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lefty – so in the circumstances where the glass splashback as originally fitted to a common wall did, as you’ve now clarified (thanks) spontaneously fracture, the repair and/or replacement of that is the responsibility of the Owners Corporation (O/C), and irrespective of whether it elects to meet the consequent costs itself or to claim those against its building insurance, the entirety of those costs including the excess in the latter case is the O/C’s responsibility.
The only “out” for an O/C in circumstances such as yours is a Special By-Law where, under the provisions of Sect 62 (3) of the NSW Strata Schemes Management Act (1996), it could at its discretion specially resolve that “it is inappropriate to maintain, renew, replace or repair” a particular item of its common property – namely the splashbacks.
However your O/C has lodged an insurance claim, so I’ll assume that it hasn’t adopted this provision, and reiterate that under that scenario (or any other) you shouldn’t be one cent out-of-pocket.
I must admit that when I read lefty’s post last night I wondered what spontaneous “event” could have shattered that glass splashback, and I was tempted to respond in much the same way as Roo and KP now have.
I think there’s a broader issue here, in that on the basis of a recent experience it appears that Strata Insurers are more accepting of claims that are submitted by their Strata Manager / Agents , are less inclined (or perhaps unable) to do anything other than a desk-top assessment of any claims irrespective of who submitted them, and have a predisposition to directly pay the claimant on the basis of quotation/s instead of issuing work orders to and then paying the contractors who’ve been selected to make the repairs.
I wonder if a consequence of that approach is that Building Insurance premiums are forecast to increase by 10% this financial year, because no plausible reason was given for that when I rang our insurers in preparation for this year’s budget.
Stephen – as your Building was constructed in 2001, and if it’s in NSW then the By-Laws shown at Schedule 1 of the NSW Strata Schemes Management Act (SCMA) would apply, and the most relevant of those would be:
3. Obstruction of common property
An owner or occupier of a lot must not obstruct lawful use of common property by any person; and…
17. Appearance of lot
(1) The owner or occupier of a lot must not, without the written consent of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building; and…
Under the SCMA, residents (including tenants) may not alter, add to, or erect any structure on the Common Property without the prior written consent by the Owners Corporation.
So in my opinion any or all of the above would provide the Owners Corporation (O/C) with ample grounds to issue the Pizza Shop Tenants with a Notice to Comply (NTC) with a By-Law; in fact issue them with two (2) NTCs – one for each By-Law non-compliance.
That will no doubt get the ball rolling by providing your O/C with the means to proceed to Mediation with the assistance of the NSW Office of Fair Trading, and depending upon the outcome, to the Consumer, Trader, and Tenancy Tribunal (CTTT) for Adjudication if the Pizza Shop Tenants do not comply with the NTC.
With regard to the unauthorised use of electricity, I assume you’re referring to the “house” or Common Property supply in which case I’d firstly suggest the O/C engages the services of an Electrical Contractor to determine whether or not that supply is correctly / safely / legally connected (e.g. extension cords to cool rooms would be illegal), and if it’s not correctly connected then your O/C should contact the local Electricity Distributor (the poles and wires people) about disconnection.
That in my opinion is a better approach than the O/C simply turning off the unauthorised electricity supply and thereby risking some legal response by the Tenants for loss of their cool room contents.
On the subject of legal responses, as OverIt advised (post #2) the Pizza Shop Tenants are occupying the Commercial Lot with the permission of the Owner and under the terms of a Lease, so they’re not squatters and any concerns about their occupancy of the Common Areas under “adverse possession” provisions are in my opinion groundless.
The provisions of the SCMA applies, and your O/C should instruct its Strata Manager (SM) to get off his ?*!^ and issue the NTC, which by the way your Plan’s Executive Committee will need to meet and formally resolve and minute to do, before then providing the above instruction to the SM.
Finally, who is the Proprietor / Landlord of the Commercial Lot, and what do they have to say about all this?
Cobra – as a number of learned contributors have suggested, the best way to “stop the steamroller” is to by whatever means obtain the support of a sufficient number of like-minded Owners to defeat the Special Resolutions.
That a mere 26% of whatever number of Owners will attend the Meeting both personally and by proxy, and remember that the vote must be determined as a percentage calculation of the lot unit entitlements (LUE) of those in attendance and the aggregate LUE of your Scheme.
