- This topic has 7 replies, 5 voices, and was last updated 3 weeks, 1 day ago by .
-
Topic
-
Hello,
I’m wondering if anyone has any knowledge or experience with strata proposing a by law that states that its intention is to force lot owners to pay the excess on insurance claims for damage to lot property, when the damage was caused by a faulty common area pipe?
Long story short, I’m a lot owner in a complex of 12 units and had damage to my kitchen from a slow leaking greywater waste pipe. The pipe was behind the wall, servicing all the units (not solely mine), and the leak was found to be strata liable at the time of the repair since it was in the common area. Strata repaired the pipe eventually 7 weeks after I reported it, but 7 months later I am still in dispute with them regarding repairing the damage and contamination to my kitchen. The strata manager informed me over the phone that they are not going through insurance and that the committee has approved a quote from a second contractor, which leaves out a lot of the items that the original contractor agreed to repair, and will not repair the damage to its original condition. He stated that they have chosen the second contractor because they decided the original contractor quote was ‘very expensive’ and the funds to repair my kitchen have to come out of the strata budget.
They are now proposing a by-law in the AGM which specifically states that its intention is to:
“determine whether a lot owner shall be responsible for the payment of any applicable insurance excess following the settlement of an insurance claim that affects only their lot property at the strata scheme. The intention of the by-law is for the lot owner to assume liability for that expense.”
So now it looks like even though the strata manager informed me over the phone that they are not going through insurance to pay for the repairs, they may now be trying to cover themselves and make me pay the excess for the repairs to the damage if they decide to change their minds and go through insurance to cover the cost, or be ordered by NCAT to pay for the damage.
Can anyone please advise me if they have seen this before or if it looks as though it is legal for them to pass this bylaw? It can’t be a coincidence that this by-law has suddenly come up and it feels very much as though it’s in direct response to my dispute regarding the repairs.
I’m looking at engaging a professional to do a forensic search of the strata records to see if there has been any correspondence that would prove bias or unfair treatment that I can use at mediation. However, I’m not sure if I’m going to be able to get the by-law defeated if enough of the other owners vote for it, or the committee members have a proxy vote situation in place for other owners who don’t care enough to attend/vote/respond. Is there a conflict of interest with the committee members voting on the by-law, since they are directly responsible for approving the quotes on repairs to lot damage & deciding whether lot damage claims are put through insurance?
The Strata manager has also ignored by motion which I emailed to be added to the agenda (within the required timeframe, written with explanatory notes in a manner that it can be voted on, with a request to be advised if it needs any rewriting etc in order to be eligible to be added) – isn’t it illegal for them to simply ignore it & not add a motion if it follows all the guidelines??
Am I setting myself up for a battle that’s not worth the fight? Please help, any advice appreciated…
-
Replies
-
The strata manager informed me over the phone that they are not going through insurance…
Why not? And no matter their answer, there is no reason why you can’t directly claim via the insurance policy.
Forget the forensic examination of strata records
I’m looking at engaging a professional to do a forensic search of the strata records to see if there has been any correspondence that would prove bias or unfair treatment that I can use at mediation.
Forget forensic examination of the records. Get an experienced strata lawyer to look at the legality or otherwise of this. Basically the OC would be asking individual owners to cover a shortfall in insurance cover that the OC has used to save all owners in lower insurance premiums. In other words, they want to save money on the premium then save again on the claim.
Somewhere in the dim recesses of my brain, and I could be wrong, I think there’s a principle that if a by-law has an impost on an individual, they have to agree to it.
Otherwise, this smacks of strata committee owners resenting the fact that you have been covered for repairs and received something they didn’t. So yes, you may be up for a fight and whether or not it’s worth it depends not just on the cost versus benefit, but the “social capital” cost too. I would go to an experienced strata lawyer and ask if this can be done legally and to send the SC a letter explaining why, if it can’t.
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.
But because he’s refusing to give me the details about it all (he’s claiming that I can’t access any of that detail because it’s only the strata committee that are allowed to see it),
This where the committee member is playing in the grey areas. They don’t have to provide you with the documents but you or your agents are entitled to see ALL the documents at your strata manager’s office. So perhaps it’s worth hiring a strata search specialist and I’m not sure how much that will cost.
Personally, I would tell the committee that if they try to push through this by-law, you will challenge it as being “harsh, unconscionable or oppressive” as well as being in breach of section 136: “A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.”
Let them do the leg work and find out which side of the law they sit. For what it’s worth, I believe that if an owners corporation has chosen to save money on the premium by including an excess on the policy, they can’t expect an individual owner to make up the shortfall when a claim is made.
