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Gees Tony, why didn’t you take my earlier advice (post #34) and place this whole saga in the hands of an experienced Strata Lawyer, who I’m sure could issue a letter to your Executive Committee Secretary that would put those bureaucratic bullies and their mates in the Community Assoc. in their place, and see your plans consented to without any more of this nonsense!
In direct response to your latest queries, the Common Seal of the O/C can be placed on any document in any of three (3) ways (the most common first):
- By, or in the presence of, the Secretary and any other Member of the E/C; OR
- By, or in the presence of, any two owners to whom the the O/C has delegated that task at a General Meeting; OR
- By the Strata Manager if that authority has been delegated to them in the Strata Management Agency Agreement that they hold with the O/C and provided they’d derive no benefit from the document upon which the Seal is placed.
Were I in your shoes, I’d step away from all this and brief the Lawyers and suitably delegate them before going away ….and I’ll bet that everything would be sorted by the time you return.
Fair enough KWP, but I like larry’s suggestion (post #4); lodge a claim directly with the Strata Insurer and see what happens, because IF they formally refuse it (which I believe they will as the damage wasn’t due to any failure of the common property) you’ll need evidence of that if you then choose to lodge a claim on your contents insurance.
YES – it would apply to all items on Common Property unless the commercial lot’s exclusive use is covered by a Special By-Law and it makes that lot’s owner responsible for the maintenance of items within the area in question.
Phi, coverage by strata insurance is one of those things that seems to be very much open to interpretation, firstly by Strata Managers many of whom are commission agents of the insurer, and then by the insurer themselves.
That said, I’ll stick my fins out by suggesting that even though kitchen cupboards are generally covered as “lot owners’ fixtures” under strata insurance, the “event” that caused the damage was a burst hose within the lot, and that I’m afraid makes the repairs your problem, and likely claimable under contents insurance provided the strata insurer provides written advice that it won’t cover the event.
As an Owner, there’s no impedement to you making your own enquiries with the strata insurer, but the above is how I see it.
… only my suggested approach as I don’t like recommending that strata dwellers rock the boat when they’re floating in a rubber ducky.
On a more serious note, it sounds like you have one of those Strata Managers who runs with their own agenda when that makes their life easier. You, or better still your E/C, should remind your Strata Manager that she’s contracted by the Owners Corporation to do as it instructs provided that’s in accordance with the Act; and what I suggested is.
Strictly speaking, the resident has changed the Common Property (antenna) without first obtaining the written consent of the Owners Corporation (O/C), and they could be required to restore it to its original (presumably non-operating) state, whereupon the O/C would be required to have it replaced again .
All quite silly really – like how much money are we talking about?
It sounds like the O/C only paid for the roof tile repairs, in which case I’d be inclined let sleeping dogs lie.
However as the O/C is held responsible to maintain and repair whatever style / quality of antenna and cabling the resident has installed, your Executive Committee Secretary should instruct the Strata Manager to advise that resident in writing that they’re not to make any further additions or changes to the Common Property, and that whilst for safety reasons any future maintenance and repairs to the newly installed antenna must be arranged by the O/C, that will be at cost to the resident (as its their antenna).
Luke – there’s nothing in the NSW Strata Schemes Management Act (1996) about occupants’ rights to access Common Property, but that right is implicit in the Owners’ title documents and in Tenants’ Agreements with those Owners.
It seems to me that your Client wishes to access the basement parking area in order to park there illegally, and in those circumstances I believe that your actions are entirely appropriate.
Being denied access to a garage door can’t be construed as being denied access to Common Property, as clearly your Client has access – just not by the means that he/she prefers!
In order to both sure-up your position and to properly and consistently define your Owners Corporation’s requirements for the security of its property, it would be well advised to seek some advice on the drafting of a Special By-Law covering that, and to put it as an item for consideration (as a Special Resolution) by Owners at the next General Meeting.
The works to which you refer would be paid from the Administrative or Sinking Funds depending upon whether they’re simple maintenance or replacements (e.g. the exit signs), and you would have contributed to the budget that pays for those via your Strata Levies in accordance with the units of entitlement of your Lot.
