Forum Replies Created
-
Replies
-
pmo – whilst I understand absolutely why you’re so angry with your Executive Committee about how they attended to common property repairs involving your friend Mr X’s unit, because even though I’m sure they’d dispute it, even without knowing all of the relevant facts it seems they acted improperly.
It’s unusual for your E/C not to check on the progress of the repairs, but I don’t understand that if the repairs were progressing so slowly and with such obvious poor workmanship why your friend didn’t inspect those works (assumption) and as he would have surely “reasonably foreseen” the loss of rent that would eventuate, and why he didn’t immediately bring matters to the attention of the E/C or immediately lodge an application for mediation together with one for interim orders to have the works suspended.
In the absence of such proactive steps by Mr X he would, save the vindictiveness that you suspect, in my opinion have difficulty substantiating that the owners corporation (through its E/C) could have reasonably foreseen the loss that he incurred, and so he would likely not be able to successfully pursue the owners corporation under sect. 106 of the proposed new legislation.
As I observed before, as the proposed sect. 106 is an additional as opposed to a replacement provision for one that exists in the current Strata Schemes Management Act, and even with logic excepted where I can’t see how a backdated two (2) window could exist within which owners could seek redress under the proposed section, in my opinion the new provision will apply and the two year (2) window of opportunity commence from the date that the new Act is made law in NSW.
I reiterate that I understand your anger and frustration over what appears to be an appalling situation, but this will be my last contribution to the topic primarily because on a historical basis few contributors to this Forum wish to delve too deeply into the legalistic intricacies and interpretations of strata-related issues, and because my head hurts 🙂
For your friend’s sake, I hope I’m wrong so that he can at least have his day in the Tribunal.
RL – YES…… the NSW Legislation that enables Councils to issue a Fire Safety Schedule as part of its Development Consent (DC) commenced in July 1988, so Multi-Unit Developments that were completed prior to that date are exempt from the requirement to undertake and Annual Fire Safety Inspection unless as you state there has been some subsequent reason or occurrence that permitted the Council or NSW Fire & Rescue to prescribe such a Schedule.
…..and what is the force or effect of such a breach under the current Act?
I say none save a ruling by the N.C.A.T., and you say otherwise.
So I’ll agree to disagree, and hope that the new Act doesn’t see owners and owners corporations in the Supreme Court where the former would have to prove that the latter breached its responsibility to properly maintain common property.
A failure by an Owners Corportion (O/C) or its Executive Committee to properly maintain the common property has no effect under the current Act unless under an Order of the NSW Civil & Administrative Tribunal, and consequently I’m inclined to the opinion that the two (2) year “window” within which an O/C may be sued by an Owner for a breach of those responsibilities will commence upon gaxettal of the proposed new Act (2016?).
Retrosectivity of legislative provisions are uncommon, so save clarification by the drafters of the Bill, I guess we’ll have to wait and see, and hope for an Act that’s free of ambiguities.
I agree with most of pmo’s comments, although unless the Owners Corporation has X-ray vision I don’t agree that any failure of it to detect concrete cancer in its common property, in this case with the floor of George B’s lot, could be construed as it being in breach of Sect.62 of the Act, or that a “window” within a yet to be gaxetted Act wherein owners may sue Owners Corporations who have breached their responsibility to property maintain common property could be interpreted as a retrospective provision.
I also wonder what George B’s approach to alternate accommodation would be if, in these same circumstances, his concrete cancer affected residence was a stand-alone property, and if he would consider that those same remedial works commissioned by him would render those premises ‘”uninhabitable” (under the defining criteria adopted by insurers) or whether he would make an effort to work-around the issue by moving items of his contents and by perhaps moving into another bedroom on a tempory basis.
I’m not suggesting that George B should meeky comply with his Strata Manager’s demand that he vacate his residence, but I wonder to what extent his Owners Corporation and/or its Executive Committe is aware of the detail of that, and to what extent the Strata Manager is acting autonomously.
So before adopting pmo’s suggested shock-and-awe approach I’d suggest that, via his Executive Committee Members and in advance of an application for mediation, George B formally makes his Owners Corporation aware of the situation, offers to make access reasonably available to its contractors and to allow them to move his personal property, with the trade-off that it pays to repair/replace anything that’s consequentialy damaged, leaves his residence as clean as is practicable at the end of each day, and that the duration of the remedial works be contractually reduced.
It reason doesn’t prevail, then by all means resort to a toned-down version of the shock-and-awe approach by perhaps deleting points 2, 3, 4, and 7 of pmo’s suggested correspondence.
Floyd – the NSW Strata Schemes Management Act (SCMA) is not that specific, but as a matter of principle the Owners Corporation (O/C) is responsible for the maintenance and repair of its common property, and owners are responsible for that activity within their lots.
However in the circumstances that you describe, there are a couple of complications (at least) including whether or not the lot owner concerned sought the prior consent of the Executive Committee (E/C) to replace the “as constructed” floor coverings with a wooden floor, and if so, whether the O/C then resolved to put a special by-law in place to among other things state who is responsible for the ongoing maintenance and repair of that type of flooring, and to what extent the current degree of water damage to the owner’s flooring arose from their reluctance to “work with” the O/C to address the spalling problem.
