Forum Replies Created
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James – firstly it’s not a consensus, it’s a vote in favour by in excess of 75% of those Owners who are entitled to vote at the General Meeting, and secondly, I (and others) suggested an on-going “contribution” to the O/C by Owners such as you who would benefit from it accepting responsibility for the maintenance and repair of your/their private property, as that’s a far better solution than doing a Strata Sub-Division of your Plan in order to change unit entitlements.
I’d suggest that you start lobbying right now in order to avoid that one lot stalling the whole thing.
Isn’t Cl 64 irrelevant?
After all the work that James (jamezb) wants his O/C to pay for hardly passes the test under 64.1(a), and the costs of the work can be recovered from another person under 64.2; him.
James does own the Common Property windows as part of the O/C “collective”, but that aside, wasn’t his original beef that his O/C was going to use funds collected on the basis of units of entitlement to replace Common Property windows, in circumstances where his Lot only had one (1) of those, where other Lots had many, and where his balcony door and window could only be concurrently replaced at his own cost?
Have I given James and everyone else a headache, or have we actually solved his problem IF he successfully argues a case for his O/C to add to it’s Common Property by taking-over balcony-facing doors and windows?
I think I need a drink (won’t walk through any glass doors though).
ccgirl – further to KP’s post, I support his advice that your Executive Committee should first check the “contract details”, because not only will that Strata Management Agency Agreement (in NSW) between your Owners Corporation (O/C) and its current Strata Manager detail if they’re required to arrange site inspections such as the one by the plumber, but it will also detail the circumstances under which that Agreement may be mutually terminated; usually with three (3) months written notice.
That will answer your question about the legality / ethics of what the Strata Manager has done with regard to delegating the task to the Executive Committee (E/C), and also your second question about the E/C insisting that the Strata Manager do the job that they’ve (maybe) been contracted to do.
In NSW both the Strata Manager’s activities and the operation of their Agreement with your O/C is governed by the provisions of the Property, Stock, and Business Agents Act (2002) and by a Code of Ethics developed by their peak industry body, Strata Community Australia (national), through whom your E/C can also lodge a complaint.
A word of caution though. There is always two sides to a story, so before your E/C jumps into the deep end, it should just make sure that it’s appraised of all the facts, lest your O/C finds itself paying for a new Strata Manager and the current one, and also be in the middle of an otherwise unnecessary quagmire as one Strata Manager (slowly) hands-over all the O/C’s records to another.
henrietta – thanks for the additional details, and by all means speak with you solicitor, but there are in my opinion better ways for you to try to resolve the noise issues (again).
Firstly, as the noise from the “drunken, noisy parties” is affecting your tenant, they (not you) should, albeit with your encouragement and advice, avail themselves of the remedies available to them under the NSW Protection of the Environment Operations Act; sounds like a convoluted mouthful I know but it’s all HERE.
Secondly and as Tenants too are required to comply with your Plan’s By-Laws under a standard condition of their Lease, you as the Owner should approach your Strata Manager with a request that they immediately:
- Contact the noisy tenant’s Property Manager (Rental Agent) and advise them that they’re issuing their tenant with a Notice to Comply with your Plan’s By-Law relating to noise, and;
- Copy the Owner of the upstairs Unit, and also inform them that once notified, there’s a legal precedent that can make them as responsible for their tenant’s noise as would be the case if they themselves made that noise.
In that way the Police or Local Council Officers can deal with your tenant’s issues, if necessary by a Noise Abatement Order upon the upstairs neighbour, and you can with the assistance of your Strata Manager (as you’re interstate) concurrently proceed down the formal mediation path offered by the NSW Office of Fair Trading (HERE), and if necessary progress those via the NSW Consumer, Trader, and Tenancy Tribunal (CTTT) Strata Division (HERE).
I appreciate that you’re interstate, but your Strata Manager is paid to assist in the manner suggested, and whilst that may legitimately result in a Fee to you as the Owner involved, and you may have to attend some CTTT sessions yourself, if you want the issue resolved …….
jamezb – the simple answer to both your questions is YES.
At a General Meeting of the Owners Corporation (O/C) a Motion can be Resolved by way of a Special Resolution to add to the Common Property of the Plan. That would require ≥75% of those present and entitled to vote (i.e. personally and by proxy) to be in favour, where that percentage must be calculated on the basis of unit of entitlement.
