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Hi Urban & davidp,
I've never found the Office of Fair Trading to be particularly helpful, as the advice received too often depend upon who is giving it; precisely the same question can elicit different responses.
It's always best to abide by the Legislation, and in that way you're less likely to get into trouble; particularly if Resident/s object to compliance.
In that regard S48 of the NSW Strata Schemes Management Act (1996) states:
(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:
(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900 , in the Registrar-General’s office, and
(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.
(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.
I hope this helps.
To avoid disputes, it's advisable to only implement Special By-Laws after they've been properly Registered.
Your Strata Manager may be of the opinion that IF the balconies form part of the Lot/s and are not Common Property, then the responsibility for the maintenance and repair of the grouting and tiles is the Proprietors' responsibility.
In the absence of any Special By-Laws that your Plan may have to the contrary, the maintenance and repair of the original floor tiles is the responsibility of the Owners Corporation; just like those on other floors within the Lot.
Hi (again) bojooth,
The wall between your Unit and the one adjoining is Common Property, and the maintenance / repair of faults within it is the responsibility of your Owners Corporation.
However, in this case the problem that you're experiencing with the egress of water from the adjoining Unit into yours is not due to any fault within the common wall, as kitchen floors/walls don't have a waterproof membrane like the wet-areas within the Unit (bathroom/s, laundry)
In this instance, the fault has been identified as being with an appliance within that adjoining Unit – specifically a dishwasher. So, rectification of the problem, whether that be user-error or with the appliance itself, is the responsibility of the Owner of that Unit and/or the Managing Agent.
You should immediately contact that Owner (ideally in writing, with copies to the Building Manager and the E/C Secretary) to notify them of the problem as identified by your Building Manager, and insist that they take immediate action to identify the fault, and to remedy it.
With regard to liability for the damage to your Unit's floor coverings, technically the Owner of the adjoining Unit is liable, but as there's apparently no permanent damage, albeit due to your prompt actions, I'd leave that alone provided the leakage issue is promptly addressed.
Hi bojooth,
I think that you've really answered you own question when you observed that you purchased your Unit 5 years ago, and that the “spout” type drains from the Plan's balcony floors were there at that time; they've almost certainly been there since construction.
By all means speak with your Executive Committee (E/C) about the problem, and you may thereby ascertain what may be possible to remedy what is obviously a design fault; like perhaps extending / redirecting the “spout” outlets above your courtyard to the closest downpipe.
If you get a sympathetic response from your E/C, offer to draft an Item for inclusion on the Agenda of the next AGM about a possible remedy, and about an allocation of funds from the Sinking Fund to undertake the work.
If the E/C's response is unsympathetic, I'd draft the Agenda Item anyway and submit it to your Strata Manager with a CC to your E/C Secretary – in that way at least you'll get an opportunity to discuss the problem in a wider forum. In this scenario, you might consider canvassing other Owners who may have a similar problem with the “spouts”, and may support your Agenda Item at the AGM.
Hi BrianG – Jimmy's right, but try to keep resolution of your problem at the local level, as in my experience the formal mediation conducted by the NSW Office of Fair Trading is often superficial; all very frustrating!
Balcony drains are typically under-sized, and this combined with the grate at the opening often results in blockages — I'll bet that dirt and debris from your neighbour's pot plants has caused a blockage.
In any case and as Jimmy has said, any Strata Manager who's worth what you're Plan's paying them should be able to facilitate resolution of the problem.
That's great news for Residents / Owners in new Developments and for those that already have metering to individual Units, but I have a strong feeling that such Developments are in the minority, and after 30+ years in the Water Industry I know that Water Authorities have thereby succeeded in missing a boat that they never really wanted to catch.
Whilst Sydney Water and others may (again) “explore” frameworks whereby Owners Corporations (O/C) may retrofit sub-meters to individual Lots, that's just code for “we might tell you how it can be done and we might give you the meters, but you'll have to pay the plumber, you'll have to do the readings, and you'll have to do the billing”.
Access aside, readings aren't too difficult but with regard to billing, Lot Owners' Contributions are a product of the Plan's Budget and the fixed Units of Entitlement created when the Plan was Registered, and whilst the component of a Budget that relates to water usage for the Common Property may be off-set to account for Income received from Proprietors' Reimbursements (for their Lots' water usage), believe me that's not easy to manage OR to have resolved at an AGM; I've tried.
In the interests of Demand Management and more considered water use by households and others, I sincerely hope that some practical solution emerges from the latest deliberations, but deep-down I'm skeptical as that boat's long left the pier.
Regrettably, apart from the approach to your Owners Corporation (O/C) there's not much else that you can do! However your O/C is in a position to approach your neighbour about inspecting the balcony drainage (see next para) and about limiting “spillage” outside his/her Lot; particularly as that is affecting other residents and perhaps the Common Property (below).
