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I don’t know about insightful, but I was trying to suggest a simple and hopefully acceptable (to both sides) approach to a situation that’s actually quite complex.
To elaborate just a little, in the absence of a Special Resolution of the O/C that removes its responsibility to maintain the affected sections of its Common Property or a Registered Special By-Law that subsequent to the O/C’s consent to works of the types involved can transfer that responsibility to the respective Owners, under Sect 62 of the SCMA the O/C has an unfettered responsibility to “…properly maintain and keep in a state of good and serviceable repair the common property..”.
Other complications that I didn’t mention in my original reply include whether or not the O/C could have been reasonably aware that the works were being undertaken and therefore could/should have intervened, if any of the current Owners are the ones who actually undertook the works and would therefore be absolutely aware, whether the living space of the affected Units could have increased their “value” and therefore their units of entitlement (and levies paid), and if the enclosed balcony areas to which you referred were also the subject of un-consented changes to Common Property.
On that last matter, it’s the Strata Title Plan that determines the boundaries of the Common Property not peoples’ “suggestions”, so unless that Plan’s been amended after a re-survey and re-valuation of the Lots, then what was originally registered stands.
As was recently commented in FlatChat, nothing’s out-of-bounds in Strata until somebody complains, so depending upon the relevance of those items mentioned above, there’s absolutely no reason for you and other like-minded Owners not to adopt a shock and awe approach by amending item 2 of my draft Motion to the extent that the O/C will undertake and meet the cost of the works now required to return its Common Property to its as-built / compliant state, and that the 7 Owners will reimburse all those costs.
I guess it all comes down to the cost of the works, and how hard you and the other Owners want to push.
Over it —- I agree with KWP’s comments, but in NSW what your Strata Manager has done is only legal if the functions of the Executive Committee Secretary have been delegated to them in the Strata Management Agency Agreement that they hold with the Owners Corporation.
You need to check that.
Remember also that in NSW that Agreement can only be terminated without the prescribed notice (usually 3 months prior to its expiry date) by the mutual agreement of the parties as resolved by way of a simple majority vote taken at General Meeting of the Owners Corporation, and that votes on that Motion by proxy must include the proxy-givers’ specific instructions as opposed to the usual authority for the proxy-holder to simply vote on all Motions as they see fit.
Your first action should be to confirm that the works actually were done without the consent of the Owners Corporation, and that there’s nothing documented about the responsibility for the costs of on-going and repairs and maintenance of those areas.
If as you suspect the works weren’t consented, despite the fact that the 7 Owners concerned have therefore breached Sect 65A of the NSW Strata Schemes Management Act, I’m afraid that as the illegal works involved were to Common Property, it’s the Owners Corporation’s (O/C) responsibility to rectify the situation to the extent necessary to now return that Common Property to its as-built state whilst concurrently ensuring compliance with Fire Control Requirements.
In my opinion matters such as this are best managed by a united approach by you and as many of the other 29 Owners that you can convince to become actively involved in the upcoming General Meeting, and by letting your Committee Members know that you want the matters more widely discussed, and properly resolved by all Owners (i.e. the Owners Corporation).
Before you do anything else, you need to write to the Secretary of your Executive Committee seeking confirmation that the works by those 7 Owners was not then consented by the Owners Corporation in accordance with Sect 65A of the Act, and that unless the currently approved budget for your Plan has an allocation for an item that could come under the umbrella of “consultants” activities, then it should have been approved by the Owners Corporation at the General Meeting and not by the Members of the Executive Committee.
Concurrently advise that you will be submitting Motions (unspecified) for the Agenda of the General Meeting, and ascertain the final date for those Motions to be submitted.
Then whilst (hopefully) you have the Committee Members’ attention, quickly draft something that’s at least in content similar to the following, and use them to obtain feedback and to elicit support by way of personal attendance at the General Meeting or by proxies in your favour from as many of the other 29 Owners as you can:
THAT information on the matter of activities on Common Property by consultants, its purpose, the process of its approval, expenditure to date, any further expenditure anticipated, and whatever reports it generated be provided with the Agenda and that a process for notifying and approving such expenditures be resolved.
Depending upon your Secretary’s response and the degree of commitment by the other 29 Owners, you and the others may want to use this to at least get the facts on the table, to possibly sanction the Committee, to get a better process in place, and to possibly “shift” some of the consultant’s costs to those Owners who stand to benefit most from their activities (see item 2 below). Then…….
THAT as all changes to the Common Property of the Plan involving Lots ******* which have made those areas non-compliant with relevant Fire Control requirements, where one is the subject of an Order by ******, were undertaken on the Common Property by the then Owners of those Lots without the required consent of the Owners Corporation and therefore in breach of Sect 65A of the NSW Strata Schemes Management Act (1996), that:
- The Owners Corporation complies with its obligation to undertake at its cost all works necessary to return the affected areas to their original state, incorporating anything further that’s now specifically required to meet Fire Control requirements; and
- The Owners of Lots ******* will reimburse to the Owners Corporation the costs for any and all additional components of those works including for (those palatable) design costs that are required by them for any reasons, including to maintain or improve the amenity of their respective Lots; and
- That once completed, the on-going maintenance, repair, and replacement of any additional components of the works will be the responsibility from time-to-time of the Owners of the respective Lots.
