Forum Replies Created
-
Replies
-
The matter of the easement is a complication that is perhaps best left aside, unless after reading what follows you decide to provide some additional information of relevance, such as whether or not the easement’s Registered on your Plan’s Strata Title, because in general terms unless the easement is for a right of way (such as to another property), then the beneficiary of it is not required to maintain it or anything on it (such as a tree) to any degree that exceeds their own requirements.
So the next matter is whether or not the tree is on common property, where the owners corporation is responsible to maintain both it, and the retaining wall that was damaged because of it.
If the tree is not on common property and is instead within the lot owner’s property, then they are responsible to maintain both it and the retaining wall that it damaged, subject to yet further complications.
The first arises from the fact that each duplex in your Plan will incorporate “cubic air space” that will be shown on the Strata Title Plan as the stratum of the lot, and be expressed as a number of metres horizontally above and below a reference point such as the top of the raft slab of its ground floor. So if the tree is entirely within the lot’s stratum, then as stated the owner is required to maintain it etc., but if it’s a large tree that canopy is above the upper level of the lot’s stratum, then the lot owner and the O/C are proportionality responsible for the cost of repairs.
As a simple example where the upper level of the lot’s stratum is shown as 3 metres above the reference point, and a horizontal projection of that to a 6 metre high tree shows that around 2 metres of its canopy extends above that level, then the lot owner would contribute 2/3 of the costs and the O/C the remaining 1/3.
The last complication arises if the tree or part of it fell and/or damaged the retaining during a storm or a similar “event”, in which case the responsible party could lodge an insurance claim for the cost of repairs against their building insurance.
That’s about it; you did say that it was interesting!!
Kenny – I’ll jump in early on this one as our owners corporation had a very similar problem around 12 months ago, where I (as Secretary) was asked by a tenant to have a look at some bubbling paint on an internal wall of her unit.
As I had previously seen the identical problem in other units, a cursory examination was all that was necessary to determine that the problem was due to a leak from the vertical section of the water supply pipe feeding the outlet in the shower recess.
Whilst the leakage was within an internal wall and rectification was therefore the owner’s responsibility, it had been left unattended for so long that the water had migrated to an external wall, and that made rectification the responsibility of the owners corporation (O/C).
Just as in your situation, the tenant told me that she had reported the problem to her property manager, once verbally around 6 months prior and on a second occasion in writing prior to the last routine inspection of her unit just one month earlier.
On the basis of past experience with property managers, I’d determined that as they generally have difficulty justifying their fees to investor clients, they often rely on a statements to the effect that a whole financial year had passed without a single expense.
Which doesn’t mean that no expense to address maintenance or repairs was necessary, but rather that none had been attended to!
Anyway, as I’ve learnt not to deal directly with property managers when I have my “owners corporation” hat on, with the permission of the tenant I took some pictures of the damage, which by the way included to the kick-plates of the kitchen cupboards, and sent those together with an e-mail to the lot owner containing further advice to the effect that in addition to making repairs to the plumbing, the internal wall, and kitchen of his unit, he would also be required to pay for the repairs to the common property that arose from delays in him, via his “agent”, rectifying the source of the water leakage.
The lot owner promptly contacted me to advise that the O/C’s e-mail advice of the problem was the first he’d received, and I believe that as I shortly thereafter received a phone call from his property manager who, after being berated by her client (the lot owner), did her utmost to then by various accusations cover her backside with mine; unsuccessfully!
All necessary repairs including those to the common property were attended to in short-order, and whilst I wasn’t privy to who paid for what, I do know that the O/C paid for nothing, and that whilst the lot owner told me that he was intending to change to a different property management agency, in the end he didn’t (?).
So back to your questions, as the circumstance of the property manager being formally advised of the fault, presumably in your case not advising their client / lot owner, and certainly not advising the O/C or its strata manager resulted more damage and in increased costs of rectification, I think your O/C should do as ours did by immediately writing to the lot owner to explain the situation, and to advise that the O/C will be consequently invoicing a percentage of its costs of rectification to them.
As to what that percentage should be and how it should be invoiced, I’d suggest that your O/C seeks to make a defensible calculation of the marginal costs of repairs, ideally based on an assessment from its chosen contractor and substantiated by a statement from the tenant or at least a contemporaneous note by you about when and how they first provided advice of the problem to their property manager, with the amount of that calculation being then invoiced as a separate line item on the owner’s next contributions invoice (levies).
In that way the invoiced amount is at arms-length from the property manager so that any discussions about how it arose is between them and their client (the lot owner) and it would, if unpaid, remain as a debt against the lot and be recoverable, together with interest, whenever the lot changes ownership.
As much as I dislike the phrase, yours actually is “a matter of principle” and is certainly one where all O/Cs need to send a clear message that all owners, absent or otherwise, need to promptly attend to maintenance issues and, where any doubt exists about who’s responsible for the repairs, to notify the O/C and thereby give it the opportunity to decide upon that.
