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jeff – if your former Strata Manager was not the Licensee of the business, then you or your Owners Corporation should make contact with whoever is, and explain the situation.
Depending upon how that goes, there is a Code of Conduct under the NSW Property, Stock and Business Agents Act (2010) that’s enforced by the NSW Department of Fair Trading (DFT), and another administered by Strata Community Australia (SCA) as the peak industry association.
So again depending upon the reaction that you get from the Licensee, I’d suggest that you read through THIS document and then contact SCA in the first instance to ascertain if your Strata Manager (or their Agency) is a Member, and if so then you or your Owners Corporation (O/C) can lodge a Complaint.
If your former Strata Manager is not an SCA Member (or even of they are), then you or your O/C can lodge a Complaint on-line with the DFT.
A quickie from the migrating Whale re. tubs’ post (#1).
The carspace would almost certainly be part of the Lot, and as such the tenants would be in breach of the Residential Tenancies Act if they sub-let any part of the Lot without the prior written permission of the Landlord / Proprietor.
So maybe check that with the Proprietor, and if permission’s not been given then ask them to move the illegal occupants and their belongings, and if permission has been given then request the Proprietor to withdraw it – especially if permission causes that Proprietor to bring about a breach of By-Laws.
sent from my iPhone
KWP – actually the NSW Act doesn’t definitively state that the responsibility of any alterations to common property transfers to the O/C once a lot is sold, that’s just how it’s generally interpreted (including by me).
That’s why I don’t believe that a SBL such as ours can conflict with the Act, but rather supports our O/C’s assertion that a new Owner, who after all’s been advised pre-settlement via a Strata Search and/or via a S109 Certificate about the existence of our SBL and/or of un-consented works involving the Common Property within the Lot that they’re intending to purchase, will be held responsible for maintaining and repairing those.
Thus far there have only been two (2) affected sales in our Plan where in both cases a pre-settlement adjustment to account for the costs to the new Owners of rectifying un-consented renovations (both floors) was made and thankfully, because despite a new title I fear a continuation of inconsistent and contradictory rulings, we haven’t yet been taken all the way to the Tribunal on this, as all Owners have either accepted the validity of our SBL or, in only one (1) instance, taken us to arbitration were they’ve been encouraged to accept it.
I’m not suggesting that our Plan’s SBL is the perfect remedy to this persistent problem, but it’s better than any alternative that I’ve come across to date save the re-write of the NSW Act when a Government finally has the courage to do it!
Off the pack the Motorhome now; back in a week!
Mr Strata said …. has anyone thought about the simplest and most obvious of all by-laws, normally by-law 5 under schedule 1 by-laws, being that you can not damage common property.
Mr S, I am of the opinion that just like most other By-Laws, #5 is intended to stop something (i.e. a breach) from occurring as opposed to the remediation of its physical consequences, and that it applies moreso to someone driving a nail into a common wall or deliberately defacing common property than it does to managing the activity of someone making changes to, altering, and/or adding something to that property.
This is a difficult area for all Owners Corporations as those Owners who want the benefits of Strata living whilst retaining the benefits of a stand-alone home when it comes to any and all activities within their “castle”, rarely seek its prior written consent before commencing renovations, and it’s difficult for Executive Committees and other interested Owners to detect and act upon un-consented activities at an early stage unless consequential activities such as noise and the parking of contractors’ vehicles impacts.
At the risk of beating my own drum again, our self-managed plan managed this situation in 2011 by unanimously resolving to establish and maintain a Register of Changes (including alterations, additions, and new structures) to the Common Property where, after a 6 month moratorium during which Owners could with guidance from the E/C provide details of any existing changes within their Lots, all those then visually confirmed as involving Common Property were described in the Register.
After adding-in all the changes to Common Property that the O/C had itself made over the years, the Register was then closed-off, and at the next General Meeting it was specially resolved to Register a Special By-Law stating in very specific terms that any changes, alterations etc not shown from time-to-time in that Register were un-consented by the O/C, and that the responsibility for maintaining and repairing those was the responsibility absolutely of the Owner/s from time-to-time of the Lot/s concerned.