This isn’t a shock-and-awe approach, but you and the others could use it to ensure that the O/C completes only those works that it’s required to by restoring its Common Property to its as-built state after allowing for anything additional now required under today’s Fire Control Standards, by ensuring that the 7 Owners pay for whatever’s additionally required by them to make the restoration works “palatable”, and that they pay for the on-going maintenance etc of those works that they want (but aren’t required).
Once you have sufficient support, or even if you don’t, then submit your Motions in final form to the Secretary in time for its inclusion on the Agenda and keep up the good fight!
I’ve been ambivalent on the subject of short-term and holiday lettings, but after the experience of the last two (2) weeks where three (3) additional Units in our Plan have been refurbished and for the first time made available for that type of residency, I’m having second thoughts.
In the case of our Plan that brings the total of short-term / holiday rental Units to only eight (8) of our twenty-seven (27), but the comparatively high daily rental rates invariably leads to cost-sharing of Units by a couple of families and to consequent problems with their additional vehicles and boats being illegally parked, including within traffic corridors in the carpark, the improper use of the security access system (as two families are sharing one Unit), the improper use of communal facilities, overloading of our normally adequate garbage facilities, and general issues of poor behaviour and a total lack of consideration for our permanent residents.
A sufficient number of our Owners have this morning sent me a petition to convene a General Meeting to consider either the making of a Special By-Law to prevent short term / holiday rentals, or to charge the Owners of the eight (8) Units and additional fee to cover the Owners Corporation’s additional costs arising from their residents’ (miss) use of the Common Property.
I advised them to include the “or” option as depending upon how Sect 49(1) of the NSW Strata Schemes Management Act is punctuated by the reader, and whether a short-term “permission to occupy” is the same as a lease under a Residential Tenancy Agreement, their preferred option may be considered a restriction on Owners leasing their properties.
If only the equivalent Sect of the proposed NSW legislation was to omit to word “restrict”! That would in my opinion resolve all the issues discussed in this topic, and yet enable Owners to still lease and derive an income from their Units under the provisions of the NSW Residential Tenancies Act – that is for >3 months and on a Lease.
By the way and whilst I haven’t personally verified it, the petitioners claim that one of their number contacted the Managing Agents and five (5) Owners of the Units involved, with no meaningful responses and with one Agent who manages three (3) of those reportedly claiming no knowledge of the industry’s selectively publicised Code-of-Practice for Short Term Rentals.
I don’t know about a (NSW) Residential Tenancy Agreement giving tenants “rights” to anything other than the area covered by the Lot that they’re occupying, or that any additional clause could be incorporated in that document without the tenant’s agreement, but it’s generally (and perhaps legally) accepted that common property is for the use of residents and their guests.
Surely it wouldn’t be too hard for you to become the “guest” of your tenant or of another resident on occasions such as the recent fireworks; or did someone perhaps raise this as an issue last Tuesday?
Why?
Well it’s always sounded a like a bit of a stretch to me, but as the common property is considered a workplace when maintenance people and others are on-site, the situation is covered by Sect 10 of the NSW Workplace Surveillance Act (2005).
I have complied with respect to our Strata Plan by placing a CCTV symbol and a prominent notification at the bottom of all Work Orders which are always issued 14 days in advance; no repercussions so far!
One further point that may well be a furphy, is that the placement of those “property under surveillance” signs around the common property could lead to legal consequences for the O/C if residents then rely upon those for their personal well-being and for that of their personal property, and then find that when the worse happens – there is no surveillance.
Just putting it out there!
I assume that you’re referring to a satellite dish, which unless it’s one of those privately installed monstrosities that provides access to international transmissions, likely belongs to Foxtel, Telstra, or Optus.
In that case it’s usual for those companies (3) to initially obtain an Installation Agreement for the property signed by the Secretary of the Executive Committee (E/C) or the Plan’s Strata Manager, which subject to the conditions of that document, permits the company to then place their equipment including satellite dishes, cabling, and conduit on the Common Property on an on-going basis.
All equipment installed by the three (3) major providers remains theirs, and as that includes the satellite dish there’s no issues with the Owners Corporation (O/C) becoming responsible for any maintenance or repairs, and in fact these companies will remove their satellite dishes if requested to do so by an O/C.
If you’re still concerned about the installation OR if it’s indeed one of those designed for international reception, the installer may have made contact with the E/C or Strata Manager prior to the installation if that’s necessary to access the property, so you could in the first instance contact either of those to ascertain if any Installation Agreement exists and/or if contact was recently made, and to which Unit it related.
If all of the above draws a blank and you or your E/C still have legitimate concerns, the Strata Manager could be instructed to letterbox-drop all residents requesting those receiving satellite television programs to contact them within a reasonable timeframe to enable records to be updated (or some for other plausible reason), together with an advice that any unreported satellite dishes will be removed from the common property by the O/C.
Whether removal is actually implemented would depend upon the response, but that’s a little extreme unless justified by the nature of the installation (e.g. shoddy or unsightly).
