Forum Replies Created
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Ian – your Owners Corporation needs to take into consideration that the household sewerage system that its required to maintain is designed to operate under gravity, and to accept gradual and intermittent inflows calculated on the basis of the numbers of Lots in the building, and on the numbers / types of connected fixtures and fittings within them.
Those systems are not designed to accept pumped inflows, or more viscous materials than those that can be reasonably expected from the use of household kitchens, laundries, and bathrooms, and that’s precisely why most Australian Water Utilities used to prohibit the installation of below-sink garbage grinders in multi-unit-developments.
That prohibition’s been lifted now, not so much due to design improvements in household sewerage systems but moreso due to residents’ preference to use the now more readily available collection systems (including for recyclables), and to a lesser extent after intense lobbying of Governments by a major importer who doesn’t have to compensate those Owners Corporations (O/C) for their costs to clear those multiple sewerage blockages that, perhaps coincidentally, occur several metres downstream from their product/s.
All slightly off-topic, but nonetheless relevant to and synonymous with the potential impacts arising from the installation / connection of a macerating toilet to the household sewerage system serving a laundry!
In addition, they’re noisy, often odorous, and prone to blockage if residents think that they’re using a normal gravity-based toilet and continue to flush hair, dental floss, facial tissues, cotton wool etc etc.
As you can guess, my response would be a resounding NO particularly in a high-rise situation, but on the subject of the O/C’s consent, if any part of the proposed installation is attached to the floor or to a perimeter wall of the Lot involved then (non)consent is required, and otherwise the proponent only needs to give the O/C 14 days written notice of their intention to alter a “service” within their Lot, including the details of the plumber undertaking those works.
Matt – as I suggested, I don’t think that the person your Owners Corporation (O/C) “employs” is a caretaker, but if in whatever capacity, they are in fact employed as opposed to being a contractor with their own ABN and Liability Insurance (workers compensation), then that’s even more reason for you to ascertain those details due to the likely impacts upon the O/C’s compulsory insurance coverage, and its funds should that person injure themselves in the course of their “employment”.
As for your access to the “contract”, being a Strata Owner is like being a shareholder in a public company with your Executive Committee in the role of a Board of Directors, and as such you’re entitled to examine and if necessary take copies any and all papers and records of your Owners Corporation as are held and maintained by its Strata Manager.
That entitlement is given under the provisions of Sect 108 of the NSW Strata Schemes Management Act, where the regulated fee is currently $31 for the first hour, and an additional $15 for each half-hour or part of half-hour thereafter, plus any administrative fee that your Strata Manager may charge such as for photocopying.
So write to your Strata Manager explaining precisely what it is that you wish to inspect, enclose the $31, and get cracking.
One final observation, attitudinal issues aside perhaps your “caretaker” hasn’t been told what’s expected of them in terms of common property maintenance and repairs, and this may be an opportunity for your O/C to address that together with a review of their contract terms.
db – firstly, whilst the Executive Committee (E/C) can meet to discuss the Owners Corporation’s (O/C) consent or otherwise to your renovations, the decision one way or the other and to create and register a Special By-Law must be made by way of a Special Resolution at a General Meeting of the O/C as a whole.
Secondly in order to pass, a Special Resolution requires a YES vote by ≥75% of those owners in attendance (both personally and by proxy) at the General Meeting, with that percentage being determined from a calculation based on the the units of entitlement (UOE) attached to each owner’s Lot and the aggregate UOE for the Plan.
So in your Plan of 3 Lots with say each having 30 UOE, on a vote to create and Register a Special By-Law where the other owners voted YES and you vote NO, that would be 60 UOE / aggregate 90 UOE, being 67% in favour, and that Motion would fail. Similarly, any vote to grant consent to your renovations would also fail if the votes, as you’d expect, were cast as above.
Lastly, if the UOE for each of the 3 Lots in your Plan is disproportionate and your NO vote cannot cause the Special Resolution (SBL) to fail, then any condition of a resultant SBL that requires you to maintain any components of your renovation that, despite your advice, the O/C insists are Common Property would be unenforceable unless you provide your written agreement to that condition in advance of the SBL being Registered, and I doubt that would happen.
