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@ongoingissue said:
Just on that, I was wondering what a penalty unit is?A penalty unit based system is the means to avoid re-drafting Legislation on every occasion that our elected representatives wish to increase prescribed penalties; they legislate the units and adjust the $ applicable by Regulation.
In NSW a penalty unit is currently $110.00.
PMC2 said..
I feel I must disagree with your interpretation as Strata Law does not override Common Law.
I should probably have allowed Jimmy to respond first, but as I’m involved in the discussion albeit more deeply than I envisaged, and at the risk of using a sledgehammer to crack a nut (or ongoingissue‘s tiles), may I instead make some observations.
If a State / Legislated Law can be overridden by a Common Law, then how in the context of trespass can police enter a private residence if they reasonably suspect the commissioning of a crime, how can a raft of Federal, State, and Local Government representative enter private premises for the purpose of making inspections or carrying out their duties, and how can an Owners Corporation access its property in an emergency or otherwise when that must be by necessity through private property?
I’m sure I’ll be corrected if I’m wrong here, but I was of the opinion that Common Law can only applied by a Court, and only then in circumstances where a relevant State / Legislated Law was deemed insufficiently specific to the particular matter under consideration.
Hence, any Law made by the peoples’ elected representatives such as the NSW Strata Schemes Management Act (1996), is the “strongest” Law, and that it overrides Common Law except in a situation of ambiguity, or where the matter is ill-defined in the relevant Act; where in ongoingissue‘s situation Sect 65 is most definately not (ill-defined).
Let my further education begin…..
In NSW Sect.65 of the Strata Schemes Management Act (SCMA) allows an Owners Corporation (O/C) to “enter on any part of the parcel for the purpose of carrying out work ….. (that’s) required to be carried out by the Owners Corporation in accordance with this Act“, and as the work involved is required of your O/C under its obligation under Sect.62 of the SCMA to “maintain and keep in a state of good and serviceable repair the Common Property“, your O/C can legally enter your Unit in order for it to access its Common Property.
Now… that’s not to conclude that you don’t have rights to place reasonable conditions upon that access, such as perhaps requesting that cover sheets be put down and/or that all equipment and materials be conveyed to the balcony area at the one time and in your presence as opposed to on an as-needs basis, or that access be gained externally as you have suggested in your post.
So try to negotiate suitable conditions and/or alternatives for access to your balcony with your O/C, and in the unlikely event that those are unsuccessful, then simply refuse access and that will force your O/C into formal mediation and possibly to adjudication – where personally, I don’t consider that any person acting reasonably could disagree with your position.
OK…this and your other posts may have indicated dyslexia, but I’m not physic.
Hopefully formal mediation will resolve your issues and show you the best way forward; good luck!
OverIt – We’re not privy to all the issues, although I suspect there are some additional and perhaps long-standing ones between you and your Committee, on the basis of this and your other posts it’s clear that your Unit has a range of mould-related problems albethey apparently due to different causes, and further that you’re prone to initiating your own paid investigations instead of affording your O/C the first opportunity to maintain its Common Property.
I’ve previously explained the down-sides of your approach, and even though you regard that as necessary (?) and it’s been in circumstances where you have a tenant that understandably you wish to retain, and on the basis of your Property Manager’s advice (who should know better), it has the potential to muddy the waters of responsibility and raise issues with payment; and it has!
What does that tell you?
Anyway, from what you’ve advised here, in general terms provided the ventilation system is communal and it’s not blocked due to misuse, it’s the Owners Corporation’s problem and it should at least properly investigate to definitively identify the cause of the problem that you’ve reported,and how to rectify that.
So as you’ve indicated on your other post, add the ventilation problem to the list of those that you wish to submit to Mediation, and perhaps in future discuss any maintenance and repair matters within your Unit with your Strata Manager (who works for you) in the first instance.
Sorry, I saw bedroom and read bathroom; must be dislexicia
Notwithstanding, the problem is still with the common property and the O/C is responsible for correcting the fault and any damage it caused by it.
So whilst my advice is the same, there’s are opinions (that I don’t share) that any repainting arising from such faults is Lot Owners’ responsibility, the onus is upon you to prove that the faulty drainage (down pipe) gave rise to the damage that you repaired, and that the cost of that was reasonable.
It will do no harm to take the matter to mediation if your O/C and you can’t reach an agreed outcome or perhaps a compromise.
OverIt – to be fair, I can see two sides to your story.
On the assumption that you’re in NSW, the first side is that whilst the Owners Corporation (of which you’re a member by the way) is responsible for maintaining its Common Property, of which your bathroom window and its seal is a part, they also have the right to obtain their own quotations and engage the tradesperson of their choice to undertake that maintenance, and in a way that doesn’t compromise its building warranty claim.
A possibly allied issue is that the invoice you submitted to your Owners Corporation (O/C) may have been made out to a third-party (i.e. you), in which case some O/C’s and/or Strata Managers will decline payment for reasons of probity.
Clearly the other side is the extenuating circumstance that lead you to, based on your Property Manger’s advice, authorise the necessary repairs to the window and its seal.
If you’re in NSW, your next option is to advise your O/C that you intend to make an Application to the NSW Office of Fair Trading for Mediation, and if that doesn’t elicit the desired response and you want to pursue a “fair and just” outcome after almost 2 years, then read THIS and lodge THIS.
Did anyone see a recent segment on an evening “current affairs” program where an Owners Corporation engaged the services of a somewhat infamous carpark operator to “patrol” its carpark and to issue payment notices to non-resident parkers and to residents parking their vehicles in visitors’ carspaces?
