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We seem to have been diverted to concentrating upon whether or not the Owners Corporation’s (O/C) insurers will accept a claim for the costs of repairing its common property roof gutters and for repairing consequential damage to Keep Calm‘s motor vehicle, and who if anyone has been negligent.
The salient point in my opinion remains the O/C’s unfettered responsibility to properly maintain, repair, and replace its common property and to repair any damage consequently caused by a failure of any component of that property.
As I earlier observed, the decision to lodge an insurance claim is at the discretion of the O/C and irrespective of whether or not that’s accepted by the insurer, the O/C’s responsibilities remain.
If negligence is an issue, then provided Keep Calm‘s motor vehicle was legally / correctly parked (e.g. not contrary to a By-Law) that too is a matter for resolution between the O/C and its insurer, albeit possibly compromised from the O/C’s perspective by it seeking more frequent cleaning of weeds from its roof gutters after the event (ref: post #12).
So returning to Austman‘s point (post #15), even if two (2) insurers decline to accept a claim by the O/C for reasons of negligence or anything else, the O/C’s responsibilities aren’t diminished and Keep Calm‘s claim against it should be tested as earlier suggested in a Community Justice Centre and if necessary in a Local Court, particularly due to the O/C’s tacit admission of negligence arising from its acknowledgement that unattended weed growth placed extra weight and therefore stress on the roof gutter and its supports.
Back on topic…. I’m inclined to the opinion that the recent works to relocate pipework on another carspace add weight to Keep Calm‘s argument to have the O/C perform those same works at his carspace, and YES photographic evidence showing both of the above would assist at Mediation and afterwards at the NSW Civil & Administrative Tribunal (NCAT) if that proves necessary.
PS – I’m suggesting that the matter of a monetary claim against the O/C is a civil matter to be pursued in a “real” court, and that carspace access is a strata matter to be taken if necessary to the NCAT.
Keep Calm – insurance and proof of negligence is irrelevant, as under the provisions of Sect 62 of the NSW Strata Schemes Management Act (1996) Owners Corporations (O/C) are entirely responsible without limitation for the proper maintenance and repair of their common property, which the balcony gutters at your Plan that dislodged and fell on your motor vehicle form a part.
So irrespective of whether or not your O/C’s insurers accept a claim for repairs to the gutters and your motor vehicle, it (the O/C) remains responsible for making those repairs, so you have a couple of options in my opinion:
- Make a formal claim for the costs of the repairs to your motor vehicle against the O/C, and if necessary follow that with a Letter of Demand, followed by Mediation through a Community Justice Centre and as precursor to Claim for monetary damages in the Local Court.
- If you hold insurance for your motor vehicle, then speak with that insurer about its repair on the basis of a subsequent claim by them against the O/C just as would occur if the damage was caused by a road-related incident.
Regarding the carspace, the current Australian Standard cited by Austman (post #2) was current in 2004, but if the Registration of your Plan predates that, then speak with your Local Council about the Standard then applicable.
I assume that you’re referring to a Strata Management Agency Agreement, but before we go too much further could you please confirm the State / Territory in which your property is located?
chesswood – unless your Plan has a properly registered special by-law that requires all Owners to maintain plantings within the cubic air space of their Lots, then its Executive Committee (E/C) has no authority to require you or any other Owner to remove their plants.
It’s impractical for an Owner to ensure that below-ground parts of any plantings remain withing the cubic air space of their Lot, but the established principle that applies to any necessary trimming of above-ground parts is that the Owners Corporation (O/C) arranges for the work and pays a proportionate share of the cost involved, as calculated from the plant’s overall height and that part that’s above the cubic air space of the Lot concerned.
As an example, the costs trimming of a tree within your Lot with a 4.4m high canopy would be split 50:50 between you and your O/C.
That said, it would be ill-advised in my opinion for any Owner to plant anything that could at some future time contribute to or cause damage to their property or to that for which the Owners Corporation is responsible, so perhaps make your E/C an offer whereby you’ll trim plantings to below the upper limit of your Lot’s cubic air space where that won’t adversely affect their appearance or stability, and that you’ll accept a negotiated application when necessary of the established principle that I’ve mentioned to any that remain.
Regarding the N.C.A.T., I’m not sure that Adjudicators favour either party, but rather their decisions seem to depend upon at which one their spinning chocolate-wheel stops
. Gees Costa; it’s only been 72 hours since your first post on this topic, and speaking for myself, unless a query is atypical or particularly detailed I usually wait for as few days so as to give others a chance to respond!
