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Just to clarify and as much as I’d like to see S119 apply to all rentals, that section refers to notifications of leases, and they’re not required for properties that can be broadly classified as being self-contained, that is with its own kitchen and bathroom and some rudimentary furnishings.
So it’s possible for Owners of Strata Units in residential buildings to partially furnish those, to make them available to “visitors”, and to thereby avoid providing the Owners Corporation with any notification under S119.
Hopefully this loophole will also be closed by the proposed amendments to NSW Strata Laws.
Light illuminance is measured in Lux, and the amount of light perceptible by the human eye is measured in lumens.
In your Plan’s hallway, the amount of perceptible light is influenced by a number of factors including the height of the ceiling, the colour of the walls / floor, and the spread of light emitted by the light fixture; complicated!
The use of LED fixtures further complicates matters as the spread of light is quite narrow, the colour of the light differs (e.g. “cool” or “bright white”), the wattage figures quoted don’t easily relate to fluorescent or incandescent globes, and manufacturers quote vastly different Lux figures for fittings of the same wattage.
In all those circumstances I probably shouldn’t do this, but …. the standard for hallways where people need just enough light to move around safely (possibly your quoted “mood” lighting) is around 40 Lux, the number of light fixtures necessary to produce that can be calculated from the formula (Lux level * area) / lumens per fixture, and for a hallway that’s 3m wide that’s around one (1) 15W LED downlight each 3m of its length.
I think I’ve given myself a headache, but if you’re really concerned about your Plan’s new hallway lighting perhaps approach your Executive Committee about having the actual illuminance professionally assessed against the 40 Lux (approx) required.
It’s not a State Government policy issue, but rather is symptomatic of what happens when pressure (sorry) from developers forces Utilities such as Sydney Water to supply its services to multi-unit developments that tower above allotments where a few single dwellings once stood.
Electricity supply utilities can require these developers to provide for sub-stations within their developments and Councils require stormwater detention systems, but Utilities providing gas, water, and sewerage services are largely constrained by the limitations of their in-ground infrastructure.
As an aside but for the very same reasons, the peak dry-weather flows in Greater Sydney’s sewerage system were nearing design system capacities 12 years ago, and that design is four (4) times the expected maximum – so expect those problems to surface some time soon.
Anyway, back to your immediate problems. Sydney Water’s Operating License permits it to supply its services at levels below those given in its Standards of Service provided it negotiates a Service Agreement with affected customers.
That Service Agreement should give you and other residents some recourse, and may even secure some assistance with overcoming the issues that you’ve mentioned in your post, including some medium term forecasts.
Your Owners Corporation could act as the conduit (sorry again) to initiate discussions on that Service Agreement, so I’d suggest having a representative contact Sydney Water to get things moving.
….and despite the fact that in addition to a “Welcome Pack” I’ve made downloads of our By-Laws / Special By-Laws and a pro-forma S119 Notification available under a “Landlords & Agents” page on our Plan’s Website, most STILL don’t comply with the Law!
I live for the day when under the (new) Laws, Owners Corporation’s will be able to issue their own penalty notices, retain the net revenue, and be very soundly beaten-up by the Office of Fair Trading and the Civil Courts if they themselves don’t follow the prescribed procedures and/or otherwise get it wrong!
Unless your Owners Corporation (O/C) has in the past resolved to create and register a Special By-Law covering Proprietors’ responsibility for the maintenance, repair, and replacement of air-conditioning systems serving only their lots, OR has included a statement of responsibility in any consent issued by it to the Proprietor when the system was originally installed, then…
as some components of ducted systems including the ducting itself and the zone motors are located in the roof void, and that area’s Common Property, the O/C is responsible for those and any indeed any other components of the system/s that are located outside the cubic air-space of the Lot.
So far as the insurance claim and the excess is concerned, the acceptance of a claim under fusion or any other component of your O/C’s Policy is entirely at the discretion of its Insurer, and from what you’ve advised in your post that’s the approach that your Strata Manager (SM) has taken. Again, in the absence of a Special By-Law or a statement of responsibility to the contrary, the excess on insurance claims is also payable by the O/C.
Further insurance claims of this (and other) types may well result in increased premiums and/or a requirement for evidence of a regular maintenance regime for all air-conditioning systems being imposed by your Plan’s Insurer, but of greater impact is the possibility that your O/C’s responsibility could extend to the costs of replacing all Proprietors’ ducted air-conditioning systems if/when those fail, simply because the systems’ components are outside the Lot/s.