Depending upon the age of your Building and the design of its balconies, there may be a drain through the bottom course of any bricks or render at the balcony edge, or better still a floor drain that's connected to the stormwater.
Constant hosing-down and watering (of pot plants) can cause dirt and debris to block these drains, or again depending upon the age of the building, any drain hole/s just through the brickwork can have a spout extension added, so that excess water emerges say 300mm away from the outer edge of the balcony, thereby missing yours.
Herewith my Submission to the NSW Government’s Review of the State’s Strata and Community Title Laws; NOT to in any way influence the nature or content of Submissions by others, but simply to raise awareness of the opportunity to make a Submission among those in the Strata Community via https://www.openforum.com.au/strata
Response to Q1:
Strata & Community Plans have increasing numbers of tenants, so there needs to be a change in the convoluted process whereby an Owners Corporation (O/C) can enforce compliance with its By-Laws, and the situation where an O/C cannot presently take action against tenants in Breach in the Tenancy Division of the Consumer Trader & Tenancy Tribunal (CTTT) where Tenancy Agreements can be terminated, as opposed to in the Strata Division where fines are small and infrequently applied, where tenants’ compliance with Orders is rare, and where follow-up / enforcement by the CTTT is infrequent and ineffective.
Permit Owners Corporations to manage their Plan and hold them accountable for doing that!
Response to Q 2:
(i) Levy amounts – The current requirement for Sinking Fund Plans(SFP) has failed because there is no penalty applicable to Planswho don’t have a SFP, and because many of the Organisationswho prepare them produce little more than a “shell document”with some arbitrary amounts “plugged –in”.
There needs to be some legislated “rules” around the minimum amounts of Levies that must be raised by Owners Corporations,where a formula (for example) takes into consideration thePlan’s location (e.g. sea-side), its construction materials, its age, and movements in the CPI all factored into a minimumLevy amount ($) per Unit of Entitlement.
(ii) Property Managers / Agents – need training in or have knowledge of the tenancy aspects of Strata Legislation, such as the requirement to include By-Laws with Lease Agreements, S119 Notifications to the O/C, and the Tenant Disclosure Requirements of the Regulation in the context of violent incidents involving tenants, and the Legislation needs toformalise a legal relationship between Property Managers andthe Owners Corporations of the Plans into which they placetenants (not just between Property Managers & Landlords)
Response to Q 3:
How long is a piece of string?
(i) Develop a “core” set of By-Laws that all Strata and CommunityPlans MUST adopt, followed by a set of “model” or suggestedBy-Laws that Plans may optionally adopt in accordance withneed / relevance.
(ii) Attach penalties (unit based) to each of the above, and allow Owners Corporation to develop and register their own Special By-Laws in accordance with the provisions of the current State Legislation, and permit them to also include their own “reasonable” Fees as a penalty which should bear relativity tohose set in the Legislation OR perhaps be limited by thatLegislation (e.g. to 2 penalty units; currently $220)
(iv) Allow the Executive Committees of Owners Corporations (O/C) to approve the issue of Breach Advisory Notices (1), followed byNotices to Comply only if the Breach continues.
(v) Permit Owners Corporations to invoice penalty amounts directlyto those in Breach of By-Laws (Core, Adopted, and Special), andallow those in Breach to appeal to the CTTT – who would rulebased solely upon whether or not a By-Law had been Breached, and whether or not the legislated procedures (as proposed) hadbeen followed absolutely by the O/C.
The costs to lodge an appeal should be increased so as to limitfrivolous actions, the O/C should be required to reimburse thosecosts to the Appellant if their appeal is upheld, and if the appealis lost the Legislation should include enforcement action to ensure payment to the O/C (e.g. via the State Debt RecoverOffice).
Response to Q4
The Dispute / Breach of By-Laws handling process should include:
- mandatory mediation at the Plan level (e.g. between those allegedly in Breach, the Accuser, an Executive Committee Rep, and the Strata Manager), followed by the issue of a written record of what (if anything) was agreed — and if the Breach continues;
- the issue of a written Advice of the alleged Breaches, — and if the Breach continues;
- the authorised issuing of a Notice to Comply – and if the Breach continues;
- the authorised issuing of a Penalty Invoice to the person/s in Beach by the O/C;
- optionally, and Appeal to the CTTT by the person/s in Breach;
- enforcement action via the SDRO if the Appeal is lost
I remember the original post, and it's prompted me to now include an objective statement on Lots' condition, purely from a common property / OC's perspective, under Item 18 (other items) in the S109 Certificates that I prepare for our Plan.
