Can EC force me to take on repairs and maintenance?

Julie,

“I guess I am one of those difficult owners.”  not at all!  You sound reasonable and your issues, in the main, correctly handled by you.  

 

The original post did not go into the content and validity of their grievance and the responses were drafted accordingly.  

 

Anyway that is what I felt after reading all posts.  

Janet – the short answer is NO, your Owners Corporation cannot enforce a Special By-Law (SBL) of the type proposed unless they have your prior written consent; the relevant section of the NSW Strata Schemes Management Act is 65A(4)which states:

A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:

(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b) the owners corporation makes such a by-law.

OK, there’s a subtlety there around allowing an Owner to “take action” when those in your Villa have already been “taken”, but it sounds to me like it’s this Clause that your O/C is trying to use to legitimise their proposed Special Resolution (at the EGM) and subsequent SBL.

As the Secretary and Treasurer of a self-managed Plan I can appreciate what your Owners Corporation (O/C) is trying to achieve and why, but it’s a bit of a stretch for it to assert that it had no prior knowledge of the stairs (legal or otherwise), and that it could not have introduced the proposed SBL when the Villa was owned by the original Owner, or even made a suitable notation on the S109 Certificate that would have been requested by your Solicitor / Conveyancer at the time of your purchase.

So in my opinion, and on the face of it, your O/C is required to properly maintain its Common Property, and if that means repairing the upper level of your Villa so that it’s suitable for its intended use, then so be it!

I say “on the face of it” because we’re so far unaware of any extenuating circumstances such as whether the upper level of your Villa is a habitable area (or not), if you may have in some way contributed to the “sagging” (e.g. by storing excessively heavy items), but whilst any of these things may mitigate the O/C’s liability to maintain the area, none would negate it.

So far as the holding of the EGM is concerned, without knowing the nature of your Application to the NCAT and why it was dismissed I can’t comment on what effect an Appeal would have, but I’d continue to decline any requests by your O/C to consent to the making of their SBL and let the Meeting proceed.

I (and no doubt others here) would be interested to know what if anything has occurred with the stairs / ladders to the other five Villas, and if your O/C is attempting a similar approach with those Owners, and what consequences are being suggested under Strata Legislation by the O/C’s Solicitor if you withhold consent to the SBL.

Thanks scotlandx, I have to be aware not to let this situation take over my life.

Para 2: In November 2013, it was voted and carried by Special Resolution “That the OC may request a Lot Owner to reinstate common property (installation of staircase) to original condition as approved by council if they do not rectify/maintain any alteration to a safe standard or within relevant building codes.

That a Special Privilege By-Law be approved by Special Resolution. Lots owners are fully responsible for any installation, repair or maintenance that my be required to any part of the staircase or associated Common Property retrospective of this date 

This was voted on and approved. But nothing has happened until the Notice of EGM for Tuesday. 

I will go to the EGM as I was the owner who insisted on this meeting. I have proposed a special levy of $15,000 to bring the admin fund to a safer level.

The SM has been borrowing out of the sinking fund for about a year. I have the financial statements.

Para 5: Are the stairs/ladders illegal? Yes and No. As stated council sent a letter to the developer in 1997 requesting the removal of the stairs, there was no response and council at a later date issued a Certificate of Occupation.

Para 8: I just spoke with my engineer, who was able to get the plans from council. The plans show a ladder from the kitchen end. There is an obvious cutout in the floor upstairs but it is at the other end.

I had viewed my file at council some months ago but could not comprehend the masses of superseded files. Boxes of stuff. But I obtained a copy of an application to council 11/11/13 by the strata manager to view the file for my villa. I did not view this file (according to council). 

I also found a certificate issues by council that the upstairs area was for storage only. No one was to live upstairs. I do not believe any owners were informed and all use the upstairs area. I have a ‘plan’ given to me at the time of purchase indicating the upstairs area as rumpus/storage.

Para 10: An application was submitted early 2013 for a compulsory manager to be appointed. This was dismissed because the solicitor, the best most expensive strata expert, did not allow time for the respondents to reply.

The solicitor and the applicants, myself and two other owners then resubmitted to have a compulsory manager appointed. The stairs were the main issue. This was submitted in December 2013. The solicitor put an incorrect strata number which the SM has pounced on, even I advise NCAT immediately I saw the error.

The adjudicator was unaware that the stairs/ladders may be legal. Also unaware that the SM had applied to the council to view my file and failed to do so, which makes his response to the adjudicator invalid.