That’s precisely why in my opinion your O/C needs to ensure that it enforces any Special By-Law or individual consents that may be in place, and if as I suspect none exists and if other Owners feel as you do, then your O/C needs to quickly put an appropriately worded Special By-Law in place by way of an item for consideration (by way of a Special Resolution) by Proprietors at a General Meeting; speak with your SM about the timing and the voting requirements for that.
In NSW, any By-Law that’s required in addition to the standard or model by-laws that are included as Schedules to the Strata Schemes Management Act & the Regulation is called a “Special By-Law”.
With regard with “how all this happens”, the Owners Corporation’s (O/C) consent for the awning, which is apparently an addition to the Common Property in the instance you have given, needs to be given by ≥75% of Owners present personally or by proxy at a General Meeting voting in favour.
In the instance you reference, that consent by the Owners Corporation together with any approvals required by the Local Council is all that’s necessary for the Owner concerned to go ahead with the awning.
However if for example your O/C is anticipating future requests for the addition of awnings by other Owners and it wants to avoid each of those coming to a General Meeting, then it can draft a Special By-Law that’s consistent with the wording of its initial consent and apply that as a “blanket consent” to those future requests. By the way, both the O/C’s consent any matching Special By-Law needs to (at least) provide for both prior Council approval when required, and who it is that will be responsible for the on-going maintenance of that structure; usually the Owner from time-to-time of the Lot.
If someone on your O/C is capable of wording both the consent (in the minutes) and the matching Special By-Law in explicit and unambiguous plain language (not faux legalese), then that wording can be shown on or included as an attachment to this Form, and be submitted to NSW Land & Property Information for Registration on your Plan’s Strata Title for a Fee of $102.
If there’s nobody confident of being able to properly word the Special By-Law, including an explanation of those provisions that form parts of the O/C’s consent, then just use the consent method for each individual addition of the type now proposed, or have the documents prepared by a specialist Strata Lawyer (there’s one who’s a sponsor of this Forum and whose details appear on the banner at the top of FlatChat’s Homepage).
Yes there is in NSW (and I suspect in other States / Territories), under S47 of the Property, Stock and Business Agents Act (2002), and Strata Managers (SM) usually show their commissions etc in a “Disclosure Schedule” forming part of the Strata Management Agency Agreement that they are required to have with Owners Corporations as their Clients.
On the basis of my experience, the SM’s commission on Strata Insurance is typically 20%, so considering your SM would likely generate more Insurance of that type and would therefore achieve a lower base premium than would a generalist Broker, that level of commission would likely account for the difference in the quotations that you’ve received.
Kangaroo….
Whale said …..With regard to your off-topic query…in NSW, By-Laws are the standard ones listed in Schedule 1 to the Strata Schemes Management Act (SCMA) and in Schedule 3 to the Regulation (2010) that apply to all Plans that were Registered at the time when those Laws were gazetted, and which need to adopted in full or in part by those since Registered.
Special By-Laws are those specially resolved (i.e. ≥75% in favour) by Owners at a General Meeting in accordance with Sect 47 of the SCMA and subsequently Registered in order to address a Plan-specific need or requirement.
….and further, don’t get too hung up by the term “special” as I believe the drafters of Legislation, who are obliged to have a limited vocabulary and no knowledge of punctuation, were merely trying to use that word as a means of differentiation.
In terms of By-Laws, “special” is used to differentiate between the standard or model By-Laws provided in the Strata Schemes Management Act (SCMA) and Regulation and any that have been decided upon by the Owners Corporation (O/C) for plan-specific reasons.
With regard to resolutions of the O/C, again “special” is used to differentiate between those for ordinary matters and those for something extraordinary, and as the latter term had already been used elsewhere in the SCMA, those vocabulary and punctuation challenged drafters were stuck with “special”.
Seriously though, I don’t think there’s any other link between By-Laws and Resolutions of the “special” variety, and that it’s as you say “just a code word”.
I’ll stand corrected, but with reference to the NSW SCMA the only occasions that I’m aware of where a Special Resolution is required are to:
- Remove an Executive Committee member
- Make, revoke or change by laws
- Licence Common Property to Proprietors
- Give consent to Proprietors change to the Common Property
- Decide not to maintain or repair Common Property
- Add, alter, or change the Common Property
- Offer 10% discount on early levy contributions
- Pay a Proprietor for transfer or lease of Common Property
Similarly, Unanimous Resolutions are required to:
- Distribute surplus funds to Proprietors
- Request CTTT (Adjudicator) to exempt the Plan from the requirement to insure the Common Property
- Not to establish a Sinking Fund (2 Lot Plans only)
- Amend or revoke the effect of an Order (before application to the CTTT)
- Revoke Exclusive use By-Laws (with the consent of the beneficiary)
As I said, there may be others like terminating the Strata Plan under the NSW Strata Schemes (Freehold Development) Act, but now my head hurts!!