And if they push ahead with it, this will stand or fall on the legalities, not on what their motivations may or may not have been, so pursuing a conspiracy may be a waste of time and money.
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.
Good day CupoC,
Re: By-Law
1. Jimmy is right: forget a “forensic professional” to examine the records. Just what do you think (i) qualifies someone for that task? Is it an experienced auditor? If so, have you any idea how much that will cost you? (ii) whatever ANYONE (you, me or a self described “professional”) finds in the records will at best only reflect what was decided to be kept by the strata committee. Breaking News: a cunning or unscrupulous committee or strata agent is smarter than you and I. Such folk will not leave any trace of evidence that could reflect poorly on them. The most cunning would have nothing in writing in the first place, they would have made all decisions verbally and NOT deposited notes of their discussions in the files;
2. Jimmy is spot on when recommending an experienced strata lawyer. Note the adjective “strata“. Using a “family” or “general” lawyer is a colossal waste of your money (especially if the committee members or agent know the law and make use of a strata lawyer themselves). Get a couple of quotes before moving forward;
Motions for general meeting
3. You mention the SM ignored adding your motion to the agenda. Separate to the above two points, I suggest you ape my actions (of 2022) below:
(a) C0mplain online to NSW FT about the agent refusing to list your motions and tell NSW FT he is clearly ignoring the obligations under which he is licensed (being the Property & Stock Agents Act and Property & Stock Agents Regulation). The complaint can be filed at the following link
https://www.fairtrading.nsw.gov.au/help-centre/online-tools/make-a-complaint
—> Real estate, property management and strata
—> Complaint form
I did just that in late 2022 after I emailed the agent my motions. Soon after he confirmed they would be listed in the agenda, but a fortnight later when the agenda was sent out, my motions were nowhere to be seen. He refused to explain himself to me.
NSW FT investigated my complaint and asked the strata agent some questions he clearly was not comfortable with. Upshot: two weeks later he resigned as strata agent of the scheme. This was very unwelcome news for the strata committee who thought they and the strata agent could ignore the law if it suited them.
Complain as above ASAP. Today is a good time. Do not tell the agent or the strata committee that you have done so. Let the process work its way through NSW FT. FT will, 10 days or so after you file the complaint, call you to confirm they will look into the matter or call you to seek more documents.
Do not confuse the by-law and motions issues (which could be considered separate matters) you are facing:
(a) Whether a by-law as proposed is lawful and
(b) Poor conduct on the part of the agent (i.e. breaching the Act under which he is licensed) in not listing your motions (which can be about anything) for the next general meeting.
Good luck!
Hi CupOfC: for your info, the strata roll is merely a list of names and addresses of each lot owner in the strata plan. It is not a record of correspondence (emails, text messages, letters, meeting minutes) which you seem to be seeking.
There is no such thing as secret info which only the strata committee can see. Any owner is entitled to request a viewing of the records of the owners corporation. The process for requesting that is also explained the Strata Schemes Management Act 2015 (NSW) (SSMA 2015) under the heading “Part 10 Records and information about strata schemes”.
If the strata committee conducts a meeting, the meeting agenda has to be distributed to all owners, even though only the strata committee will be making the decisions. It is explained the Strata Schemes Management Act 2015 (NSW) under the heading “Schedule 2 Meeting procedures of strata committees”.
If that grey water waste pipe services more than one lot, then it is common property. The owners corporation is responsible for all common property. See Section 106 of SSMA 2015. The only exception would be if they can prove that the lot owner is responsible for the damaged common property.
The owners corp can choose how they pay for the repair of the common property. If they choose to make an insurance claim, the owners corp pays any applicable excess.
I can’t see how a by-law giving the owners corp has the option to decide who pays insurance excess makes sense. If it is common property and the lot owner did not damage it, the owners corp pays for its repair.
If the lot owner is responsible for the damage, the owners corp should bill the lot owner for the total repair cost. It is ridiculous to make an insurance claim and blemish the owners corp’s insurance claim record.
Here is what I think happened. Owners corp does not have the funds to pay for this repair. They look at making an insurance claim. They don’t have the funds to pay for the insurance excess either. They invent a by-law that allows them to pass the cost on to the lot owner.
If you do a search ON THIS WEB SITE for “lawyer in the hot seat”, you will find a two part interview between Jimmy-T and a strata lawyer. In part two of the interview, they talked about a costs by-law for recouping legal costs from an owner. The lawyer said such a by-law is invalid.
Your situation is different. So you really should contact a strata lawyer and tell them your story. As much as I love reading the opinions of others on the forum, NCAT will decide according to the Strata Schemes Management Act 2015 (NSW). A strata lawyer should know how this would apply in your case.
- You must be logged in to reply to this topic.