Yesterday, I obtained copies of the respondents reply to this second submission. All 39 pages. Of particular interest are the two pages from the SM. Plus all four EC members make long statements. The only owner who put his best and honest effort into his response was a villa owner who also has stairs and is the Treasurer.  The rest is just ‘he said’, ‘she said’. 

The SM makes certain comments without providing any evidence whatsoever. The SM states …”purchased her property with a staircase that had been installed by a previous owner. This staircase and 3 others were installed without the knowledge or approval of the OC and or the approval from the council. Over the last several months the illegal staircase installed in villa… has shown signs that it was incorrectly installed and is currently being investigated by a Structural Engineer”.

(Two engineers, both commissioned by the EC. One said the upstairs floor/stairway affected the structural integrity of the villa. The other said the area was dangerous and no one was to go up there.)

“To our disbelief Ms…..arranged for Villa…. to install a staircase without any approval, to the loft area of this lot through common property roof trusses even though she was aware the staircase in her lot had been illegally installed and not in a tradesman like manner. She also allowed Villl… to have a sink installed in the loft area without seeking permission from the OC or council”.

The stairs installed in the garage in villa…. were done many years ago. I was not aware of any problems to my upstairs floor until mid 2013.

I had enquired about the installation of the stairs in the garage of villa… I was told verbally by a member of the OC to go ahead as the stairs did not touch the common wall. As to the sink. I do not know when the sink was installed or by whom.

I am legal guardian to the 60 year man in this villa. He is one of the applicants to our submissions. He has Aspergers and compulsive disorder. I installed the ladder in the garage as a safety measure as his villa has the very steep, dangerous ladder inside his villa.

“The OC tried to raise a special levy at the 2013 AGM to replenish the shortfall in the admin fund. The three owners, myself and the two other applicants (including my ward) strongly opposed that levy as both stated they could not afford a special levy.

This is a blatant lie. There was no such discussion. The Agenda: to raise a special levy of $10,000. To raise the levies.  The EC, who have the majority, voted in a rise in the levies taking my levy to $1015 per quarter.

“Ms…. has stated in the submission that she has trouble with her vision and in unable to see the supports that have been placed in her living area, yet she drives a vehicle on a very regular basis. Ms……is currently selling her villa due to health reasons. We believe a couple of pre purchase building inspections have been carried out with not one building issue being raised by the building inspectors. In discussion with Mr…. on several occasions I have asked him what he thinks and his reply has always been “whatever Janet wants”. 

(Mr…  my ward, is fully capable of running his life and making decisions. He needs a lot of support as he has no family and I guess no friends. I talk to him every day and take him for outings on the weekend. If he said “whatever Janet wants” then it is out of regard for me. In particular he is most distressed that I have had scaffolding in my lounge room for over four months).

The Adjudicator’s dismissal: I have till the 20th May to appeal. But should I do this as I may now be seen as vexatious applicant.

There was some legal stuff in the application I do not like. But, of the six breaches listed. The main ones were:

A failure to manage the financial affairs of the OC

A failure to repair and maintain common property.

To condense this down a little:

The adjudicator says: The respondent submits that is has endeavoured to work with the applications in relation to the restoration and maintenance issues re the staircases which were built without the requisite approvals.

The respondent is still trying to work with the relevant lot owners about the responsibility and liability for the cost assoc with the repairs.

I am satisfied that the respondent did make an attempt to raise a special levy. 

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I am hoping the above will answer some of whale’s questions as well.

The OC were well aware of the stairs as a member, admiring the stairs in my villa, that her late husband had built the stairs. But recently told another member that no, he had only helped with a bit of painting at the end.

Spoke to the conveyancer this morning, she said that for strata she did obtain a S109 but that only meant a confirmation from the SM re the levies. That is did not mean a council building approval etc.

I did not contribute to the sagging. My daughter sleeps upstairs on occasional visits. The bed on on the far end, well away from the sag and there are double beams on that end.

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This is a long missive and I have tried to put in what I think is relevant.

 

Janet

In answer to whale 7/5/14 

I will have to type the whole thing.

Introduction:

The owners or their predecessors altered the common property by installing attic staircases without the approval of the OC or council. The objects of this by-law are to give the owners the right to retain their attic staircases on certain conditions and to give the OC the right to require the attic staircases be removed if the owners do not comply with these conditions.

In this by-law:

1 “attic staircases means the timber staircases in the lots and partly on the adjacent common property which are shown in photographs and provide means of access from the ground floor levels of the lots the attic levels of the lots, and the balustrades and the posts;

2 “attic staircase spaces” means so much of the common property as is occupied by the works including the attic staircases”

Lots mean 2, 2, 4 & 5 in sp…

“owners” mean current owners of the lots.