In that way, the Solicitor/Conveyancer acting for the Purchaser/s can appraise their clients accordingly.
Michelle, others on this Forum have suggested (politely) that I’m an idealist, and whilst that may be factual, I do admit to being someone who actively seeks a compromise that’s both equitable, sustainable, and in accordance with Strata Law.
That being my objective, I’ll suggest to you that even though your O/C may well be entirely responsible for the maintenance and repair of the sunshades by virtue of the fact that they’re part of the original construction, they’ve been in place for so long, and they could be considered additions to the Common Property, a compromise is in order.
That compromise could be a Motion on the Agenda for your next General Meeting (or for an Extraordinary Meeting if timing is an issue) that proposes a one-off sharing of costs between the O/C and those Proprietors who wish to replace the sunshades at the front of their Units / Lots, and a further provision that declares those items to be “Lot Owners’ Fixtures” once replaced. The ratio of that shared cost arrangement could be whatever is seen as fair, but in the circumstances you describe 50:50 seems appropriate to me.
Whatever the ratio, that mechanism could resolve the current impasse, put a lid on the proverbial “can of worms”, and ensure the consistency of the replacement sunshades (e.g. colour/design) in terms of maintaining the appearance of the Common Property; a positive for the O/C.
The quid-pro-quo for those Proprietors involved would be that whilst they’d be responsible for the on-going maintenance / repairs / replacements of the sunshades, “Lot Owners Fixtures” are usually covered under Strata Building Insurance Policies where the “loss” arises from “defined events” (e.g. storm damage).
I hope this helps!
If possible, check your Registered Strata Plan where common property walls will be drawn as thicker lines, with thinner lines just above or below showing individual measurements / distances.
I’m sure you’ll find that both brackets are on a common property wall, and this, together with the fact that the sunshades were installed at the time of your building'’s construction makes the matter of their replacement the responsibility of your Owners Corporation.
Low flow shower heads can be more trouble than they're worth in older blocks, where they're incompatible with gravity-feed hotwater systems and place additional back pressure on older pipework.
Human dynamics is such that you'll perceive that the water is cooler simply because it's aerated, and will therefore increase the feed of hot water and consequently your costs.
If you really want to save the 10 litres per minute that a low flow showerhead will achieve, keep your normal showerhead, have a better shower for half the time, and enjoy it !!
macpost – your Strata Manager has certainly made things difficult, especially as most Strata Management Agency Agreements delegate the responsibility for issuing Notices to Comply (NTC) to the Strata Manager (SM).
So there may have been no need for an Executive Committee Meeting, or even if there is no delegation of that authority to the SM, the Agenda need only have been sent to Executive Committee Members, with a copy posted on the Owners Corporation's Notice Board for all and sundry!
Nonetheless, a way forward would be to first check the delegations under the terms of that Strata Management Agency Agreement, and if the issue of a NTC is delegated, then cancel the Executive Committee Meeting (ECM) and ask your SM to issue the NTC.
If there is no delegation, then it's difficult for anything other than a specifically worded Motion at an ECM to authorise the issue of a specifically worded NTC.
The Meeting could resolve to amend the Motion by substituting the reference to a “named individual” with a reference to “the Occupant of Lot #” ; that's quite acceptable so long as the intent of the original Motion is not altered, and the Minutes of the Meeting record the fact that the Motion was amended.
Your Owners Corporation may need to review / amend the delegations of its Strata Manager at the next General Meeting, and you will need a Motion on the Agenda to achieve that.
Rydel – As Jimmy hasn’t responded as yet, I’ll offer an opinion.
The previous Proprietor who completed the upstairs renovations should have received the consent of your Owners Corporation (O/C) before undertaking those works, and IF that procedure was followed, it’s usual for the O/C’s consent to include a provision to the effect that all ongoing maintenance and repairs to the items comprising the renovations is the responsibility of the Proprietor of the Lot (i.e including subsequent Proprietor/s).
This procedure is in place to safeguard the (structural) integrity of the Common Property during the renovation process and additionally to protect the O/C from any future expense in circumstances where, as examples, the original “developer-quality” tiles may have been replaced by a Proprietor with high-quality “expensive” tiles, or where the waterproofing has not been completed by a Contractor known to and/or engaged by the O/C.
All the above is dependent upon the Proprietor and your O/C following the correct procedures, so your first inquiry should be of your Strata Manager concerning the existence or otherwise of evidence supporting those procedures.
If as often happens, the consent of the O/C was neither sought nor given, then the repairs to and the replacement of the waterproofing and tiles on Common Property areas such as the floor and non-internal walls within the renovated area are, by default, the responsibility of the O/C.
Repairs and replacements to tiles and waterproofing to other areas of the bathroom are the responsibility of the current Proprietor of the Lot.