› Flat Chat Strata Forum › Common Property › CP and the Strata Committee › Current Page
- This topic has 18 replies, 6 voices, and was last updated 11 years, 1 month ago by .
-
CreatorTopic
-
17/09/2013 at 9:21 pm #9042
Our balcony has some tiling issues which has resulted in leaks to the units below. This has been going on for years and We have always cooperated with access for inspections, quotes and minor repairs. The body corporate arranged testing for persistent leakage, which indicated removing and replacing some tiles. They then went ahead and arranged quotes for retiling our whole balcony.
at the AGM, the decision was made to retile the whole balcony. This was not our preferred option but we were outvoted and that is fine.
Our issue is access to the balcony. The balcony is almost a wrap around of our whole unit. The project is large and would take a minimum of a fortnight. Providing internal access would mean opening up our home for this entire period with the consequent mess also of concrete etc in every room ( due to the Layout, every room opens onto the balcony). We have a baby who has been sick for the last two months, and we both have jobs. Our request is that access be arranged externally. this would mean a scissor lift, we are on the second floor. Are we allowed to insist on this?
we are in NSW
-
CreatorTopic
-
AuthorReplies
-
18/09/2013 at 1:31 pm #19489
In NSW Sect.65 of the Strata Schemes Management Act (SCMA) allows an Owners Corporation (O/C) to “enter on any part of the parcel for the purpose of carrying out work ….. (that’s) required to be carried out by the Owners Corporation in accordance with this Act“, and as the work involved is required of your O/C under its obligation under Sect.62 of the SCMA to “maintain and keep in a state of good and serviceable repair the Common Property“, your O/C can legally enter your Unit in order for it to access its Common Property.
Now… that’s not to conclude that you don’t have rights to place reasonable conditions upon that access, such as perhaps requesting that cover sheets be put down and/or that all equipment and materials be conveyed to the balcony area at the one time and in your presence as opposed to on an as-needs basis, or that access be gained externally as you have suggested in your post.
So try to negotiate suitable conditions and/or alternatives for access to your balcony with your O/C, and in the unlikely event that those are unsuccessful, then simply refuse access and that will force your O/C into formal mediation and possibly to adjudication – where personally, I don’t consider that any person acting reasonably could disagree with your position.
18/09/2013 at 3:44 pm #19492I believe not, as all they are asking for is to go through your lot to access common property on the other side of your lot that is accessible from the other side, you may have exclusive use to the common property but it is outside your lot not inside and is accessible from the other side.
As an owner you are paying your share of the cost hence allowing them access would save you ….but no one can force you to let them have an easier access by going through your lot.
What are next? are they going to paint the outside of the building through your windows to save on scaffolding?
We all on this site have opinions do not trust anyone seek qualified advice if you do not want them walking through your lot.
18/09/2013 at 4:00 pm #19493Thank you, that is very helpful.
just as an aside. We have grave concerns about the choice of contractor. It is someone known to one of the owners, and a very cheap quote. Researching the company suggests that they are not even waterproofers, but flooring specialists, in particular timber.
again we were outvoted at the AGM based on cost. We are not opposed to tiling but would prefer a more appropriate person. Is there anything we can do to register our concerns and have them considered? ( after the quote was accepted at the AGM)
18/09/2013 at 6:34 pm #19494@leif said:
… no one can force you to let them have an easier access by going through your lot.That’s not true (see Whale’s posting below). If the circumstances demand it, the CTTT certainly can issue an order forcing owners to allow access to common property through a lot in order to effect repairs.
We all on this site have opinions do not trust anyone seek qualified advice if you do not want them walking through your lot.
Some of us have more informed opinions than others. You have absolutely no grounds for saying readers shouldn’t trust the opinions on this site. Some of our contributors are lawyers, strata managers and other professionals. I have been writing about strata for nine years so I have picked up the odd bit of info here and there too.
We would recommend seeking legal advice when appropriate, but hardly ever as a first resort.
Whale’s advice is spot on, Ongoingissue should negotiate the kind of access he’d prefer and if the EC get shirty, point out that it will probably cost them more to get an order at the CTTT than to hire a scissor lift (and even then there’s a very good chance that the CTTT will say that’s a reasonable demand).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
18/09/2013 at 7:33 pm #19495I don’t know, I can see both sides here. A scissor lift is going to be very unwieldy, getting tiles and concrete and stuff up there. And it will cost more (a cost that will be borne in part by the owner) and likely extend the time of the project.
However, providing blanket access to your entire unit for the works is also a big ask – it does happen every now and then, with owners having to move out. Whale’s suggestions re the conditions you might apply if access is gained internally are good ones.
