at the top floor rear would assist in compliance / gaining consent.

The secondary hurdles relate primarily to any impacts that your proposed works may have upon neighbours (e.g. work times & noise), tradespeople moving themselves and materials about the common property, and the O/C’s interest in ensuring that those tradespeople hold insurance to cover public liability and workers compensation.

You needn’t worry about checking the Strata Title Plan just yet by you should check for any relevant special by-laws that may have in the past been Registered, and if that’s all clear (as I anticipate) then you need to write to your Executive Committee Secretary (via the strata manager) to request that they convene a meeting of the Committee (E/C) as soon as practicable to consider your proposal, and include with that correspondence:

1. a statement that the wall within which the existing sliding door is located and within which the proposed new doors are to be located is yours and not common property.
2. the full scope of your proposed works
3. the style and colour of your proposed bi-fold doors; that you should try so far as is possible to match with the existing sliders.
4. your tradespersons’ name/s incl. their licence and insurance details
5. your preferred start / end dates and times / days of work, together with an undertaking that you’re willing to comply with any reasonable variations required by the O/C.
6. and a statement to the effect that you will continue to be responsible for the on-going maintenance, repair, replacement of your bi-fold doors; and
7. an undertaking that all building debris will be removed from the common property and be properly disposed of off-site.

As your proposed works will not involve the common property, your E/C will be able to grant consent on behalf of the O/C, and if it wishes to at some stage legitimise future proposals of a similar nature that may more directly involve by-law 17, then it may choose at the collective cost of the O/C to have a generic special by-law drafted in suitable terms for consideration at a general meeting (e.g. an AGM).

In the event that the strata manager persists with their original approach, then quote to them the relevant provision of the Strata Schemes Management Act [Sect 65(A)]where that approach only applies among other things where the works involve adding to, altering, and/or erecting a new structure on/to the common property, and where even then a special by-law is optional in the circumstances described.

Good luck!

[Author]

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