I also include an item describing the above and the requirements under Sect 65A in my Report forming part of the Agenda for every AGM, and include advice re any inclusions in the Register (or not) at “other items” on every S109 Certificate provided prior to the settlement of a sale within our Plan.
OK it’s more work for the hard-working Secretary, but at least our O/C incorporating of course all its Proprietors is better, if not totally, protected from being lumbered by claims by Proprietors for the often expensive renovations and additions within their Lots to be maintained by it, and conversely from having to play catch-up by bluffing those Proprietors into maintaining and repairing their own renovations, and by quietening their noisy floors.
Almost four (4) years down the track, and our management system is working a treat!
drakes – even if the damage to Common Property within your Lot is due to settlement of the building, and I agree that’s yet to be proven, I don’t believe that your Owners Corporation’s Special By-Law (SBL) obviating its responsibility to properly maintain and repair that part of its Common Property is legal.
The Superior Act (to any SBL) is in this instance the NSW Strata Schemes Management Act (1996) which at Sect 62, Clause 3(b) provides that whilst an Owners Corporation (O/C) can resolve by way of a Special Resolution at a General Meeting not to maintain a particular item of its Common Property, that’s only permitted if, amongst other things, that decision will not adversely affect the structural integrity of that part of its Common Property or detract from its appearance.
I believe that you could substantiate an argument that as the effect of this SBL of your O/C is adversely affecting the appearance of their wall within your bathroom, and that their wall’s structural integrity is compromised such that leakage through it could damage both other areas of its Common Property and other Lots, and because it’s in conflict with the provisions of a Superior Act the O/C should immediately move to repeal its SBL and to concurrently commence all necessary investigations to limit the impacts of settlement (if that’s what it’s proven to be) and to commence repairs to its wall within your Lot and any others similarly affected.
Just in case your O/C is unconvinced of your argument, perhaps seek the support of other similarly affected Owners before advising it that you may be collectively forced to seek an Order by an Adjudicator of the NSW Civil and Administrative Tribunal to have its SBL invalidated on the grounds that it did not have to power to make it.
When things (apart from the wall) start moving, if the tiles there aren’t those originally fitted to your bathroom when the building was completed, then your O/C could hold you responsible for the replacement of those when its work is completed, and even though the fairness if not the legality of that too is doubtful in this situation, I wouldn’t push it.
So it comes down to whether the Meeting that you didn’t attend either personally or by granting your proxy, with instructions, to an Owner who was attending was a General Meeting of the Owners Corporation, and whether the Motion seeking to approve of the re-build was resolved as a Special Resolution, where the vote is assessed not on the basis of a simply majority (show of hands) but instead on the basis of the lot units of entitlement of those Owners in attendance, and where ≥75% of those need to vote in favour in order for the re-build proposal to pass.
If it was a General Meeting and the Motion was properly (i.e. specially) resolved, then I’m afraid that it’s not a case of any existing structures being changed without regard to Owners, just without regard to you because you didn’t attend.
If your balcony door doesn’t have a leakage problem, then your best (but not only) avenue would be in my opinion to offer to accept personal responsibility for the on-going maintenance and repair of it. That too will require yet another Motion to be specially resolved at the next General Meeting, and the subsequent registration of a Special By-Law (SBL) covering your proposal (if it’s accepted), so perhaps canvass the opinions of other Owners in the same situation as you with a view to both strengthening your case and sharing the cost of a single SBL covering all of the Lots involved.
As I said there are other avenues, but they’re more difficult and success is less likely in my opinion IF the Meeting was properly convened, the supporting documentation complete, and the Motion properly resolved.
It’s time for my infamous shoe-box analogy again!
So….. picture a shoe-box that’s been divided into individual compartments. Anything in, on, or in your case leaking through the sides, bottom, or lid of the shoe-box is the responsibility of your Owners Corporation (O/C), and anything in, on, or leaking through any of the compartment dividers is your responsibility.