SlapShot – you can find your original posts and responses HERE
@JimmyT said:However, there is a grey area which I am currently investigating – does non-compliance with by-laws constitute a breach of the lease agreement?
I agree that it’s a grey area, but can add that when I represented our Owners Corporation (O/C) at the Consumer, Trader, and Tenancy Tribunal (CTTT) on an occasion when we had issued tenants with a Notice to Comply, the Adjudicator acknowledged that the tenants had breached the By-Law (which infers a requirement to comply), but dismissed the matter as the tenants claimed that they hadn’t been provided with a copy of those By-Laws by their Property Manager; if body-language was any indication, I believed them.
So the O/C then lodged a Complaint against the Property Manager and their Licensee with the Office of Fair Trading under Cl 191 (a)+(c) of the Property, Stock and Business Agents Act, and that too was dismissed because the Investigator determined that the O/C did not have a documented business relationship with the Property Manager or with their Agency, and that it therefore had no grounds to lodge a complaint.
Not a good month, but more lessons learnt!!
I’ve since included our Plan’s By-Laws and Special By-Laws as a download on our Plan’s website, and so far as I’m aware only one (1) of the six (6) Agencies whose Property Managers place permanent tenants in our Plan now provides that information; so the Executive Committee does, together with the “Welcome Letter” that I’ve mentioned in past posts.
As the bird-keepers are tenants, there are also two relevant clauses in Residential Tenancy Agreements (NSW).
Clause 35 requires tenants to comply with your Plan’s By-Laws which links with Jimmy T’s advice, and clause 43 states that “the tenant agrees not to keep animals on the residential premises without obtaining the landlord’s consent“.
As your Strata Managers should know who your neighbour’s Property Manager (Rental Agent) is, a phone call from them to that Agent about their tenants breaching Clauses 35 & 43 of their Rental Agreement may also get the desired result.
MickiB – what your Executive Committee (E/C) has done on behalf of the Owners Corporation is to alter the Common Property, or maybe in the opinion of the Chairman to improve the Common Property.
The E/C is quite entitled to do that …… provided it first puts it’s proposal as a Special Resolution to a General Meeting of the Owners Corporation, where a minimum 75% of those Owners in attendance in person or by proxy need to vote in favour in order to pass the proposal, or conversely 25% can vote it down.
Refer your E/C Chairman to clause 65a of the NSW Strata Schemes Management Act (1996), and politely ask when the Secretary plans to prepare the DA, to convene the General Meeting, and when the pergola is going to put back in its original location in the interim.
Bev29 – Just to clarify, by the term “emergency meeting” I assume that you mean a General Meeting of the Owners Corporation, and that by “stacked the EC” you mean that the Member you’re referring to used the proxies of other Proprietors given in his favour to vote certain friends of his onto the Executive Committee (E/C) after they nominated for the positions made vacant by the Meeting, and which were voted upon and fiilled in accordance with an Item on the Meeting Agenda.
If all that’s correct then it’s legal, and otherwise it is not.
On the assumption that it is correct, then the best option for you and like-minded Proprietors would be to gather as much support as possible to requisition the Secretary of the E/C to convene a General Meeting of the Owners Corporation, to place your Motion on the Agenda, and for those like-minded Proprietors to both attend the Meeting personally and entice as many others as possible to also attend, or to at least obtain the proxies of others of a like-mind who cannot attend.
You will have to get the numbers, which in the first instance in order to successfully requisition the Secretary is a minimum 25% of the Proprietors in your Plan by unit entitlement; in other words if the total unit entitlement (the aggregate) of all Lots in your Plan is 100, then you need like-minded Proprietors whose Lots together total a minimum 25 units of entitlement.
In the second instance, you’ll need the attendance either personally or by proxy of sufficient like-minded Proprietors to nominate for membership of the E/C (max 9), and to comprise a majority of those in attendance (again including the Member and his proxies) when the vote for E/C Membership is taken.
Lastly and with regard to the vote, if you and your like-minded “team” aren’t confident of success by a simple majority vote, then you can request a poll vote where the Lot units of entitlement of those in attendance is used to decide the outcome (in this hypothetical example, 51).