The story contended that the payment notices may be illegal, but it also aired vision showing the results of the O/C’s initiative; no illegally parked vehicles, deserted visitors and carwash spaces, and a few residents who whilst upset about the process, acknowledged the successful outcome!
On the assumption that your complex is in NSW, I’m surprised that it has two unallocated carspaces available to residents on any basis let alone “first in”.
Are you sure that those carspaces weren’t originally designated for visitors?
Because if that’s the case, the provision of those would have been a Condition of the Development Consent for your complex, and your Owners Corporation cannot circumvent that except on a short-term / special needs basis.
As for the rights of residents in your complex whose occupancy isn’t covered by a Residential Tenancy Agreement, I’m afraid that their rights so far as Strata is concerned is the same as those of any other resident, but so are their obligations to comply with the By-Laws of the complex.
So in my opinion your first action should be to ascertain the original purpose of the common carspaces (the Strata Title Plan should show that), by what means those were made available for resident parking (e.g. a decision at an AGM), and whether on the basis that it may well be contrary to the approved DA and that it’s proving to be problematic, that availability should be rescinded.
As you mention Sydney Water I know your Plan is in NSW, so…
What’s actually happening is that the Owners of the 12 Units are each receiving a quarterly account from Sydney Water for “Service Availability” that, as the name implies, represents the cost of having its services available to each Unit to supply water and to take sewage away.
Sydney Water’s costs for all the water that’s actually consumed by those 12 Units is based on what’s recorded by that single water meter, and that quarterly account goes to the Owners Corporation who should be paying it from funds in the Administrative Fund and not as you say be “divided up evenly between the Units to pay”.
Payments for water consumption must, just like other common costs such as for building insurance, property maintenance (e.g. grass cutting), and electricity for the outside lighting be raised through Owners’ strata levies which are based on the unit entitlements applicable to each Unit (e.g. larger Units pay more), and as I said should be paid from your Plan’s Administrative Fund.
I too am aware that Sydney Water and other Water Supply Authorities have plans to meter the water supplied to individual Units in Strata Buildings in order to encourage each resident (as the water user) to use less and therefore pay less; that’s called “demand management“.
Whilst the technology required to do that has been available for years, many older Units have more than one supply inlet and so would need more than one meter, and so the additional costs to read all those meters combined with the potential for inaccurate metering caused by all the twists and turns within water supply pipes that weren’t designed for metering, puts the whole thing very much on the back-burner.
At the end of the day, the Water Authorities are paid for the Plan’s overall water consumption anyway, so don’t hold your breath!
…as a further response, what you should be worried (or at least give consideration to) is that the Council could withdraw its Occupancy Certificate and/or that the Owners Corporation (O/C) could require its Common Property (ceiling) to be returned it its original state.
I’m also a conservative, but as the works have apparently been professionally undertaken and the current Owner of the Lot has a Structural Engineer’s Certificate, the chances of the Council or the O/C taking any action is remote in my opinion.
I’m not a lawyer, but why not ask yours to request an extended cooling-off period or depending on their advice a delayed settlement, either one being conditional upon the vendor obtaining either or both of the requisite consents?
Personally, I’d focus on the O/C’s consent, but be guided by your legal advice and in the event that the vendor doesn’t agree, then that’s likely because they can’t obtain those consent/s, in which case you walk away.
Firstly, in NSW the Owner of a rented lot is legally required to provide the Owners Corporation with their tenant’s details within 14 days of the Lease commencing (see HERE); perhaps your Strata Manager should pursue that avenue where a penalty of $550 may be imposed.
Secondly, whilst the proforma Notice to Comply (NTC) provided by the NSW Office of Fair Trading includes a field for the name of the owner or occupant, I’ve in the past, although in a different circumstance, issued and successfully enforced a NTC issued to the “Legal Occupant” and copied to the Owner.
I was able to state at the NSW Consumer, Trader, and Tenancy Tribunal (CTTT) that, in accordance with my Affidavit, I had personally served the NTC upon the person who I knew to be the occupant of the lot – although I admit that success at the CTTT too often depends on how the parties conduct themselves and who it is that makes the ruling.
…and assuming Oscar 47 is in NSW, the Committee is also required to provide a Notice of Meeting (Agenda) to all Owners a minimum 72 hours in advance (ref: Sch.3 Pt2).
In addition to and possibly prior to actions under the advice provided by KWP, you might inform your Committee Members that they’re compromising the protections afforded to them under the Office Bearers Liability Policy of the Owners Corporation’s Insurance, and that consequently they could be held personally liable for the consequences of any illegal or otherwise non-compliant (with Sch.3) decisions collectively taken.
Gees guys….. are you tartan-clad lot picking on the Whale?
How is an Owners Corporation removing a satellite dish from its Common Property any different from it removing a person’s car from its carpark or even removing Agents’ signs from its front yard?
In each example the O/C is dealing with the property of a third party, and whilst that’s not inviolable, I was just suggesting that the O/C should first give the property owner the opportunity to relocate or remove it, and should that approach fail, to be cautious about how it handles that property, and be aware of the fact that in UN-FAIR’s situation it’s interfering in a contractual relationship between a a provider of pay-tv service and its subscriber.
So before this topic slides off the bottom of the homepage – Save the Whale!
KWP, unlike yourself the Doc. may not have a bullet-proof vest
.I know he’s loathe to go down the gold-plated and legally correct path, but a Motion on an General Meeting Agenda forms the basis of a License that doesn’t need to be full of legalese.
Anyway – after considering all points of view put here, it’s now the Doc’s decision.