There are some subtleties in the above analogy, and as water tends to “track” quite extensively from its source, you would be well advised not to do anything yourself just yet, and to instead discuss the matter with your building manager, who by the way is employed to assist you as a member of the O/C, and in the meantime have a read through THIS excellent publication of the NSW Office of Fair Trading.
The NSW Strata Schemes Management Act (1996) applies, where Sect 62 outlines the unfettered responsibility of an Owners Corporation (O/C) to maintain and repair its Common Property, and Sect 65A sets out the procedures whereby Owners (and the O/C) may make changes to that Common Property, and specifically at Clause 3 where the responsibility for ongoing maintenance and repair of any changed items, consented or otherwise, remains with the O/C unless a Registered Special By-Law states differently.
As the Secretary of a self-managed plan it pains me to say so, but your case is aided by the facts that it’s extremely difficult for an O/C to claim that it was unaware of unauthorised changes to its Common Property by a Lot Owner, and to then insist that a subsequent Owner of that same Lot is responsible for those changes, and additionally because downlights actually extend into the Common Property (roof space) the extent of O/C’s liability for maintenance and repair is strengthened.
I’d suggest that you strive for some form of compromise such as sharing the costs in some proportion, because if push turned to shove your O/C could resolve not to maintain the downlights, and instead to just remove them and restore the Common Property (ceiling) to its original state.
I don’t think that I’ve explained myself well enough.
I assume your circumstances are that your Owners Corporation (O/C) is working off one of the Model By-Laws covering the keeping of animals on a Lot or on the Common Property, where animals / pets cannot be kept there without the prior written consent of the O/C.
It’s relevant in your circumstances that a consent of the O/C can, and usually does, include conditions that therefore form part of that consent.
You stated in your post (#1) that in your 4 lot strata, 2 owners are prepared to vote for consent on the basis of a included condition that the pet (a dog) must be kept on a leash when on the Common Property, and the other 2 owners, including the one seeking consent, will also vote for consent but without the included condition.
So if the Motion is for the consent to be granted with the included condition, you and the like-minded owner will vote in favour and the other two owners will vote against, so it’s a tied vote and that Motion is lost; no consent and no dog!
Conversely if the Motion is for consent with no on-leash condition, the other two owners will vote in favour and you and the like-minded owner will vote against, so again it’s a tied vote and the Motion is lost; no consent and no dog!
There’s a requirement for O/C’s to behave reasonably in such circumstances, so the owner seeking consent could take the matter to arbitration, where I’m sure that a preference by 50% of owners not to refuse consent, but rather to grant it subject to a very reasonable condition (in my opinion) would be a upheld.
I hope that makes the position clearer.
Yeh, good points KWP, although it depends upon the attitude of the Insurer.
I don’t know why you can’t see some posts (?).
Oh and by the way oystercove, the Act allows any additional insurance premium to be passed-on to the Owner of the Lot involved. OK they’re supposed to agree beforehand, but the O/C can seek Orders from the NCAT if agreement is refused, which if the circumstances are confirmed wouldn’t be too difficult to achieve.
YES I’m afraid they do if you’re referring to the matter and any conditions being decided at a General Meeting, and if the Motion is voted upon by a simple majority then 2 for and 2 against would see the Motion is lost in its entirety.
If on the other hand the Owners’ lot Units of Entitlement (UOE) varies from one to another, then any one of them can call for a “poll vote” where the Motion is then determined by the total UOE of those in favour and of those against, with the higher number determining the outcome.
oystercove – a quick response before your post slips off the bottom of the list.
The first hurdle faced by Owners Corporations (O/C), and mores the pity, is that they’re not “persons” under the terms of the NSW Residential Tenancies Act (RTA) , and consequently unless tenants are in breach of a By-Law, O/C’s can’t take any action against them in the Tenancy Division of the NSW Civil and Administrative Tribunal (NCAT) – incorporating the former CTTT.
