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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!
jezzie – the very first thing that your Owners Corporation (O/C) needs to do, like right now, is write to the Auction Agent to formally advise that alterations to both the lot and to the common property (include known details) have been undertaken by the current Proprietor without the prior consent of the O/C, that the matter is currently before the NSW Administrative and Appeals Tribunal (NCAT), and that unless an appropriate Special By-Law is Registered prior to settlement then the O/C requires any future Proprietor to at their expense to restore the common property to its pre-renovation state.
You may want to obtain some legal assistance with the drafting of the above; perhaps have your E/C Secretary or Strata Manager contact one of FlatChat’s sponsors HERE.
If the applications for mediation and adjudication have been submitted to the NCAT (of which the former CTTT is a part), then I’d let those take their course whilst whatever it is that the renovating Proprietors have proposed in their draft Special By-Law is being given careful consideration by the Executive Committee and the Strata Manager.
Clearly I’m unaware of what Special By-Laws are already in place at your Plan or what it is that these Proprietors have drafted, but I’ll assume that no Special By-Law of relevance is in place, and that as the first thing that the “renovators” need to do is to write to the O/C formally agreeing to be responsible for the ongoing maintenance of everything that they’ve renovated and/or changed and/or added to, I’m wondering if it’s that letter that you’re referring to (?).
If it is, once that letter is received by the O/C an appropriate Special By-Law (SBL) can be drafted to incorporate that provision and anything else that the O/C determines, such as the “renovators” payment for the costs of the necessary General Meeting to consider and vote on the SBL, for the drafting and Registration of the SBL, and perhaps an annual payment to the O/C by the current and all future Proprietors of the lot to account for any increased value due to the renovations and common property changes that aren’t reflected in its current units of entitlement / levies.
It’s extremely important for the SBL to be properly drafted, as once done it can’t be undone without the written consent of the then Proprietor of the lot, and YES it needs to be worded to apply to all future Proprietors to avoid the O/C becoming responsible for everything renovated post the upcoming Auction.
That’s why in order to be legal any SBL needs to be consented to by ≥75% of Proprietors present both personally and by proxy at a General Meeting, with that percentage being determined from the units of entitlement (UOE) of those voting and the aggregate UOE for the Strata Plan, and be Registered on the Strata Title by NSW Land & Property Information (inc. the former Land Titles Office).
So as you’ll see, there are quite a few hoops for these “renovators” and the O/C to jump through – and that’s why that advice to the Auction Agent needs to be provided quickly.
Kathsoo – all that’s substantially correct, but as neither your Executive Committee (E/C) nor Strata Manager appear to be doing anything about your neighbour’s renovations and his changes to the Common Property, you need to personally:
1) apply for mediation of the issues HERE
2) apply for adjudication under Clause 138 HERE; and,
3) seek interim orders for the neighbour’s works to be immediately stopped HERE making sure that you attach copies of minutes outlining what the E/C did approve, and why you believe the interim orders are urgent!
Note that the application for interim orders needs to be lodged concurrently with those for mediation and adjudication (e.g. in the same envelope), as in that way those orders can be served on your neighbour immediately to stop his renovation activities, thus allowing the mediation and adjudication processes to take their sweet time while you seek the active support of any other owners who feel as you do!
If in doubt, contact the New South Wales Civil and Administrative Tribunal on 1300 006 228 – tell them that you want to lodge an Application for Interim Orders, why, and why that’s urgent.