Anyway as you’re obviously anxious, my interpretation of Sch.3, Cl.14 and common courtesy is that you should formally advise the Secretary of your intention to attend and of the Motions you wish to speak to, and as soon as the Meeting is convened ask for a vote by the Members to authorise your desire to address it; that is for a “blanket” authorisation to address the Meeting with regard to the Motions previously advised.
Provided your Owners Corporation has voted to have “notices” provided by e-mail to those Owners who have accounts and have provided their details, and those papers are received at least 7 days in advance of the Meeting, then YES that’s how it works.
But it doesn’t have to….
After discussions to determine the availability of Executive Committee Members I always issue all Owners with a Preliminary Notice six (6) weeks in advance so as to provide the date, time, and venue for each General Meeting (i.e. Annual & Extraordinary) and to call for any Motions to be submitted within 21 days, but as that’s optional, perhaps submit a Motion for inclusion on the Agenda for a vote by a simple majority at your next A.G.M. to thereafter make a Preliminary Notice mandatory for your Owners Corporation.
James – I can’t help wondering how it is that a Strata Managing Agent who was statutorily appointed following your Application to the Tribunal attended mediation presumably in support of the other Owner (?).
Anyway, Sect.62 of the NSW Strata Schemes Management Act (SCMA) requires that Owners Corporations (O/C) properly maintain and repair common property, that in the circumstances that you’ve describe yours didn’t do, because you arranged for some repairs yourself, it would seem without prior written consent from anyone who was empowered to provide it.
So have a look at Chapter 5 of the SCMA and particularly Part 4, and see if you can find any provision under which the Tribunal can Order an O/C to reimburse an Owner in the circumstances described (above), and particularly so where any consent of the former would likely have required a special resolution that the Tribunal may require an O/C to vote upon in that way after the fact, but cannot itself rule upon or make an Order that would bring into effect the same outcome as such a vote would if properly resolved.
Then… perhaps consider who will be funding the O/C’s costs to attend the Tribunal, and the fact that it rarely (if ever) awards costs to either party.
Then… think about a second legal opinion!
James – the best outcome for you would in my opinion be for mediation to result in your adjoining lot owner agreeing to reimburse the approx. $3K that represents 50% of the costs that you incurred to attend to works that would otherwise be the responsibility of the Owners Corporation (O/C).
Otherwise, I don’t believe that you could take the matter to the NSW Civil & Administrative Tribunal (NCAT) due to its statutory appointment of a Strata Managing Agent, who in both legal and practicle terms is now the O/C of your Plan.
So unless the NCAT’s terms of appointment for the Strata Managing Agent specifically sets out what’s required of them, and that would be unusual, then they have carte blanche to, without prior referral to you and your neighbouring lot owner, do whatever they consider is necessary in order to bring your O/C into compliance with the Act with or without a formal General Meeting.
Despite your objectives, that I can appreciate, the Strata Managing Agent’s objectives likely won’t be limited to setting contributions at a level that they consider is sufficient to raise the required funds to properly maintain the common property, as after all an O/C’s responsibilities go far beyond that.
I hope that gives you some insight to the situation that you’ve stumbled into, albeit with the best of intentions and encouragement from worthless permissions and verbal approvals.
So how best to proceed?
As I said successful mediation is the best outcome, but if that doesn’t eventuate or if your neighbour renigs, then I’d approach the Strata Managing Agent with a formal /written request for entire cost of O/C works for which you alone have paid to be recorded as a credit towards your future contributions (levies).
That’s somewhat complicated I agree, but less so than the Strata Managing Agent, who remember IS the O/C, automously determining to raise those same funds and more from the proprietors of the Plan in circumstances where one of those (i.e. you) has already paid some of those.
In conclusion, I’ve probably painted a worst case scenario with regard to how a statutorily appointed Strata Managing Agent can elect to perform their duties, when how yours may act could depend upon a number factors including how much work’s on their table, how much of a mess your Plan’s in, how many of your O/C’s functions are out of control, and how urgently all of those need to be reigned-in.
Isn’t it strange that every hole in the ground is now described as a “sink hole”!
Notwithstanding that if the paved area is part of your lot and/or if the stormwater pipe serves only your lot then the repairs could actually be your responsibility, the Owners Corporation’s building insurance covers only defined events with the emphasis being on that last word (i.e. “event”), which implies a coverage for point-in-time incidents and not for subsidence arising from the gradual deterioration of an asset such as the stormwater pipe in your 24 year old Plan.
So in my opinion your Strata Manager’s advice is correct, although that’s not to say that the Owners Corporation could not instruct them to submit a claim to its Insurer for determination.