I think the test the CTTT would apply in a case like this is, what is reasonable?
I am more concerned re ongoingissue’s comments re the contractor as it does sound a bit dodgy and on its face the OC is motivated by cost rather than doing the job properly. Did you put up any alternative contractors to do the job?
18/09/2013 at 9:04 pm #19497Two things
First
AS long as the site mixes professional comments with public comments unless you know treat them all as public comments.
Second
The NSW law is clear you cannot enter a private property without permission, the strata act intention is equally clear you can only enter to maintain common property that is accessible from inside the lot.
65 Can an owners corporation enter property in order to carry out work?
As the work is not carried out or need access from inside the lot no entry is allowed.
Or in plain English he is not entering to carry out work in the lot or from inside the lot
The fact that the easiest access to the location is through the lot is irrelevant especially as there are other options.
Can the gardener with the lawn mower walk through the ground floor lot as it is easier than walking round the lot as after all he is going to maintain common property?
Common sense should as well be applicable like the difference between changing one or two tiles too totally re tiling a large area
18/09/2013 at 10:37 pm #19498I thought it was the owner’s balcony, and the OC is accessing it to effect repairs to items that are their responsibility, i.e the tiles.
Regardless, an OC can enter into a lot to carry out necessary repairs.
18/09/2013 at 11:39 pm #19499@leif said:
Two thingsFirst
AS long as the site mixes professional comments with public comments unless you know treat them all as public comments.
Not sure what you mean by that. We take opinions based on the law, common practice and readers experience. You said “don’t trust anyone” – why even bother with a website like this if none of us are to be trusted?
Second
The NSW law is clear you cannot enter a private property without permission, the strata act intention is equally clear you can only enter to maintain common property that is accessible from inside the lot.Well, if nothing else, this proves that some opinions can’t be trusted since this one is utterly wrong. This is what the strata Act actually says:
65 Can an owners corporation enter property in order to carry out work?
(1) An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of carrying out the following work:
(a) work required to be carried out by the owners corporation in accordance with this Act,
(b) work required to be carried out by the owners corporation by a notice served on it by a public authority,
(c) work required to be carried out by the owners corporation by an order under this Act.
(2) An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
(3) In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
(4) In a case that is not an emergency, the owners corporation, may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of an Adjudicator under section 145.
(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 2 penalty units.(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
You only quoted the opening line presenting that as proof of your argument
65 Can an owners corporation enter property in order to carry out work?
But, as you can see above, the Act quite clearly does not say any of the things you extrapolated from that one line.
As the work is not carried out or need access from inside the lot no entry is allowed.
This is clearly not true
Or in plain English he is not entering to carry out work in the lot or from inside the lot
This is irrelevant – it’s not even mentioned in the Act.
The fact that the easiest access to the location is through the lot is irrelevant especially as there are other options.
And that, as Whale has pointed out, is something to be discussed at or before a mediation.
You cannot disparage the entire output of this website because someone disagrees with you. Contributors may not get it right first time but there are plenty of people here who will put them on the right track. In that process we not only find out hat’s right but why they got it wrong – and that’s an important step that other advice websites often miss out. The law, accepted practice and actual experience come together her to provide answers that can be depended on- and that’s something you can trust.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
19/09/2013 at 10:02 am #19501Hi Jimmy T,
I feel I must disagree with your interpretation as Strata Law does not override Common Law. There is no lawful excuse for trespass and unless consent (written or otherwise) is given, technically a CTTT Adjudicator does not have the power or jurisdiction to override Common Law.
Simply put, an order by an Adjudicator will have to satisfy the Owner more than it would the Owners Corporation. The Owners Corporation would have to prove what part of the Act was breached, why it is necessary to enter onto the Private Parcel and ultimately reiterate a request for ‘access’ from the Owner.
If the Owner did not consent to access and the CTTT made an order, it is still trespass and the relevant legislation remains applicable.
I don’t understand the problem with allowing workers in for a fortnight to carry out works that will only improve the lot, but I have absolutely no tolerance for trespass and would request ‘Newbie’ insist this is only done at a mutally suitable time. I suggest forwarding the OC three reasonable timeframes for works to occur and just ‘get on with it’.
19/09/2013 at 10:34 am #19502Just on that, I was wondering what a penalty unit is?
19/09/2013 at 11:38 am #19503PMC2 said..
I feel I must disagree with your interpretation as Strata Law does not override Common Law.
I should probably have allowed Jimmy to respond first, but as I’m involved in the discussion albeit more deeply than I envisaged, and at the risk of using a sledgehammer to crack a nut (or ongoingissue‘s tiles), may I instead make some observations.