Your Managing (Rental) Agent should have an after-hours contact for emergencies, so I’d suggest that you and the other renters each try that means to advise your respective Agents of the situation, and insist that they or their Clients (your landlord/s) make the necessary arrangements with their building’s Strata Manager.
In the meantime, have a look at this Fact Sheet provided by Tenants NSW, of course bearing in mind that in your situation the hotwater service is communal and therefore the responsibility of the Owners Corporation for your building and not personally the individual Owner / Landlords.
If in any doubt, contact your closest Tenants NSW Office directly by searching HERE – and be thankful that it’s summer where those cold showers are at least tolerable.
Luke – as always, it depends.
If the pipe was within or on Common Property but it served only your Lot, then its repair and the rectification of any damage caused by its failure are both your responsibility, with the location of the problem section of pipework and the rectification of any damage to the Lot being claimable by you on your contents insurance.
However if the pipe served multiple Lots then its repair and the rectification of any damage that may be caused during that (repair) activity, but not by the burst pipe itself, are both the responsibility of the Owners Corporation (O/C). Similarly your Plan’s building insurance would, if your O/C chooses to claim, cover the costs of locating the problem section of pipework and the rectification of any damage that the burst pipe caused to Common Property.
As for the O/C checking the integrity of its pipework, whilst that can be done the precise identification weak / leakage points is marginal, and is in my opinion beyond what could reasonably be expected and above what’s required of an O/C under Sect 62 of the NSW Strata Schemes Management Act (1996).
Fred – the Clause to which you refer relates only to voting by the Developer/s or whoever it was that owned the entire property immediately prior to its registration as a Strata Titled Scheme.
If that’s the person that your post refers to, then clause 18 (3) applies as does the SCMA to all Strata Plans then registered (in 1996).
Stumped said: …. Do I need to have paid a deposit before I’m allowed to inspect the records, or can I just make an appointment with the Strata Manager to look at the property’s records?
In NSW it’s normally the case that the Owner or Agent has information on the amount of the Strata Levies, Council, and Water Rates with the Vendor’s Contract of Sale for the property.
If you’re interested in purchasing the property you pay 0.25% of the sale price as a deposit to the Owner or their Agent and sign the Contract of Sale, after which you then have 5 business days to conduct all your inquiries, including a search of the Owners Corporation’s records by the process that Jimmy advised, after which time you either pay the remainder of the deposit (9.75%) and exchange Contracts (of Sale) with the Vendor or pull-out; and in the latter case forfeit your 0.25% deposit.
You haven’t said what State/Territory you’re in, but in NSW and I imagine elsewhere either the local Councils outsource the garbage collection services that they’re responsible for, or in some instances individual undertakings such as industrial, commercial, and strata operators directly procure those services by way of a contract.
As your post refers to “my Owners Corporation” I’ll assume that you’re an Owner, in which case it would be best for you to contact the Secretary of your Executive Committee or your Strata Manager in the first instance with a request that they contact their service provider (Council or Contractor) about the supply of a different type of bin.
It’s likely that the noise is also affecting other Owners, so perhaps speak to some of those about supporting your request; the more support the better!
Fiona – totally agree with Jimmy’s suggested approach, but should advise that whether or not your Owners Corporation (O/C) formally adopted the “Model By-Laws” (i.e. those in Schedule 1 to the Strata Schemes Management Act) in 2006, that Act was commenced 1996 and so those are mandatory for your Plan whether the O/C likes it or not.
Further, the verbal agreement between Units 1 & 3 is of no consequence as Sect 65(B) of the Act applies here.
Finally, I’m not suggesting a “shock and awe” approach, just providing some information to assist you in the negotiations.
Are you referring to a strata titled property or to a free-standing (torrens title) home.
Daphne – each income and expenditure statement is relative to the approved budget for each Fund (Admin and Sinking), so irrespective of whether they’re complex or simple one page documents any variance (over or under) will still be identified at the proverbial bottom-line.
As for your Owners Corporation (O/C) borrowing from its Sinking Fund in order to make payments that should otherwise have been made from its Administrative Fund, under Sect 71(3) of the NSW Strata Schemes Management Act it (the O/C) had 3 months from the date of the initial transfer to determine how the borrowed funds will be re-paid and over what timeframe.
The S109 Certificate that you requested relates only to financial and other matters to do with your Lot, not the the O/C as a whole, and an Audit only looks at how the financial records have been kept and how income’s raised and payments made.
So as for what you and other Owners should do about the current situation.
It’s too often the case that despite the efforts of (some) Strata Managers to have levy contributions set at levels sufficient to meet anticipated expenses, (some) Owners never want to pay any more than they have to, consequently get themselves into the situation that you describe, eventually find themselves with insufficient funds to properly manage their Plan, and then have to borrow (sound familiar!).
One option is to elect a new Government, sorry Executive Committee, who’s prepared to push-through the necessary levy increases, and another is to do what Jimmy suggested (post #2) and seek Orders to compulsorily vary the amount of your O/C’s levy contributions under Sect 149 of that Act.