Schedule 2 Sect 31 applies, and specifically Clauses 2 & 3 where it states:
(2) A general meeting of an owners corporation (in this clause referred to as an “extraordinary general meeting” ), which is not an annual general meeting, may be convened by the executive committee at any time.
(3) The secretary of an executive committee or, in the secretary’s absence, any member of the executive committee must convene an extraordinary general meeting as soon as practicable after receiving a requisition for such a meeting signed by one or more persons entitled to vote in respect of one or more lots, the unit entitlement or the sum of the unit entitlements of which is at least one-quarter of the aggregate unit entitlements.
Part 3 of the Act prescribes how budgets and resultant levy contributions are calculated and raised, and whilst Sect 75 refers to these matters being determined at each Annual General Meeting, that’s merely because they’re nominally annual deposits, and it’s permissible to recalculate those in the circumstances that you’ve described and to resolve to amend the amounts at an Extraordinary General Meeting.
Just to confirm that same procedure exists in NSW, where the Executive Committee (secretary or the strata managing agent if so delegated) can convene an Extraordinary General Meeting (EGM) to consider a resolution (determined by a simple majority vote) to amend contributions to the sinking fund on and from a specified date, or if the E/C is not amenable then drfingerless and like-minded owners who together hold ≥25% of the aggregate units of entitlement for the scheme can petition the Secretary to convene such a Meeting as soon as practicable.
Even though the EGM may be convened to consider one (1) motion only, the same requirements regarding the provision of an Agenda to all owners and similarly the recording & distribution of Minutes for an Annual General Meeting apply.
James – I’m inclined to agree with you about your decision to purchase being naive, as was your decision to undertake and pay for any works that should have been paid for from funds held in your Owners Corporation’s (O/C) accounts.
The easiest answers first…….
- Regarding the sinking fund (or the probable absence thereof), a two (2) lot scheme is exempted from having a sinking fund if the buildings comprising each of the lots are physically detached, and each building is contained wholly within the boundaries of its lot, and the O/C (i.e. the two owners) has unanimously resolved at a General Meeting not to have that fund, and;
- That same criteria applies to the requirement for an O/C to hold building insurance, so it could be that under-insurance is not an issue in your situation if the above has been unanimously resolved, and;
- There’s no requirement for a two (2) lot scheme to have its accounts audited.
Now I’m a little confused about who it is that you expect to pay half of your costs particularly in circumstances where the O/C, who you indicate may have some funds in its accounts, is in fact you and your neighbouring owner.
So I have some questions to assist in further responses by me and others:
- What half of your expense has been paid – for the back boundary fence, for the gyprock, or both, and does your reference to “my strata plan neighbours” mean those in the adjoining villa or in a different property on the other side of the back boundary fence?
- Who if anyone took over the management of your scheme after the cessation of self-management in 1995?
- Is there currently a strata managing agent for your scheme; it sounds like one was compulsorily appointed, and if that’s the case what were the terms of any appointment and is it ongoing?
- What exactly are you hoping to resolve post mediation?
I’m astounded that after more than two (2) years of reasonably detailed and regular commentary from the NSW State Government, the responsible Minister/s, and their Agencies about progress of much needed reforms to the State’s strata management legislation, and the final passing of the Strata Schemes Management Bill (2015), that the strata industry’s professional association has been lobbying for further prevarication “in order to allow the sector time to update its processes and procedures, to train staff, and to educate owners corporations on changes to their obligations”.
How do these self-titled strata industry professionals expect to be taken seriously when after all this notice of the anticipated changes and ample opportunity for input, that the only process or procedure that I see they’ve so far managed to implement involves the form of their standard Strata Management Agency Agreement, where any negative impacts upon the commission that they’ve traditionally received on strata plans’ building insurance can be off-set by an equivalent increase in their services fee?
They’re kidding right?
jpsblue75 – posting the same topic to different forums serves to confuse and won’t result in different advice!
Reference your previous posts HERE, where you received some helpful and informative advice about how best to proceed, and I’d summarise that by concluding that if your Lawyer has as you state handled and reported the progressive payment of your arrears to your Owners Corporation (O/C), then its Strata Manager can seek the support of your Executive Committee to pursue legal action against you until those proverbial cows come home, and it will amount to absolutely nothing except unnecessary expenditure of O/C’s funds, that they’ll have fun explaining.
I can understand why this whole saga would cause you grief, but as difficult as it may be, just keep making regular payments against your debt by any means other than cash, ensure that you and/or your Lawyer keeps an accurate record of those until your debt is resolved, and let your Strata Manager whistle dixie!