So let the E/C have its Meeting with you in attendance, ask to address the Meeting, calmly reiterate your point of view including the advice that you’ve obtained from Fair Trading, L&PI, and elsewhere (i.e. here), and advise that on the basis of that (advice) you will be voting against any General Meeting Motion to create a SBL, that you will not be meeting any costs of the O/C, and that you won’t be agreeing to any Condition of a SBL that involves you maintaining Common Property.
Here is the relevant extract from Sect 65A of the NSW Strata Schemes Management Act; my emphases in BOLD:
Owners Corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and…
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Yours is a problem of a type that’s been discussed ad-finitum on this forum, so perhaps have a browse HERE in the first instance.
As you’re (I assume) talking about stand-alone houses as opposed to “flats”, even though I’m not confident about a positive response, public housing tenants are required, amongst other things to “cooperate with neighbours”, so as the tenant is actually NSW Housing, complain to them and to the Owner of the property via the Agent who manages it.
Matt – if you’re in NSW, a strict interpretation of Sect 40A of the Strata Schemes Management Act would suggest that your “caretaker” is actually someone who’s been engaged by your Owners Corporation (O/C) to perform cleaning and maintenance duties; somewhat akin the Janitor to you glibly referred to in your post.
Whatever the nature of the person’s appointment, it should have, at least initially, been formalised in some way such as via a a scope-of-work or even a Caretaker Agreement under Sect 40A, and your O/C or Strata Manager should only be making agreed payments in accordance with that and/or on the basis of submitted invoices.
Whilst your O/C could terminate its “caretaker” by a simple majority resolution taken at a General Meeting, I’d suggest that in the first instance you ascertain the terms of their appointment, any conditions attached to that such as them holding an ABN, liability insurance, and properly invoicing for services completed, and critically if there are any formal termination provisions in place.
That information should indicate how you and like-minded Owners should best proceed, but feel free to come back if you then need any further information or advice.
Daphne – S108 enables the Owners Corporation’s records to be inspected not taken, so you’ll need to have your Strata Manager make the relevant financial records available for copying / scanning by you or by them, and you’ll need to pay them for that (administrative) service; there should be a schedule of charges in their Agency Agreement.
So state as accurately as possible what it is that you want inspect, include the prescribed fee for say 1 hours work, and request that your Strata Manager invoices you for the “overs” in accordance with their schedule of fees.
I recall you stating in another post that you have a new Strata Manager, so hopefully they be cooperative and have the records that you require.
I didn’t post earlier as my view is not different from Jimmy’s, but perhaps the Owners Corporation (O/C) [that includes you by the way] is of the opinion that the source of the leakage has something to do with a fault involving the waterproofing below your balcony door or wall; that’s a common fault.
If that’s the assumption or even the fact, then you would be responsible for rectifying the source/s of the leakage and the O/C would, as Jimmy advised, be responsible for repairing the concrete slab which, as it forms the floor of your Unit (balcony) and the ceiling of the Unit below, is common property.
If that’s the situation, then I’d suggest that you approach your O/C about it obtaining quotation/s to identify and then concurrently rectify both the source/s of the leakage and its consequences involving the concrete slab, and with the offer that you reimburse it for the costs of the former IF it’s found to involve your property (i.e. the wall adjoining the balcony and the doors/windows in it).
Andy – in NSW the Residential Tenancies Act provides that tenants must be given at least one means to make rent payments that is free of fees other than for those directly charged by the bank or financial institutation involved (e.g. transaction fees).
So if your Property Manager / Rental Agent is merely passing-on those fees then that would be in compliance with the Act in my opinion, but if it’s some kind of in-house administrative or processing fee then they’d be in breach of the Act and liable for a max penalty of $1,100.
I’d suggest that you contact Tenants NSW who I’m sure will answer your query in a more definitive way.
Flanet – I agree with Scotty and Jimmy, but as a failure by the Executive Committee (E/C) to respond to your 14/10 request may not be regarded as a refusal, I just thought of another approach that may motivate them, albeit a bit more heavy handed.
That’s where if an E/C (acting for the Owners Corporation) fails to “exercise a function” such as making a decision on your request after 2 months, then an Order may be sought under Sect 138 of the NSW Strata Schemes Management Act for an Adjudicator to make that decision for them.