“posts” means the load bearing support posts which run from the floor to the ceiling on the ground floor level os some of the lots and lie adjacent to the attic staircases in those lots some of which are shown in some of the photographs and all other structural elements of the attic staircases.

“works” means the alterations and additions to the lots and adjacent common property in the installation of the attic staircases including the making of openings, or enlarged openings, in the ceilings on the ground floor levels of the lots and through the floors on the attic levels of the lots to provide access to those attic levels.

3 Special Privileges & Exclusive Use Rights

The OC:

(a) Consents to the attic staircases

(b) confers on the owners special privileges in respect of the attic staircase spaces to permit the attic staircases to remain on common property.

© grants the owner a right of exclusive use and enjoyment of their attic stairway spaces.

4 Conditions:

(a) Quality of the Works

The owners must ensure that the works were carried out in a proper and workmanlike manner utilising only first quality materials which were good and suitable for the purpose for which they were used.

(b) Building Code of Australia

The owners mud ensure that their attic staircases comply with the applicable provisions of the Building Code of Australia, and any applicable Australian Standards.

© Maintenance of the Attic Staircases

The owners must properly maintain and keep in a state of good and serviceable repair the works and their attic staircases and, where necessary, renew or replace any fixture or fittings comprised int he works and their attic staircases.

(d) ditto

(e) Repair of Damage

The owners must make good any damage to the common property caused by or as a result of the works in accordance with any reasonable directions given by the OC. Despite the foregoing, the OC may make good any damage to the common property caused by or as a result of the works and, if it does, may recover as a debt due from the owner the costs of making good the damage and the expenses of the owners corporation incurred in recovering those costs.

(f) Engineer’s Certificate

The owners must, within one month of the date of the meeting at which this by-law is made, give the OC a certificate or report from a qualified structural engineer addressed to the OC certifying that the works and attic staircases are structurally adequate and have not affect the structural integrity of the building or any part of it.

(g) Local Council Approvals

The owners must within three months of the date of the meeting at which this by-law is made, obtain either development consent to, or a building certificate for, the works and their attic staircase under the Environmental Planning and Assessment Act 1979. The OC must consent to and execute any development application submitted to it by the owners for that purpose and must not unreasonably refuse to consent to the owners carrying out any works of a minor nature in order to comply with any development consent conditions or obtain a building certificate.

(h) Indemnity

The owners will indemnify and keep indemnified the OC against all actions, proceedings, claims, demands, costs, damages and expenses which may be incurred by or brought or made against the OC arising out of the works, any damage to the common property caused by or as a result of the works, the altered state, condition or use of the lots or common property arising from the works or any breach of this by-law.

(i) Compliance with all Laws

The owners must comply with all statutes, by-laws, regulations, rules and other laws for the time being in force and which are applicable to the works and their attic staircases and the requirements of the local council concerning the works or their attic staircases including notice or orders issued by the local council.

5 Several Obligations

The rights and obligations conferred and imposed on the owners by and under this by-law are conferred and imposed on each owner separately, and are not conferred an imposed on the owners jointly, to the intent that an owner will not have any rights in respect of, and will be responsible for any obligations impose on another owner concerning, an attic staircase that is located in another lot or the works for that attic staircase

6 Breach of this By-Law

(a) If an owner breaches any condition of this by-law and fails to rectify that breach within the 30 days (or such greater period specified by the OC) of service of a written notice from the OC requiring rectification of that breach, the the OC may:

(i)    (A)  rectify that breach

       (B) enter on any part of the strata scheme including the lot, by its agents,        

            employees or contractors, in accordance with the Strata Scheme Management Act 1996 for the purpose of rectifying the that breach; and

       ©  recover as a debt due from the owner the costs of the rectification and the expenses of the OC incurred in recovering those costs: and/or

(ii)     (A) serve a written notice on the owner:

         Terminating the owner’s rights under this by -law; and

        (B)  requiring the owner to remove the whole or any part of the owners’s

            attic staircase and reinstate the whole or any part of the owner’s lot  

           and common property to the condition they were in before the works.

(b)     If the OC serves on an owner a written notice referred to in clause 6 (a) (ii) above, the the owner’s rights under this by-law shall terminate on the date of service of that notice, irrespective of whether this by-law remains on the folio of the Register for the common property.

© Nothing in this clause 6 restricts the rights of or the remedies available to the OC as a consequence of a breach of this by-law.

