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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.
apples45 – it is generally accepted, and apparently confirmed by your own research that power outlets within lots, safety switches on power boards within lots, and hard-wired smoke alarms with lots (that are not connected to a central control board on common property) are all the responsibility of lot owners.
In that circumstance Sect 63 (4) of the NSW Strata Schemes Management Act (1996) could be used as the basis for your Owners Corporation (O/C) to recover from lot owner/s its costs to carry out works that would otherwise be the “duty” of those owner/s.
The only “hitch” in applying that provision literally to your situation is that the Fire Order requires the O/C and not the lot owner/s to comply, although I’d interpret that more generally as the Order requiring the O/C to ensure that required works are completed and certified as compliant.
Nonetheless, and particularly as none of your owners responded to the earlier letter and I interpret from your posts that all works have been completed (?), I agree with that part of larry’s advice (post #4) about putting the whole thing before owners at the next General Meeting, possibly including an option that the O/C pays and reimburses those owner/s who have already made certified changes to their lots.
Not so sure about legal opinions in this case though; give “strata democracy” a chance!
Whatever the outcome, remember that whilst your Strata Manager may offer advice and opinions (albethey conflicting) there are no “battles”, as he’s required to act in accordance with the directions of his client (the O/C) provided those are in compliance with the Act.
Whilst compliance with a Fire Order is the responsibility of the Owners Corporation, there’s no impedement to it seeking a reimbursement of any component of its total costs that involved consequent works on lot owners’ property.
So the Strata Manager’s original advice was correct, although it now seems that he’s confusing responsibilty for compliance with responsibility for payment.
Whilst the amount of owners’ reimbursements cannot be added to their respective levies as they were determined / set at the most recent AGM, they can be added as a separate line-item on the next contributions invoice/s.
Jef, Boronia et al – in defence of the Sydney Water Corporation and other Water Utilities, they’re both infrastructure operators / maintainers and water product retailers, and the Act that governs their operation doesn’t permit them to invoice ‘users’ of their water product because there are still operations and maintenance (service availability) based components of their charging regime that remain the responsibility of the property owner.
In this circumstance, Water Utilities could read the individual meters fitted to lots in new strata developments, but unlike Gas and Electricity Retailers, they have no way of knowing which lots are from time-to-time owner-occupied and which are tenanted, and therefore have no ability to apportion their invoices so that owners receive only the service availability charges (for water, sewerage, and stormwater) and tenants receive only their water consumption charge.
In circumstances where water meters are installed to lots retrospectively, an additional complication arises as those are recording water usage that’s already been recorded on the main meter to the property, and that has the propensity for the duplication of invoices between the owners/occupants of those lots and the owners corporstion for the common property.
Anything’s possible though including the remote recording mentioned by CBF in the case of gas usage, and even having combined meter reading contracts based upon the numbers of meters accurately read, so that one person visits the sites to read ALL meters installed there irrespective of what perochial retailers own them.
William & Mark – here’s how I’d approach your very similar and unavoidably “messy” situations:
1) Irrespective of how the spalling occurred, and not withstanding the excellent description of the magnesite inter-reaction in post #5, the costs of repairs to all common property and for all associated works such as the removal of Owners’ fixtures and fittings and floor coverings is the responsibility of the Owners Corporation unless it has determined otherwise under the provisions of Sect 62(3) of the NSW Strata Schemes Management Act (1996) – where quite frankly I doubt that Cl.3(b) could be substantiated.
2) Individual Owners would be required to meet the costs of repairs to all areas that are part of their Lots (e.g. internal walls), and to re-install or renew their fixtures, fittings, and floor coverings.
3) The Owners Corporation (O/C) should meet the costs of a professional assessment to determine a cumulative present value for each Owner’s fixtures, fittings, and floor coverings that need to be removed in order for it to have repairs made to its common property, and pay that amount to those Owners as a contribution to the costs of re-installation or replacement of those items by them.
There are some additional factors including whether or not individual Owner’s floor coverings (e.g. carpets & tiles) are those originally installed when the building was completed, in which case replacement is the O/C’s responsibility, and whether the O/C should meet the costs of reinstalling existing fixtures and fittings where that’s possible and of new underlay (to replace the magnesite), but these and some others that I haven’t discussed are all unnecessary complications in my opinion that would definitely impede a sensible outcome.
Again in my opinion, IF possible it would be time and cost-effective for the O/C’s contractors to quote for and undertake all components of the works (e.g. repairs and re-installations / renewals), and to split their invoices between it and the individual Owners.
Finally, have your respective O/Cs considered borrowing the funds in circumstances where the Sinking Fund is deficient, and Mark, did you obtain a building inspection of your (then) potential purchase prior to the auction?
Tony – I’d be interested to know under what authority the CME operates, as amongst other things I can’t for the life of me understand how it could require Owners to submit DAs; that’s the purview Council.
I think it’s about time for you to seek some expert legal advice, such as that from one of FlatChat’s sponsors Makinson & d’Apice.
Good luck with everything!
Strata Insurance Policies, and particularly those arranged by Strata Manager / Commission Agents, seem to routinely include a whole lot of optional policies for risks that some Owners Corporations aren’t exposed to at all, or where on the basis of a risk assessment, exposure is minimal.
HERE is an example.
Owners Corporations really need to undertake that risk assessment and then shop-around before considering that AGM Item about routinely renewing their mandatory Strata Insurance Policy.
DD – that option covers your Owners Corporation’s (O/C) costs of professional services such as those provided by a accountant if it is audited by the ATO or some other Government Instrumentality.