On the assumption that you’re in NSW, that there was no prior consent, and that there’s no applicable by-law or special by-law in place, then the usual interpretation of the SCMA is that the O/C must do whatever is necessary to repair the spalling (common property), and the convention is that it must also rectify any damage that’s consequentially and unavoidably caused to the lot owner’s property.
If as your post suggests the lot owner’s prevarication has worsened the damage to their flooring, then to both adopt a consistent approach (to that taken with other owners) and to limit expense to the O/C consequential to its necessary repairs, its E/C should in my opinion resolve to require the lot owner to at their cost provide clear access for the O/C’s contractors to attend to the spalling repairs on its common property by removing all necessary section/s of their wooden flooring.
The O/C could leave the subsequent replacement of those sections of wooden flooring to the lot owner’s discretion, although others may suggest that if the entirety of that flooring was originally installed without the prior written consent of the E/C, then the lot owner could be required to restore the floor covering to the type that existed at the time of the building’s completion, but in my opinion that would be excessive given that other owners have, presumably with the E/C’s knowledge, installed similar flooring.
- As an aside, problems arising from owners’ installation of wooden or laminated flooring post completion of buildings are such that this Forum has a topic dedicated to discussing those, and the upcoming NSW Legislation will specifically remove such works from Executive Committees’ delegations, and instead require approval only by the O/C at a General Meeting.
Yes it does… absolutely!
In the example you cite, I think we agee that a special resolution of the Owners Corporation (O/C) can legitimately transfer the responsibility for maintaining wiring within the ceiling space of lots from itself to you as an individual owner, however I don’t know of any provision of the Act that requires a special by-law to be unanimously (as opposed to specially) resolved in order to prevent you from sitting in the dark.
Thankfully, Johnny (post #1) is contemplating a transfer of responsibility for items such as insect screens and locks, where owners’ reluctance to themselves maintain those consequent to a special resolution of the O/C under the provisions of Sect. 62(3) would not necessitate a special by-law to mandate that maintenance.
Paul – my understanding is that in these circumstances, where the Property Manager is required to give you a minimum 7 days written notice, you’re required to provide and permit them access to all parts of the premises to which you have exclusive occupation under the terms of your Lease.
Strictly speaking, that provision doesn’t require you to provide the Property Manager with access to shared-use areas of the property such as to the building’s entry door, so if their notified day/time of inspection is genuinely inconvenient to you, either try to reach and agreement to a different day/time when you can be present (preferred) or suggest they make arrangements for access with the owner / landlord such as by obtaining an additional swipe-card.
Perhaps seek clarification from Tenants NSW.
Jimmy T said…But it would take a unanimous decision to pass responsibility on to individual owners, rather than just taking it away from the owners corp.
I was aware that owners’ written agreement was required in order for an Owners Corporation (O/C) to require them to maintain common property that they’d altered or added to the building under Sect 65A, but save the provision relating to safety and appearance etc., I thought that a By-Law passed by way of a special resolution was all that was necessary to ensure that respective owners properly maintained defined item/s of common property already existing within or attached to their Lot/s.
What have I missed?
LGA – I think that the original requirement for 5 yearly valuations by a Registered Valuer in the current Act was repealed (at sect 85?), but nonetheless the original “exposure draft” of the NSW Strata Schemes Management Bill (2015) released around July 2015 stated at Sect 163:
163 Valuations to be obtained for the purposes of insurance(1) A valuation of a building that is required to be insured under this Division must be obtained at least once every 5 years by the person or persons required to take out a damage policy for the building.(2) The valuation must be carried out by a person who has the qualifications prescribed by the regulations.(3) The proportion of the cost of a valuation that is payable by an owners corporation or other person is the same as the proportion of the premium for the damage policy that is payable by the owners corporation or person in respect of the building concerned.However the currently available release of the Bill (2015) states at Sect 161, and with reference to the requirement at the preceding Sect 160 regarding compulsory building insurance;161 Requirements for Damage Policy(1) General requirementsThe damage policy for a building must be with an approved insurer, be in the name of the owners corporation, and any other person required to insure under section 160 and provide for the following:(a) the building is to be insured for at least the amount determined in accordance with the regulations.So like you, I assume that a requirements within the original “exposure draft” of the Bill are to be reflected in the Regulations that are currently being drafted, or perhaps that it’s intended for “approved insurers” to prescribe at what frequency valuations are to be conducted, and by whom.PS – I’ve done a bit more research on this and have confirmed that Sect 85 has indeed been repealed, that the draft Regulation (2016) will not prescribe periodic valuations, and that the insurer of our Plan, who is oblivious to the situation, would only comment upon the dire impacts of under-insurance about which I’m already aware.Call me a cynic, but it seems to me that this is yet further evidence of Governments’ desire to get out of everything “regulatory” unless it generates net revenue, and to instead permit self-regulation and private certification, thereby facilitating the free-for-all that will surely result — this time by some Owners Corporations not arranging regular valuations of their properties, because they won’t have to!Returning to JC’s post #1, I just found the following in the Savings Provisions of the NSW Strata Schemes Management Bill (2015):
Existing Executive Committees.(1) A person who, immediately before the commencement of this clause, was a member of the executive committee of an owners corporation is, on that commencement, taken to have been appointed to be a member of the strata committee of the owners corporation for the balance of the person’s term as a member of the executive committee.(2) A person who, immediately before the commencement of this clause, was an officer of an executive committee is, on that commencement, taken to have been appointed as an officer of the same kind of the owners corporation for the balance of the person’s term as an officer.Johnny – on the assumption that the Plan you’re referring to is in NSW, then your Strata Lawyer’s advice is incorrect as the assignment of responsibility for the maintenance, repair, and replacement of defined items of common property may be transferred from an Owners Corporation (O/C) to individual Lot Owners under the provisions of Sect 62(3) of the NSW Strata Schemes Management Act (1996), where a special and not a unanimous resolution is required.