3 Motion to Remove Attic Staircase

On the condition that the previous motion to make Special By-law No 1 – Attic Staircase is defeated, the the OC RESOLVES to write to the owners of lots 1, 2, 4 and 5 and require them for with remove the attic staircases in those lots and to reinstate the lots and the adjacent common property to the condition they were in before the attic staircases were installed and to give the strata managing agent authority to write to those owners accordingly.

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Summary:

The staircases to lots 1, 2 & 5 were installed by the developer. I saw all this my file at council. Council will not verify what I saw even though I made an application for a copy of the Consent Approval on 23rd April 2014.

Discovered yesterday the ladders were intended to all lots. The ladder is on the plan for my villa that council recently gave to my engineer.

I was hoping that the Building Surveyor would confirm in writing what he saw in my file at council. I think he has backed off. 

I do not have a solicitor. My past experience with a very expensive strata solicitor had no effect. No outcome. No one even replied to his emails/letters.

There are three owners who will not be signing this by-law, we all have staircases.

The other owner with the staircase is in a very dire situation as well.

My staircase does not need work. But it is too steep to pass council or whatever regulations. It is the floor above that has sagged through lack of proper support beams to hold the stairs. It does not need to go to council.

I had decided that I would pay for an engineer and builder to effect the repair.  But after this incredible legal notice. There is no way I/we would sign and indemnity. 

I wil have to put smily. Woe is me.

Janet

Whale…what a brilliant reply.

But the plot thickens. No long emails today. Just a short report/letter from a Building Surveyor (I paid) to inspect my file at council in April.

“I refer to our meeting and review of ….council records on the …..of building files for the construction of units at the subject property.

I can confirm that documents authorised by a Council officer stated words to the affect “….inspection of units 1 – 6 revealed that stairs had been constructed to each of the units. The stairs are not included on the approved plans and that the builder is instructed to remove the stairs or apply to council to modify the plans”

A later note on the councils file stated words to the effect. “The building works have been completed satisfactorily”. I also viewed a later document being a Certificate of Classification and Occupation Certificate issued by  ….council.

In conclusion, I can confirm that having reviewed the council’s file and the documents thereon, and based upon those documents, that council’s officer was aware of stairs constructed to units 1 -6 before the council issued the Final Certificate.

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My engineer had managed to obtain copies of relevant documents which will assist in the report on my ‘slab’ and the continuing damage within my villa. Quite scary. The common wall with next door is fighting the urge of my villa to sink on the NW wall. 

This report, which I have’t seen yet is on the agenda for the EGM on Tuesday.

I have requested the the OC act on this report and make a time frame for work to commence.

It looks like my wall will need underpinning.  So who pays for the plasterwork and painting within my villa caused by the slab sinking?

The solicitor, who was very skilled in strata advised me agree to the SPB with all rules and conditions. I won’t go in to details on line but she mentioned a few things that one would hope do not eventuate further down the track. 

I will be agreeing to the SPB as I do not want this matter to drag on and on and I now have the other saga about to happen. Re the slab.

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The SM applied to view my file at council lats November. He did not do so.

Yet, the SM and EC instructed their solicitor to write a response to the Adjudicator in which it is stated repeatedly that the stairs were built without authority form either the Owners Corp or the council. This response was lodged in March.

The two page letter from the SM to the Adjudicator contains outright lies and worse still, the SM doubts my claim of being vision impaired as I drive a car and can been seen walking over for coffee each morning.

(I am still walking into the scaffolding now and again, as are other visitors to my villa. There is only 64cm between jutting wall and the first pole and on the floor 53cm from wrapped timber plank to jutting wall).

For thirty years or so I have trained myself to guard against falling, tripping etc because of field vision loss. I have had a number of injuries, but not for a long time. They think it is glaucoma. Then maybe not.

Since my submission to the Adjudicator in Dec I have had two cataract operations and now have super sonic eyesight. What a joy. I still have centre vision and some fields. The specialist was then happy to grant me my licence for another year.  But the SM & EC would not know about that.

How horribly insensitive that not only the SM cast aspersions on my claim to be vision impaired but members of the EC also did so to the Adjudicator. I have ample evidence by way of Humpreys Field tests.

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The EC are unaware that history can be gathered about who purchased what, when. In one claim to the adjudicator, an EC member states that her husband ‘stained’ the stairs in my villa. Ho Ho. My villa sold in 2002. She purchased her villa in 2004. One does wonder about people.

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I will be lodging an appeal as I feel that the SM was aware right from the start that these stairs were built by the developer. The SM has claimed all these years that he was then a real estate agent, that he had sold this land to the developer, that he was involved the development from the word go.