Assuming your Plan’s in NSW and no contributory negligence on the part of the Owners Corporation, then it’s responsible for rectifying the sewerage blockage downstream of your unit’s overflow gully together with any damage that’s consequently caused to other areas whilst it’s doing that (including to your unit), so save any ex-gratia payment that the O/C may make to you, you’re responsible for rectifying the damage to your unit via your contents insurance or otherwise.
bernie – on the assumption that the Plan’s in NSW, then on the basis of your description it’s very likely that the originally installed planter boxes at each lot are indeed common property. You could of course check the Strata Title Plan as there may be a notation about the planter boxes, or if you’re lucky they may actually be depicted there.
In any event, it may assist with current and future negotiations with lot owners for the matter to be resolved at the next General Meeting, because under Sect 65A of the NSW Strata Schemes Management Act (1996) any change to the common property, particularly those involving physical works, should be decided by way of a vote on a special resolution at that forum, together with who it is that will be responsible for future maintenance/repairs.
back in post #2 PeterC said….”usually, there is no obligation to upgrade anything to current building standards if maintenance or repair is not needed. IE if something still meets the standard that it met when installed you don’t need to do anything. If you were to do new work, the new work would have to meet current standards.”
Peter’s correct, and even though the original electrical wiring is in the common property (ceiling) and is therefore the responsibility of the Owners Corporation (O/C), it doesn’t need to be compliant with current Building Codes provided it doesn’t present a hazard in its as-built form.
Of course the new owners of the lot may at their discretion seek the O/C’s consent to themselves alter any wiring for which it (the O/C) would otherwise be responsible, including within a roof-void or a common (perimeter) wall, where such consent would be routinely granted provided the lot owners engage properly licensed and insured tradespeople, and agree in writing to accept responsibility for the on-going maintenance and repair of all altered / renewed sections.
If I’m any judge, the new owners won’t be so keen to achieve compliance with current Building Codes if they have to pay for that!
deliria1 – to be honest I’m not so sure about the entirety of your quote; what is its source?
What I AM aware of is that if, within two (2) years of the conclusion of a staged strata development, an Owners Corporation considers that all or some of its Scheme’s units of entitlement (UOE) don’t accurately reflect the market value of lot/s, and that’s substantiated by Certificate from a Registered Valuer, then the O/C may resolve by way of a special resolution at a General Meeting to submit a Schedule setting out revised UOEs and the Certificate directly to NSW Land & Property Information (L&PI) who will then make the amendments shown on the Strata Title.
Perhaps contact L&PI directly on (02) 9228 6666; I’ve always found them to be very helpful and forthcoming with accurate advice.
woodg62 – actually it’s the individual owners with a strata scheme who are responsible for the identification of the problem (of loose-fill asbestos), and as kaindib mentioned in post #2, the NSW Government offers free testing and other services for property owners in specific local government areas.
As there may be significant impacts upon other owners in your scheme, I’d recommend that you initially write to the secretary of your executive committee with a copy to your strata manager, advising them of the potential problem and of the possible impacts upon other owners and the owners corporation if testing is positive.
Then contact the the Loose–Fill Asbestos Implementation Taskforce by phone on (02)9895 0785 (direct line) about registering for their program, which by the way ceases taking applications in August 2016; so don’t delay!!
Winston – in response to your questions, a closer examination of Sect 31 of the Regulation will reveal that the “2m or more above” criterion applies to either the “ground” or to “any external surface below” an opening window.
So in a circumstance where the external surface below a window opening is a balcony, then provided that surface is less than 2m below and any railing or balustrade fitted there is at least 1m high and has no gaps >12.5cm between or below its panels, and it has nothing on or near it that a child could use to climb to the top rail, then no child-proof locking device on such windows is required.
Have a look at this CHECK LIST
As for the quotation that your Strata Manager obtained, all I can say is that it’s consistent with the maxim that every time that a Government devises a new compliance procedure or funding arrangement, opportunists will always come out of the woodwork with a revenue creation scheme!
Further, don’t get hung-up on the 250N requirement, as it’s small in the physical scheme of things; you could bite with more force! Have a look at THESE documents, and you may well find that your building’s existing keyed window locks will comply, although I’m not too fussed about having keys.
HERE is a bit more reading (and viewing) from NSW Dept. Fair Trading who to its credit is doing a good job to put an end to contractors’ revenue creation schemes, and to the myth that owners corporations’ compliance before March 2018 will be a mammoth task.
So given the lead-time and all the information that’s out there already, I don’t think that the topic needs discussion at this weekend’s forum, but that’s up to Jimmy.
To conclude and slightly off-topic, but further on the subject of revenue creation schemes, have you heard the one currently on commercial radio where the script tells the tale of a strata scheme who engaged a consultant to assess its property’s railings / balustrades’ compliance building codes, who concluded that they simply must contact a contractor who could bring all those up compliance with the current code? Of course they don’t have to do any such thing unless all or a substantial part of a balustrade or railing is being replaced for other reasons; but it’s a good tale nonetheless.