If a State / Legislated Law can be overridden by a Common Law, then how in the context of trespass can police enter a private residence if they reasonably suspect the commissioning of a crime, how can a raft of Federal, State, and Local Government representative enter private premises for the purpose of making inspections or carrying out their duties, and how can an Owners Corporation access its property in an emergency or otherwise when that must be by necessity through private property?
I’m sure I’ll be corrected if I’m wrong here, but I was of the opinion that Common Law can only applied by a Court, and only then in circumstances where a relevant State / Legislated Law was deemed insufficiently specific to the particular matter under consideration.
Hence, any Law made by the peoples’ elected representatives such as the NSW Strata Schemes Management Act (1996), is the “strongest” Law, and that it overrides Common Law except in a situation of ambiguity, or where the matter is ill-defined in the relevant Act; where in ongoingissue‘s situation Sect 65 is most definately not (ill-defined).
Let my further education begin…..
19/09/2013 at 11:46 am #19504
@ongoingissue said:
Just on that, I was wondering what a penalty unit is?A penalty unit based system is the means to avoid re-drafting Legislation on every occasion that our elected representatives wish to increase prescribed penalties; they legislate the units and adjust the $ applicable by Regulation.
In NSW a penalty unit is currently $110.00.
19/09/2013 at 12:01 pm #19505Statute law will override, modify and/or replace common law, to the extent that Parliament intends it. That is the purpose of statute law. If it wasn’t, I am not sure why we would have a Strata Schemes Management Act that says the things it does.
So – trespass is a civil wrong. The Act says that the OC can enter into someone’s lot in certain circumstances. If those circumstances apply, then put simply, there is no trespass, because the Act allows it. That is the purpose of the section. In terms of the Tribunal and/or adjudicators – they are given powers to make certain orders under the Act which includes the power to order that an owner provide access to a lot. That overrides any right the owner may have at common law.
I am not sure what PMC means by if the owner didn’t consent and the CTTT made an order it would still be trespass, that is just plain wrong.
19/09/2013 at 12:59 pm #19506Hi scotlandx,
I’ve actually had this discussion with a High Court Judge and some very well established Strata Lawyers who dated the Trespass laws all the way back to Old Blighty. The reasons for my discussion with my learned colleagues does not need to be displayed on a public website, but think about it… enforcement of s65 is established by ‘being aware’ the common property is not functioning correctly. An order is for access is to ‘initiate’ repairs in breach of s62 of the act, or to ascertain the extent of the damage… but it has to be established first.
If there is no evidence and the OC want access, for whatever reason, it is not enough to satisfy an Adjudicator ‘ordering’ an owner to give access. As in ‘newbies’ response, they could access the defective common property in another manner, why should the Owner be disturbed because the OC failed to maintain the common property vested in the Scheme?
If the adjudicator ‘orders’ the owner to provide access (not consent) the OC are indemnified from this trespass, but the persons entering the property are still accountable (liability insurance is a must for these contractors).
What’s to stop an OC entering anyone’s property whenever they feel like it, or ‘plant’ evidence against owners who may have litigious action afoot? The over-riding laws, which are civil and common, are all enforceable and punishable if they are committed.
The main principle at play is ‘consent’ and even if consent is unreasonably withheld, it is expressly up to the Lot Owner as to whom and who not to allow entry onto their private property. Strata Schemes Management Act is a guideline for the Owners Corporation and many, many other ‘Acts’ are applicable that override this legislation. Look at any of the recent court cases and you will see this.
It’s worth noting that Adjudicators are not held to personal account (and rightly so) and that this is the magic of CTTT where they can find in whatever manner they wish… hence the ‘Clown Factory’ comments. The main ‘phrase’ the judge told me was that there is no legal excuse for ‘trespass’ and that the manner in which it is dealt with is applicable to what the seriousness of the trespass is. If the Owner outright refuses to offer consent, it is entirely their right to do so. But in doing so, I would expect there to be good reason as in my case it was committed flagrantly and with unconscionable disrespect.
19/09/2013 at 3:41 pm #19514leif … I’m certain that if I had the time and inclination I could select an equal number of legislative excerpts and spin those around in order to convey the opposite opinion, of which some from the Law Enforcement (Powers and Responsibilities) Act (2002) would be but one.
Fortunately for everyone I don’t, so I’ll merely again suggest that ongoingissue relies on the majority opinions expressed here, and negotiates in good faith with the O/C and lets common sense dictate the outcome.
____________________ that’s it from me! ____________________
-
AuthorReplies
- You must be logged in to reply to this topic.
› Flat Chat Strata Forum › Common Property › CP and the Strata Committee › Current Page