In the absence of a subsequent Special By-Law stating who’s responsible for the on-going maintenance, repairs, and replacement of the balcony windows and doors, then the default position is that the O/C would be responsible for all that; and that’s your objective.
The more complex issues include that any additions to the Common Property under this Provision of the NSW Strata Schemes Management Act (1996) are to be for the purpose of “improving or enhancing” that Common Property.
So you first challenge is to convince your fellow Owners that what you, and I suspect the other 20 affected Owners, may propose meets that criterion.
Your second challenge is to address the increased “value” of the Units owned by those 21 individuals that would arise from any such Special Resolution by the O/C, that is from the perspectives of both future sales and the on-going maintenance costs.
It’s both customary, and in my opinion appropriate in the circumstances, for any Resolution of the type discussed here to include a provision for an on-going annual monetary “contribution” to the O/C by those 21 Owners, the amount of which should be reflective of that beneficial “value” and be varied over the years in accordance with movements in overall Levy Contributions.
A contribution of the type suggested may even sway the other 7 Owners to a conclude that what’s proposed could “improve and enhance” (the look) of the Common Property; at least all windows and doors would be the same and be always maintained to the same level (?).
Good luck, and perhaps start canvassing other Owners, and especially the 7 who really don’t stand to benefit all that much from any such proposal, to gauge the extent of support between now and the next General Meeting.
Yes it is, and it’s also the right way in all respects.
A point of clarification on some earlier posts though, fixtures such as built-in wardrobes, kitchen, laundry and other cupboards are the responsibility of Lot Owners, BUT if they’re fixed to a common wall, floor, or ceiling AND they’re damaged due to a defined event, then subject only to a denial of responsibility (for some exceptional reason) by the Owners Corporation’s Insurer, they’re covered by that (building) Insurance.
Jimmy – I wouldn’t bet my last cent on it, but so far as I’m aware the change from the 1960’s Legislation to the 1973 Strata Schemes (Freehold Development) Act resulted amongst other things in a change to the recognised boundary between Lots and the Common Property, from the centre line of common walls, floors, and ceilings to the inner face of those.
Again, I’m not certain, but so far as I’m aware one of the savings provisions in the 1973 Act left walls separating parts of the Lot in already Registered Plans as part of those Lots; that is as it was under the 1960’s Act.
It’s not really germain to the question so I haven’t bothered to search for the old Act/s, but whilst jamezb should still check the Strata Title Plan for any relevant notations / exceptions, the norm is I believe as he/she’s stated for pre- 1974 Plans.
KP – in NSW (which is where I think jamezb‘s located) O/C’s can resolve by a simple majority to carry out works for which its not otherwise responsible, and without then becoming responsible for whatever it is that they’ve done infinitum.
I think that I’ve missed the original question though, where ….
jamezb said
Should the cost of the ‘common property’ window replacement be split due to ‘unit entitlement’ or split in regards to % of square metres required.
and where my response is, if the total cost of replacement for Common Property windows is to be met from O/C’s funds (i.e. Sinking Fund) then its already been “split” in accordance with the units of entitlement (UOE) on its way in, and if the O/C needs to raise the funds necessary by way of a Special Levy then again it should apportion Owners’ contributions in accordance with UOE; although if a different once-off formula could be agreed upon by way of a simple majority at a General Meeting I wouldn’t be too concerned.
jamezb – you’re correct in that a 1974 change in applicable Legislation (in NSW) meant that in most instances any walls (and anything in them such as windows and doors) located between parts of a Lot, such as between a living area and a balcony, were part of the Lot and therefore the responsibility of the Owner.
To be certain though, you must check the Strata Title Plan for your complex, because there were occasions where a notation was made on those Plans that created an exception to the norm.
If the works proposed to replace the balcony doors are to be at cost to individual Lot Owners from their own funds and not from those in any account of the Owners Corporation (O/C) then those Owners can agree amongst themselves to any appropriate means to share that cost.
The costs to replace Common Property windows (only) will be from the Sinking Fund.
It seems to me that if ALL windows and doors are to be replaced concurrently and by the same contractor, then assuming adequate funds are available the O/C could resolve to meet all the costs from its Sinking Fund which is after all the collective funds of individual Owners, albeit raised on the basis of Unit Entitlement which you claim is inequitous. That would be the most sensible approach in my opinion.
henrietta – any advice provided would depend upon the type of noise you’ve been experiencing, that is party/music/domestic type noise or impact noise such as from hard floors, and what State/Territory you’re in.