I am now wondering if the EC had this knowledge. Dare I say, conspiracy? Collusion? To force me to pay for the repairs. We are talking $10,000 or more.

I find it hard to believe that I have made such bad enemies. I was always taught ‘beware the group’. Perhaps individually the EC members are decent people, but as a group….

Whale, thank you so much for taking the time to reply. I had said this was short email but you know what happens.

Janet

Thanks overit. You are right. I am overwhelmed with legalities that I don’t understand.

I really want to pay for this work and move on.

Whale has been a really great help and after reading and re-reading his last missive I will make a final effort to get solicitor’s advice today.

Janet

The meeting is today and have to face five very hostile people. I cannot say how much I appreciate the assistance, particularly from whale.I had given some thought to future owners. That would be my daughter for one.

Never fear whale, I have listened. It would be so easy to ‘cave in’ but what of the future ramifications. 

I have decided to NOT agree to the Special Privilege By-Law. I will advise the EC to go back to the solicitor who prepared the SPB and consult with him. Given the sound evidence I now have that council approved all the staircases which were built by the developer.

Today I even have copy of Council’s Occupation Certificate issued in 2004.

I will contact the lawyers that whale has mentioned and ask for a ‘statement of fees’.

Janet

Thanks for all for your encouragement. Particularly whale. I squared my shoulders, took a deep breath and faced the EC and SM at the meeting.

The SM noted my two proxies. The SM said that if 25% of the owners did not agree to the SBL the vote could not happen.

I said “we do not agree” – all hell broke loose.

The sec. said “but you said you would pay” and I said “only if you delete para (g) & (i) but in the meantime I have decided to get legal opinion.

“you have come to the meeting unprepared”   “Yes”

The SM tried his usual scaremongering and emphatic style of speech.

“Do you realise Janet that this will go to NCAT and they will order the ladder put back, do you want to lose your stairs and the other owners to lose their stairs”

I said “The stairs are not illegal, you have the email from the Building Surveyor stating that the stairs were part of the development” 

The SM said “I will swear in a court of law that the council meant ladders.”

The Treasurer said “There was no need to make an issue of the upstairs floor in my villa as there was nothing wrong with it”. (he has stairs)

I turned to the secretary and said. “You were there with the engineer last year, what did you see”

The Sec said “There was a large sag noticeable on the string line”

The Treas. said “How large a sag”

The SM interrupted this line of talk.

A com member asked “What is you don’t like about the proposal”

I said “Everything. Why do I have to pay? Why all this stuff about DA and council approval. It is not necessary. It is a repair. Council need not be involved at all. And besides, the floor upstairs is substandard. Read you own engineer’s report”.  “My stairs are too steep and the beams on the floor are too far apart”

The Treas. who is a retired architect then went into a longwinded explanation about the depth of risers etc. I guess he was trying to indicate it would maybe pass council.

At this point the meeting started to disintegrate. 

The Sec lost his temper, yelling “You are the problem in this strata, it is always you, you have cost us $5000 in legal fees, so much of our time etc”

(the $5000 would be what they paid the solicitor to respond to our submission for a compulsory manager, plus the cost to draw up the SBL, it is madness that they paid the solicitor to do the response so that the SM could keep his job)

I said “So, you instructed the solicitor to draw up this document, why wasn’t I included, why don’t you involve owners in your decisions, it affects all of us”

The Sec. said “We are the EC and we decide what needs to be done. As far as raising a Special Levy (to top up the Admin Fund) WE WILL RAISE THE LEVIES UP if you are not careful” (The EC had already raised the levies at the AGM last years. My levies are $1015, a rise of 19%)

The Chairman, (who is a very loose cannon said to SM) “You are being too kind to her, it,” repeating this twice. Yelling.

I said “why are you doing this SBL jointly. Why I am I involved in other owners stairs”.

Silence

Finally the SM said “well, the owners can apply for this SBL individually”

I said “Fine, let them do that”

I said “we will not agree to this proposal in it’s present form. 

The SM wanted to adjourn the meeting so that our lack of vote was not recorded. 

The loose cannon said “Fine, let’s wait until the AGM (that would be August) he said this a number of times.

Various comments about a waste of time, the effort of attending another meeting. The SM said he would not charge us for the 20 minutes.

I was calm throughout the meeting as I do not raise my voice, ever, or get into a slanging match.

This is the first time on any issue that we have had a say. In all other instances the EC have the majority. They voted themselves in and there they stay.

So the scaffolding will be there for some time.

I have contacted a strata lawyer.

Time for a holiday.

Janet