So with regard to the possible use of the Unit for commercial purposes, again, in the absence of a Special By-Law of your Strata Plan prohibiting that, your Owners Corporation (O/C) needs to rely on the conditions of Council’s original approval for the development, which I’m sure you’ll find is for residential use. However, I wouldn’t recommend heading down that path in too much detail, as Councils sometimes delve too far into that detail and discover a range of other non-compliances that end up just costing your O/C money to rectify; so gently gently with a general what-if type inquiry on that one!
Concurrently, have your O/C Secretary remind its Strata Manager that they are employed by it (i.e. all Owners), and to instruct them not to deal with tenants concerning phone lines or anything else, but to instead direct them to contact their Landlord or their Managing Agent with regard to any queries / problems that they may have. In that way expenditure by the O/C will be avoided, at least until (and maybe even after) the Owner / Landlord of the Unit makes contact, at which time your O/C and Strata Manager can raise the matter of the suspected commercial use.
Then while they’re at it, have your O/C or Strata Manager write to the Owner / Landlord of the Unit with regard to them providing a Tenancy Notification under S119 of the NSW Strata Schemes Management (1996), which by the way can by application to the NCAT attract a penalty to that Owner / Landlord of $550 if it’s not provided within 14 days of a Lease commencing.
Your O/C and Strata Manager will then know the names and numbers of legal tenant/s and when the Lease ends, will be able to conclude whether any non-tenants are in “occupancy”, and will be in a better informed position to discuss possible breaches of Council’s Consent, of the Lease itself and of the RTA with the Owner / Landlord, which by the way states that premises covered under their provisions are those “used or intended to be used as a residence”.
Also look for any breaches of your Plan’s By-Laws, such as those relating to parking in circumstances where there are so many “occupants”, because your O/C is a “person” who can initiate action in the Strata Division of the NCAT against any residents (i.e. Owners and tenants) who breach By-Laws.
Hope that info. helps, but if nothing else it will avoid your O/C spending money on investigating phone lines or indeed anything else in the absence of a formal request from the Owner / Landlord of the Unit concerned, at which time the O/C can tackle them about the suspected commercial use of their property and its implications, and advise what if anything it may or may not do about any maintenance request/s involving common property.
TC – to facilitate advice, it seems that your Executive Committee is coordinating the renovations, but can you please advise how the decision to undertake those was made? On the face of it, it seems that decision should have been by all Owners at a General Meeting of the Owners Corporation, possibly by a Special Resolution as the works involve changes to the Common Property, where you could have raised the issues now given in your post.
A little more background on that please.
I understand where you’re coming from bubbles (an interesting pseudonym in these circumstances) but again, strictly speaking, the Owner of the adjoining Unit could not be held responsible unless they were themselves aware of the leakage and didn’t report it; and how could that be proven in your circumstances?
Similarly, I agree with you about the replacement of your carpet, and whilst that matter too should be part of your submission to your Executive Committee (not to the Building Manager), if it’s not well received, it may be expedient for you to lodge a Claim against your Contents Insurance and seeking to then only claim your excess from your Owners Corporation.
Dech – I take your point about Strata Managers, although wonder whether some omit to properly advise their Clients (Owners Corporations) simply because they themselves don’t know even the basic tenets of Strata Legislation.
With regard to Office Bearers “unawareness” being a defense, I seem to recall something in Law about a persons lack of awareness about a legal requirement only being a defense if it (the law) was not known to the person, and it had not been published or been otherwise reasonably accessible to them; that could hardly be claimed by Executive Committee Members or a Strata Manager for that matter with regard to the provisions of Strata Legislation.
Further, I can’t agree with advice about actions in good faith being a defense for an illegality, in fact our Insurer’s product disclosure statement makes it pretty clear that “any dishonest or fraudulent act, criminal act or malicious act or omission” by an Office Bearer renders that component of the policy null and void.