So perhaps let the E/C know that you intend to apply for those Orders on 14/12/14 (2 months after your last letter re the dog); that may motivate them to at least make a decision and place you in a stronger position if, as Jimmy suggested, your Plan’s Pet By-Law incorporates that reasonableness provision.
Thanks for the clarification. I hope that your new neighbour is as cooperative as you have been in setting things right, and that your new Strata Manager knows the ropes.
Good luck!
SP of 4 – The problem you’re facing is that like it or not your Owners Corporation (O/C) gave approval to your neighbour’s renovations without following the relevant provisions of the NSW Strata Schemes Management Act (SCMA), you cooperated, and now that things haven’t worked-out as expected it’s trying to resolve that by enacting those provisions retrospectively.
Apart from urging that your O/C follows the proper procedures in future, all I can suggest is that you tread very carefully on this occasion, as whilst your posts don’t indicate just how much of that “approval” was in writing, your new neighbour could claim he had an expectation that the O/C’s consent was properly given.
Furthermore, the Special By-Law (SBL) that you’re now proposing in order to shift maintenance and repair responsibilities of the plumbing and other works to your neighbour would be unenforceable under the SCMA unless that owner agrees in writing to its provisions, and of even greater significance, if the units-of-entitlement attached to your neighbour’s Lot represent >25% of the aggregate for your Plan, then a “NO” vote by them at a General Meeting would see a Motion to create and Register a SBL fail.
Hopefully, your new Strata Manager knows what he/she’s about and can negotiate an amicable and legally correct solution.
…and I thought I was the only one who got a mediator off-side!
Whilst there’s no legislative requirement for those involved in Strata disputes to attend mediation, the Adjudicators take a dim-view of any party to a dispute that has not first attempted it.
So in my opinion it’s a bit of a faux job-creation exercise for those mediators employed by the NSW Department of Fair Trading (DFT), “faux” because despite the fact that people in the Strata Division of the NSW Civil and Administrative Tribunal will actively point the parties in the direction of the DFT, there are other options for Strata dwellers to fulfill their obligation to attempt mediation.
I’m referring to services provided by the NSW Community Justice Centre, the NSW Law Society, and to a lesser extent the websites of Professional Associations that provide a search facility to enable parties to locate trained private-sector mediators who specialise in strata / community disputes and whose time-based fees may facilitate a quick resolution.
Slightly off-topic, but I wonder when those Special and General Members of the Tribunal who hear the majority of matters will need to hold formal legal qualifications and have relevant experience as opposed to just being able, to “represent a sector of the public in relation to any one or more classes of matters in respect of which the Tribunal has jurisdiction”.
As someone who could, in a totally unbiased way of course, represent that sector comprising owners corporations, I could qualify as a General Member; how silly is that? Answer…..very, which to some extent explains why the current system of adjudication is broken, and consequently why it’s so underutilised.
As Owners should be as well informed as is practicable prior to the Meeting, if it was MY Motion, like KWP (post #6) I’d ensure that something was actually resolved by referencing the names those Strata Managers who have submitted proposals and the costs of those, and that Owners have an opportunity for input to a new Strata Management Agency Agreement that I assume was the basis of those proposals.
Something like:
That the Owners Corporation, pursuant to Section 27(1) of the Strata Schemes Management Act 1996, resolves to select a new Strata Managing Agent (SMA) for Strata Plan xxxx from those (number) who submitted the proposals included at Appendix X of this Agenda, with the appointment of the selected SMA being effective from the date of termination of the current Strata Management Agency Agreement (SMAG) with xxx, and with the delegated duties and terms and conditions of that appointment being as specified in a new SMAG, a draft of which is included at Appendix Y of this Agenda, and that the common seal be affixed to that SMAG which is to be signed by two members of the executive committee.
But that’s me!
OK then…… the Agenda may be a bit cumbersome but it’s certainly legal, and frankly I wouldn’t be too worried about the order of the Motions because those can be discussed in any order that the Meeting decides, and because the budgets can be amended if necessary to properly reflect how the various expenditure items are resolved; that’s why they’re “proposed budgets”.