If you believe that the costs of the works is excessive or that it’s being contributed to by carelessness by the owners or occupants of the commercial lots, then you need to take that up with your Strata Manager or directly with the company who does the works.
alinka – perhaps contact Integrated Consultancy Group (they’re sponsors of this Forum) or search using the filtering feature through the Association of Consulting Structural Engineers (NSW) for a company with similar strata experience.
Costa – YES to are entitled to inspect the records of your Owners Corporation under the provisions of Sect 108 of the NSW Strata Schemes Management Act (1996), and as you’ll see there’s a prescribed fee – currently $30 for the first hour and an additional $15 for each half-hour or part thereof of after that.
Clause 3(g) allows you to inspect and if necessary copy “any other record or document in the custody or under the control of the owners corporation”, so that should cover you, but given your circumstances I’d advise you to ensure that the follow all the procedures such as making an up-front payment with your written application to cover say the first hour, that you concurrently provide the Strata Manager with the detail of precisely what it is that you want to inspect, and that you make them aware that you’re prepared to pay for printing / photocopying / downloads to a USB stick etc (take one with you).
CBF – Sect 65A of the NSW Strata Schemes Management Act states at Cl.5(a) that “a By-Law made for the purposes of this section may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation…”
So when the Special By-Law (SBL) is drafted it’s quite appropriate and indeed customary for a provision to be included that requires the beneficiaries (of the SBL) to pay an amount to the Owners Corporation (O/C) each quarter that takes account, amongst other things, of any increased value to their Lot that’s arisen from the consented alterations / additions, and which is not reflected in that lot’s units of entitlement (UOE).
Whilst Cl.5(a) states that any payment is “for the maintenance of the common property”, that doesn’t mean the common property for which the beneficiary is made responsible under the SBL, but rather for the common property of the O/C where amounts for its proper maintenance and care are contributed to the Admin Fund by all Owners on the basis of their UOE.
larry said …. Can a by-law really stop Meeting Notices and Minutes from being uploaded by owners to a community page?
Only if ≥75% of Owners present both personally and by proxy at the May AGM vote for it, and don’t place restrictions of the E/C’s future activities to prevent further such frivolous expenditures!
So you have about a month to rally support from all those Owners who are happy with the status quo.
tim76 said: Do we wait till we get taken to NCAT and present our case of why we want to keep the plants (privacy, noise, shading) and hope that the tribunal is sympathetic or will they just slap us with a $550 fine? (we are in NSW).
YES wait – and remember that fines, even for matters of much greater significance than yours, are as scarce as the proverbial hen’s teeth, and that depending upon the height of your plantings relative to the stratum of your lot (which varies from one Plan to another) the NCAT would give favourable consideration to Memorandum No AG520000 issued by NSW Land & Property Information to the effect that the costs of trimming/lopping plantings with a height in excess of the stratum of the lot is the responsibility of the O/C, and with only the responsibility for then maintaining that trimmed height being with the lot owner.
The Owner/landlords have recourse to their Owners Corporation and Strata Manager (who works for all Owners), and Tenants (in NSW) have recourse to Tenants NSW.
jezzie – please follow Jimmy’s advice!
With regard to the Applications for Mediation (HERE) and Adjudication (HERE), neither is particularly onerous in terms of completion or of the information required, so if your Strata Manager can’t do that expeditiously (with the assistance of the E/C), then given the urgency do that yourself!
In answer to your questions, if your O/C was to “let it go through with only a SBL”, although I don’t know why it would do that given the information that you’ve provided, the wording of the document could very easily make it specific to the lot in question.
With regard to penalties, I would have thought that the issuing of Orders requiring the Proprietor to at their cost return the common property to its original state and the imposing of monetary penalties if they don’t do it within the prescribed timeframe, or a delayed sale and/or the Vendor having to adjust their sale price (↓) to allow the Purchaser the costs of making those changes would each be a sufficient disincentive.
Note also that if your Plan’s E/C doesn’t make a decision on how to address the “renovator’s” SBL within 2 months of receiving the draft, then under the provisions of Sect 138(2) they can themselves seek Orders to have a NCAT Adjudicator settle the matter, and goodness knows how that may go!
Good luck with it all!