Stewart – I edited your post to remove identifiers of you and your Plan.
So in response to that, in the first instance your block would not be exempt.
Secondly, the meat on the bones of Sect 64A is contained in Clause 31 of the Regulation, and if your block’s existing window locks don’t comply with that, then devices that do comply have to be in place before March 2018; so there’s no mad hurry.
Finally, your Owners Corporation doesn’t need to inform anyone after any necessary works have been completed — just to ensure that those are done in a way that complies fully with the Regulation as again explained HERE.
Costa – we had similar issues in our Plan, but due to ongoing legislative changes/additions, improved technologies, different acoustic and other materials, diverse residency profiles, and my opinion that Owners Corporations therefore need to avoid locking themselves into inflexible requirements enshrined in a special by-law, in this instance for the permitted hours of work related to impacts on residents / neighbours’ amenity, we drafted and Registered the following (extract) in 2009:
“Hours of work are subject to the requirements of any Government Department or Statutory Authority which takes precedence, and in the absence of the prior written consent to less stringent arrangements by nearby residents including at least those adjoining the Lot [a copy of which must be provided to the Owners Corporation (Secretary)], the works may only be undertaken between the hours of 0800hrs-1600hrs (i.e. 8 hours) Mondays to Fridays, between the hours of 0900-1500hrs (i.e. 6 hours) on Saturdays, and due to the acoustic peculiarities of the Plan in the context of the amenity and peaceful enjoyment needs of all its Residents, no impacting mechanical, pneumatic, rotary, or grinding tools and/or equipment such as but not limited to jackhammers, breakers, sanders, grinders, concrete cutters, tile saws, and percussion drills may be used except during the hours of 1000hrs-1400hrs (i.e. 4 hours) Mondays to Fridays. No work whatsoever is permitted on Sundays or on Public Holidays
Notwithstanding the above, works must not create any noise that causes discomfort or disturbance to, or any interference with the domestic activities of any resident of the Plan, behaving reasonably, where the Secretary of the Executive Committee of the Owners Corporation will mediate any disputes and where their decision will be binding upon the parties in dispute unless another decision is made under a superior law.”
By all means consult more broadly so that your Owners Corportion can as Jimmy said “get the numbers up” to then make its own decisions, but the above may help (and as I drafted it, there’s no copyright
).As inconvenient as it may be for the secretary to convene a general meeting in order to fill a casual vacancy on the executive committee (E/C), the salient and perhaps logical point is that given in Cl.2(b) [copied in Jimmy T’s post #4] where, as the appointment of the current E/C members was made by the owners corporation at a general meeting, the same procedure should occur to fill a casual vacancy.
This interpretation of the Act may allow kik11e and like-minded owners to challenge the “shock wave” appointment ideally, provided their collective units of entitlement is ≥25% of the plan’s aggregate, by requisitioning the secretary (or strata manager if so delegated) to convene an extraordinary general meeting in order conduct a proper election for a replacement E/C member.
With the benefit of hindsight it would have been better if the resigning member had sought to appoint another owner to “act” in their place at each meeting of the E/C until the date of the next annual general meeting.
An executive committee (E/C) vacancy that occurs in the circumstances described needs to be filled in accordance with a vote by the owners corporation – not by the remaining committee members.
So if the vote was as it seems by the E/C, then irrespective of how votes were recorded, it was invalid.
Winston – as I stated before this whole topic makes my head hurt, but as you’ve asked so nicely (
) and without me again expressing an opinion on the already discussed application of Sect 106 of the new Act as currently proposed…….To get things in the correct order, in circumstances where nobody is prepared to nominate or be nominated for membership of an E/C and in which circumstances an Adjudicator cannot appoint member/s, then the O/C as “principle manager” is taken to be administering the Plan.
In circumstances such as those, and where there is an elected E/C who as you say “for convenience and a back-up” elects to delegate all permitted functions (e.g. not those that must be decided only by the O/C at a General Meeting) to a Strata Managing Agent with full authority and without limitation, then Sect 28 Cl. 7 of the current Act and Cl. 53 of the current Bill (2015) applies whereby:
Any act or thing done or suffered by a strata managing agent while acting in the exercise of a delegation under this section:
(a) has the same effect as if it had been done or suffered by the owners corporation, and
(b) is taken to have been done or suffered by the owners corporation.
In consideration of the above provisions where I see no undesirable consequences for Strata Managing Agents acting properly under delegation, I would expect that their Professional Body will closely examine their proforma Agency Agreement to overcome any undesirable consequences to their membership that may arise from the entirety of the new Act as currently proposed.
YES
Peter – whilst the details of each new lot owner must be provided to the Secretary of the Executive Committee or to the Strata Manager, usually by the lawyer or conveyancer who handled their purchase, for inclusion on the strata roll, owners can additionally nominate any Permanent Resident with an Australian postal address to receive all “notices” including contributions invoices, meeting papers, and strata-related correspondence.
Ref: clause 121 of the NSW Strata Schemes Management Act (1996)