If you can provide that info. and anything else of relevance then I’m sure that good advice will follow.
A condition of your Tenancy Agreement requires the Landlord to give each Tenant a copy of the entry key and any other opening device / information (e.g. an access code) “for the premises and any common property that they’re entitled to access”.
Note that the wording is ” give” not charge for, other than for a security deposit that must be refunded when you hand back the keys/devices, that it’s “entitled to access” not just “reasonable access”, and that the provision applies to each Tenant named on the Agreement (Lease).
So if you genuinely need another remote, then you should ask your Property Manager to include your housemate on the Agreement (unless that’s been done already), and then ask him/her to approach your Landlord about arranging that additional remote with his Strata Manager / Owners Corporation as the Agreement and the NSW Residential Tenancies Act (RTA) requires.
BTW the provisions of Sect 70 (2) the RTA apply as they’re superior (at law) to any Special By-Law that the Owners Corporation of your Building may have concerning security access or similar matters.
Now that you’re almost “IN”, I just hope that you do as you stated in your first post, by legitimately accessing the visitor carspaces only for your short term visitors, and by using the gate to get your bicycle in and out of the garage; if you don’t, then RTA or not, the Owners Corporation can (and should) come down on you like the proverbial ton of bricks.
andilee et al – It sounds to me like you’ll be in somewhat of a quandary while you sort out the conflicts that exist between what your State’s sustainability regulations require (or more accurately, prohibit) and what your Body Corporate will consent.
You will also have some issues that I’ll bet the plumbing contractors haven’t considered, like how the ≈40 year old hotwater pipework in your townhouse will cope with the transition from the around 20 kPa that it now handles from the ceiling -mounted gravity system to the average 500 kPa that it will need to cope with from a mains-pressure system?
Have you considered refurbishing the existing hotwater system, which is probably on the now redundant / cheap off-peak tariff (or would be in NSW), and having the hotwater plumbing checked and upgraded to accept a new system post resolution of the conflicts?
At least in that way your tenants won’t move out in the interim, and you’ll be assured that whatever new hotwater system you finish up with will just be a plug-in.
I don’t know in which State/Territory you’re located, but that’s a strange one; which is probably why I’m the first to jump in!
Irrespective of your location, the first thing that you or your solicitor / conveyancer needs to do is to check the Special By-Laws of the Plan, because there may be something specific Registered on the Strata Title about a joint-responsibility for windows; perhaps to take account of the costs arising from damage caused to those by residents (incl. tenants).
In the absence of a Special By-Law, windows in the common (perimeter) walls of the building are the responsibility of the Owners Corporation (O/C), that is required to “properly maintain and keep in a state of good and serviceable repair the common property” and “must renew or replace any fixtures or fittings (like windows) comprised in the common property” (ref: S62 of the NSW Strata Schemes Management Act).
Windows are covered for damage by “defined events” (e.g storm damage) under the Building Insurance that’s compulsorily held by the O/C, and in the absence of any defects / warranty liability by the original constructor of the building, I seriously doubt that the problem with the windows that you describe would be covered by that Building Insurance, but that doesn’t absolve the O/C from meeting all costs involved in meeting its obligations under S62.
So in summary, in the absence of that Special By-Law the problem you describe is not something that Owners could be held responsible for rectifying.
Emma – I don’t profess to be a “Guru” when it comes to Company Title, but so far as I’m aware Company Law would prescribe that your company’s Articles of Association or Constitution contain details of precisely what areas comprise each shareholder’s property.
Have you looked at those?
I don’t know what State/Territory you’re in, and the Tenancy Agreement that you’re quoting from must be an old-style one, but it’s stating that the landlord pays the fixed service charges on the Water Utility Account such as that for the sewerage service, and the tenant pays only for the quantity of water (kL) that they use.
I can’t explain why you haven’t received a charge from the landlord for your component of the Water Account, but in NSW they’re required to provide tenants with a copy of the Water Utility Account highlighting the ‘usage’ component for which their tenant is responsible.
If in doubt, then contact your closest tenants’ advocacy group – like Tenants NSW who may also be able to assist you with the carpet issue.
I don’t know which State / Territory you’re in, but so far as I’m aware electric hot water heaters (storage and instantaneous) are still permitted in existing dwellings under the BASIX system in NSW.
If you advise your location, posts may provide more applicable advice.