There have been a few recent posts about the costs of Strata Insurance, and yours is an example of whether an O/C that’s covered by the “Principle of Mutuality”, where the ATO has ruled that no tax is payable because its only income comprises owners’ contributions to funds (admin and sinking) that are then controlled by it for the purpose of managing and maintaining the Plan, could reduce its Insurance Premium by opting-out of that and indeed any other optional cover/s that it simply doesn’t need.
Tony – a recent post by SMO revealed that under the provisions of Sect 138 an Adjudicator can make Orders to settle disputes such as yours in circumstances where an Owners Corporation or Building Management Committee decides either to not make a decision, or if within a period of 2 months (from its receipt of an application such as yours) it doesn’t make a decision.
Must say… I can’t understand why Council would require a DA for an awning – one of your earlier posts suggested that was the O/C’s requirement, so who’s now advising you of that; the O/C or the Council?
IF a DA’s required, Council wouldn’t consider it unless the O/C’s Seal had been placed on your submitted plans, and that wouldn’t be in place unless the O/C’s consent had been given. Whether that consent would require a Special Resolution (75%) for changes / alterations / additions to the Common Property would depend upon whether or not an already registered Special By-Law of relevance exists (i.e. to shutter proposals).
I’m also unsure of how enforceable those architectural and landscape standards would be; if they’re not in the form of a Special By-Law or something that you legally agreed to at the time of your purchase, I doubt they would be.
Apologies in advance if I’m now about to further confuse the issue, but perhaps you should just wait patiently for the prescribed 2 months, and if your O/C is again unable to advise you either way, then it’s Orders under S138 that you should be seeking.
It’s this sort of nonsense that turns people away from Strata Living, and/or encourages them to simply ignore the BS and chest-beating that’s proffered by some E/C’s and to just do as they please and rely upon the NCAT’s process to see everything so delayed that one of the protagonists gives up!
It’s not a fortune, and by “communications” your Strata Manager probably means Levy Contributions Invoices, Meeting Agendas, Minutes, as well as Correspondence.
Frankly, I’d be lost without electronic communications with my fellow Owners, all except 4 of whom (≈10%) not only accept that, but now use the imbedded links on our paperless Levy Contributions Invoices to make their payments by EFT and Credit/Debit Card (thanks to PayPal ®); great for cash-flow.
Janice, I strongly urge those of you who don’t have an e-mail address to bite the virtual bullet, as it’s a superb means to facilitate communications and feedback with/between Owners; something that’s essential in my opinion for the achievement of a well run and harmoniously inclusive Strata Plan.
Costa – thanks for the feedback; always good to receive by all on this Forum!
I assume that you’re not the only Owner who made the E/C aware of what’s needed to properly consider their proposal, but irrespective, the Members’ reaction indicates that you’ve rattled their cage; which is what was needed.
Depending upon the level of their victimisation and harassment, I suppose you could resort to legal action or at least a legal letter, but frankly I’d just be biding my time until next month’s AGM when you and like minded Owners can have a say and ensure that it’s properly minuted.
Between now and then, you must do your utmost to ensure that those Owners who you previously stated don’t trust the E/C grow a spine, and maintain that so they can support the collective position.
Thanks Millie – I missed that subtlety, but if the payment issue with respect to the Strata Manager is ignored, I believe that the remainder of my commentary is valid and particularly so with seeking Orders under Sect 154.
If the 28 day window for seeking those Orders hasn’t passed, it seems to me that the Chair and/or Secretary of your Executive Committee would be hard-pressed to disprove any assertion that you and others were improperly denied a vote on the motion/s.
I don’t think it’s as straight forward as that.
By-Laws apply to owners and occupants, and Owners Corporations are held responsible to properly manage and maintain their Common Property (like entry doors), so what came first in terms of the entry door slamming, the chicken or the egg?
Is it that the door cannot be closed quietly, or is it that “owners and occupants” of the building are allowing it to slam and to thereby interfere with Matt’s peaceful enjoyment?
So rather than pursuing a possibly fruitless route down the mediation path, I’m inclined to KWP’s suggestion – so try contacting your Property Manager (Rental Agent) in the first instance so that they can make the Owner / Landlord aware of the problem and who/what’s causing it (if you can name names), and so that they can follow-up with their Owners Corporation.
OK, so that route may be longer, but at least it may lead you to a solution.
The advice provided by the Office of Fair Trading is correct, probably because the Minutes can usually be read in conjunction with the Agenda – although I would have thought that any Strata Manager worth the money the Owners Corporation pays to them would make the extra effort to cut-and-paste the Agenda Items into the Minutes document.
I don’t understand why so many posts to FlatChat speak to Strata Managers doing as they choose, and with those Owners present at a General Meeting (in your example) permitting them to do so; talk about the tail wagging the dog!
But now that the tail’s been wagged…. on the assumption that the “large majority” that voted down the block of Motions represented more than 50% or 75% as the case may be of those Owners entitled to vote, all that you and like-minded Owners can practically do is to write to the Strata Manager to express your collective dissatisfaction, and to vote against accepting the Minutes at the next General Meeting.
A somewhat impractical option may be to apply for Orders to invalidate the vote/s taken at the General Meeting under Sect 153 or 154; depending of course on the size of that “large majority”.
PS – just had a further thought. An Application for Orders may just get-up, as from what you’ve said the Strata Manager would be unable to emphatically state what the votes for and against the Motions were. (1635hrs)