Surely that’s achievable in the current and historical circumstances you’ve described!
larry – I agree that in some circumstances the (NSW) Act’s requirement for the financial statements to include “the particulars and amount of each item of expenditure from the fund during the current period” is insufficient as it implies that only the total expenditure against each chart of account “item” needs to be provided with the AGM Agenda.
So if you want to see the detailed transaction report but are unable to make the time to do that, even outside of normal work hours by arrangement with your Strata Manager, then your second best option is to place a Motion on the Agenda for your 2014 AGM that’s worded such that it’s applicable to that and all future General Meetings until such time as it’s rescinded by the Owners Corporation (O/C).
That reported O/C instruction about not making the transaction report available to Owners seems odd to me. Have you tried a direct approach to the Treasurer of your Executive Committee to check the veracity of the Strata Manager’s comment in that regard?
Sydney – incredible is right!
Firstly, have a look on the Strata Title Plan to check the exact physical dimensions of the parking space, because it may be that irrespective of what markings may be on the ground, there’s a corridor between the end of the designated space and your Villa.
Post again when you’ve checked the Plan.
I’m not sure that I fully understand your post either, but presumably you are not the only Owner that’s having problems with the ‘bad’ Strata Manager, so why not place a Motion on the Agenda of that Plan’s next General Meeting to terminate the Owners Corporation’s Agency Agreement with them, and to enter into a new Agreement with the ‘good’ Strata Manager?
In the meantime, have a chat with the ‘good’ Strata Manager about their willingness to take on the additional Plan, and if they are (willing) then seek their advice about how best to terminate the Agreement with the ‘bad’ Strata Manager.
…and liddle lamzy divey.
Damn, I was too sure that your Strata Manager wouldn’t have been aware of that requirement.
I (and others) can’t comment on the proxies; ‘farming’ those might be dubious but it’s not illegal so is there anything else inappropriate about them?
Cobra – I’m sorry but the best approach in the circumstances you describe is the one that you’re reluctant to follow, and that’s to write a letter to each resident owner outlining what you’ve stated here (only) about insufficient information being provided with the EGM Agenda, and to then deliver that; personally is ideal but under the applicable entry doors is next best lest it be seen as junk mail in letterboxes.
If that doesn’t as you say pique interest, then as the proposed landscaping would constitute an alteration and/or an addition to the Common Property and the parking works may be (depending upon the specifics), then the Agenda Item concerned should be calling for a “Special Resolution” as opposed to an “Ordinary Resolution”.
I said to (only) mention the matter of insufficient information in your letter, because if it doesn’t stir the apathetic, then as much as I hate being half-smart, it may be prudent in the circumstances for you to let the vote proceed. Then if it goes the wrong way in your assessment and it’s improperly resolved by a simple majority instead of by way of that “Special Resolution”, by a minimum 75% being in favour as determined from the lot unit entitlements of those in attendance ÷ the Plan’s aggregate entitlement as I believe it should be, then request the Chair to rule the entire Motion out-of-order; OR…..
On the other hand you could be properly smart by letting the vote proceed, and if as I suspect it’s put as an “Ordinary Resolution” and thereby improperly determined by a simple majority vote and you’re dissatisfied and/or you can substantiate a position of “dubious circumstances” where a properly put Motion and more notice / details of the costs involved in agreement would likely have given a different outcome (vote), then you could seek Orders under S153 of the NSW Strata Schemes Management Act (1996) to invalidate the vote.
Carol – I don’t know what State / Territory you’re in, but in NSW it’s customary although not desirable in my opinion, for Strata Managers to request attendees at a General Meeting that’s necessarily adjourned (e.g. due to no quorum) to provide open proxies in his/her favour for use at the reconvened Meeting in order to negate the need for those Owners to again attend.
Apart from personally re-attending at the reconvened General Meeting, a proxy is the only way that those Owners originally in attendance can then vote on the Motions to be put, so if you and the other attendees wish of your own volition, as opposed to the Strata Managers expedient request, to grant proxies then at least indicate clearly how you each wish him/her to vote on each Motion.
So in summary your understanding is correct; there was no quorum, there was no Meeting, there could be no vote, and psychic or not whatever it was that your Strata Manager “felt” that a vote may have been that’s of no consequence.