Further, a Special By-Law is not necessary for a special resolution in the above terms to be effective unless the O/C wishes to ensure that Lot Owners do actually maintain the referenced items and don’t instead leave them in a state of disrepair simply because they have to pay.
So if your O/C wishes to mandate proper maintenance by Lot Owners then once properly resolved, an enabling Special By-Law may be personally lodged (as and “addition”) by the Secretary, or by an Owner authorised in writing by that person, with the “Lodgements Officer” of NSW Land & Property Information (L&PI) using THIS form, accompanied by the original of the Plan’s Strata Title Certificate, and the payment of $109.50.
As mentioned, no access to a Lawyer’s DX service meant that a change/addition of by-laws Form had to be lodged in person at the L&PI’s Queens Square H/Q for any Strata Plan located within Greater Sydney, but maybe check whether that can now be done at one of those integrated Service NSW Offices.
WW – any claim for a reimbursement of your insurance excess would be against the person at fault, where presumably you believe that to be either your prevaricating Owners Corporation (O/C) or “offending owner” of the Unit above yours.
Notwithstanding the other issues that you’ve mentioned where the O/C may well be complicit, it’s not in my opinion responsible for causing the damage to your Unit that’s now the subject of an insurance claim, and as I mentioned in an earlier post the Owner of the Unit above yours has not in my opinion “offended” either actively or passively, in circumstances where the water damage was actually caused consequentially by the activities of NSW Fire & Rescue.
The decision about pursuing the recovery of your contents’ insurance excess is clearly yours to make, and even though you’ve been royally stuffed-around by your O/C, I’d be inclined to be grateful for small mercies and leave the issue of the excess alone, and to instead concentrate on those possibly more important issues involving its activities at the upcoming AGM; but that’s me!
Blanchie – even though you didn’t indicated in which State / Territory you’re located when you registered (maybe do that before you post again), your reference to “post 1974” tells me that you’re in NSW, where Owners Corporations (O/C) [not Executive Committees] may determine by way of a special resolution at a General Meeting to not maintain specific item/s of common property for which it would otherwise be responsible.
The special resolution process involves a vote by those present and entitled to vote at a General Meeting (i.e. including proxies) where the outcome is determined not by way of a simple majority, but rather by a percentage calculation based on the units of entitlement (UOE) of those collectively voting, and that of those casting their vote for or against the motion.
A percentage of ≥75% in favour is required for a special resolution to pass, or conversely ≥25% against for it to fail.
Sect 62(3) of the NSW Strata Schemes Management Act (1996) applies, where it should be noted that the only proviso upon a vote in favour is that any decision must not “affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme”, whereupon I’d query the safety to residents of any windows having broken sash cords (?).
So in summary, based upon the information provided in your post the decision of your Executive Committee with regard to the O/C not repairing the sash cords of common windows is invalid.
PS – IF a special resolution under Sect 62(3) is at sometime passed, a By-Law is not additionally required unless the O/C wishes to mandate that windows be properly maintained by Lot Owners, and not be left in a damaged / broken state. Whale 1002hrs
Sandra – an interesting question, where if you’re in NSW I’d say YES on the basis that an Owners Corporation (O/C) may, by way of a special resolution passed at a General Meeting, permit an Owner to exclusively use a part of its common property OR grant them a licence to use that property; both methods may include conditions such as a permitted assignment to a lessee, fees payable to the O/C, and a process to review those.
Given the complications that can arise from exclusive use particularly if an O/C wishes to at some time revoke its earlier decision, I’d recommend a licence to the Owner/s of the commercial lots, worded in such as way as to permit conditional assignment to their lessees under Sect 65B of the NSW Strata Schemes Management Act (1996).
Your O/C will need some legal advice on this, as the conditions of any licence would need to be complementary to and not in conflict with the form of the Consent issued by Local Council, whose Legislation is in legal terms “superior” to (and therefore overrides) any granted by an O/C even if supported by a Special By-Law.