My advice – unless you and the others are completely satisfied with all Agenda Motions and they’re all innocuous in your opinion/s, then either provide new proxies including voting instructions on each Motion OR personally attend the reconvened Meeting; both options will invalidate any proxies that any of you may have granted.
sbadert – Peter is right, and the same basic premise applies in NSW to the extent that Real Estate Agents and others can’t alter, attach or place anything on the Common Property without the written consent of the Owners Corporation (O/C).
Our Plan had precisely the same problem, with For Sale and For Lease signs being placed and left post settlement / leasing (for free advertising) both on the grass and puncturing irrigation lines, in the landscaping, and on balcony railings; all are Common Property.
In an effort to balance the legitimate needs of our Proprietors to sell / lease their properties, the desire of the O/C to maintain the appearance of its Common Property, and to avoid Real Estate Agents seeking its consent for each and every sign, our Executive Committee devised a Signage Policy and put it before the AGM back in 2009.
That Policy incorporated designated positions where signage could be placed, imposed size limits on those, required signage to be removed withing 7 days of settlement and/or leasing, advised that those owning the signs would be held responsible for any damage their placement caused (like puncturing sub-surface irrigation lines), and as the signage is owned by persons other than the O/C, where non-compliant signage would be stored for collection and for how long.
That Signage Policy was distributed to all local Real Estate Agencies and was (and still is) among the downloads available to “Proprietors and their Agents” on our Plan’s website.
This may sound like a lot of effort, but it really wasn’t and it’s the correct approach from a legal perspective, balances all interests, and apart from a few teething problems particularly with contracted sign “putterer-upperers”, who like junk mail distributors seem to have problems with literacy and with breaking repetitive behaviours, it’s worked a treat!
PS – I just saw Roo’s contribution (below), and should observe that I don’t agree that a fee could be legally imposed or even that it’s necessary, and further that a Special By-Law would not only be unnecessary (in our Plan’s experience) but also unenforceable against RE Agents if they’re the intended target.
Stratafied – I’d advise ascertaining the Engineer’s details including their qualifications, professional affiliations, the nature and extent of their liability / professional indemnity cover, the terms of their appointment including the scope-of-work that was provided by the Owners Corporation (Executive Committee and/or Strata Manager), and the text of what was actually reported by them.
If you’re unable to readily obtain that information such as where the Executive Committee prevaricates, and you’re in NSW, then make an application under S108 of the NSW Strata Schemes Management Act (1996) and provide your Strata Manager with concurrent advice about precisely what records you want to be made available for inspection.
Once you have that information, you and the other Owners will be in a position to better determine the extent of any professional negligence, and will also know from whom and by what process the Owners Corporation may best seek recompense.
I hope it’s not the situation in your case, but I have personal experience with clients such as your Owners Corporation seeking advice from inappropriately qualified and/or less experienced consultants, with either no scope-of-work or with one that’s driven more by a budget than it is by what’s really required.
Anyway, at least the suggested approach should guide you and the others in how hard to push and in whose direction!
tiamaria – as DaveB suggested, your Owners Corporation (O/C) should obtain an expert report about the compliance or otherwise of the existing hotwater heaters installed at the Plan, and about current requirements for the various types of internally installed gas hotwater heaters.
I don’t know if that’s something that Integrated Building Consultancy may undertake as a wide-ranging investigation, but they’re one of FlatChat’s sponsors and you can contact them in the first instance on (02) 8814 5999.
Secondly and if you want to keep the scope of the investigation specific to the fluing, any competent gas plumber would be aware of the relevant Australian Standard; and
Thirdly, if your O/C wishes to purchase and interpret its own copy the relevant guidelines then contact Sai Global on 131 242 and ask for a CD of AS 5601-2002 (AG 601-2002); they’re the authorised distributor for Standards Australia; and
Lastly, have a look at one gas hotwater heater manufacturer’s interpretive information HERE.
leif … I’m certain that if I had the time and inclination I could select an equal number of legislative excerpts and spin those around in order to convey the opposite opinion, of which some from the Law Enforcement (Powers and Responsibilities) Act (2002) would be but one.
Fortunately for everyone I don’t, so I’ll merely again suggest that ongoingissue relies on the majority opinions expressed here, and negotiates in good faith with the O/C and lets common sense dictate the outcome.
____________________ that’s it from me! ____________________
Andy ….. I can’t add anything of significance to Scotty’s post, so here’s my less than illustrious contribution:
The Court ruling that you’re interested in is Jean Whittlam v Sara Hannah & John Hannah [2011] Downing Centre Local Court 63913/11