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This is an update on issues raised in a past forum. There are 10 lots in the strata. The story so far. The EC wished to have an SBL to make all owners with stairs (4) be responsible for maintaining and repairing the upper floor/stairways should this be necessary.
All stairs in four lots were installed long before the present owners purchased their villa.
My villa suffered a sag in the floor upstairs and scaffolding was installed to hold up the ceiling in the lounge room near the stairways. It was there for 7 months.
There were discussions with whale and others re this SBL.
In the meantime the upper floor my lot has been repaired as the work could no longer be delayed. Steel beam etc installed, carpet laid. Engineer’s certificate for the works.
At no time did an EC member appear while this work was in progress.
EGM yesterday: We (25%) of lot owners would not agree to this SBL which was a Special Resolution.
We did not agree to sign the SBL as aside from all other factors, the EC and SM had not proved that the stairs were illegal.
They said “Can you prove they are legal” (in that authority was sought from the OC and council to install the stairs all those years ago).
I said “No, council will not allow any records to be copied under copyright law. But you have a statement from a Building Surveyor (who inspected my file at council) that the stairs were passed by council, even perhaps inadvertently”.
I had been informed by the Building Surveyor who inspected my file that I had a case against council. Don’t really want to get in to litigation.
I informed the meeting that council did not want to be involved and that they said it could open a ‘whole can of worms”.
The meeting then went to Motion 3: which was that the EC would advise the SM to notify all owners of stairs that the stairs be removed within 90 days. A majority vote said Yes.
There was some desultory discussion about how long the owners would need, 28 days, no, too soon. 90 will do.
The SM said he would have to notify the solicitor for a villa with stairs. A sale for this villa is halfway along. This will be a loss for the owner, (who is one of our 25%) of the fifth buyer. Most of the sales have fallen over because the strata reports are so bad. Dysfunctional.
We have sought orders:
A compulsory manager and a Special Levy to top up Admin Fund (as of yesterday the Admin Fund was minus $13,000) with $26,000 in the sinking fund. So really, we have $13,000 for both funds.
We had instigated this meeting. We had requested A special levy be on the agenda yesterday. They had some long winded discussions about finances. The vote was NO.
We have a conference “hearing” by phone at the end of the month.
The respondent is named as the Owners Corporation.
Janet
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What a mess.
The short answer to your question is no, the OC can’t force you to remove the staircase, they don’t have the power to do that themselves. For example they could pass a resolution that an owner must remove the stairs, but they can’t enter the lot and remove them, and if the owner did not remove them, then they have to take further steps to enforce the resolution.
There are a number of things that may compel an owner to remove the staircase in these circumstances:
1. an order of an adjudicator or the Tribunal
2. a Court order (although I am not sure which Court would have jurisdiction)
3. a Council order.
In the third case, the OC would have to lodge a complaint with Council that a lot had illegal stairs, that the stairs were in breach of Council requirements and requesting that the Council take enforcement action. Then the Council would have to decide to take that action and issue an order for removal of the stairs.
In certain circumstances the owner may be able to appeal a decision to make an order.
I am baffled by the Council refusing copies being made on the basis of copyright law, I have never had that issue with our Council. There was a High Court case in 2007 which confirmed that an owner of a property could use plans forming part of a development consent, even though that owner was not the architect’s client. Copying plans on file at the Council would constitute reasonable use.
Thanks scotlandx
I had a meeting today with another SM who is also a solicitor. He advised us to email our SM and advise we would not comply with Motion 3. “That we had to remove staircases within 90 days”.
He was very happy we had not signed the by-law. We can thank flat-chat guru’s for not caving in to the bullying and threats.
I attend these meetings, just myself and four EC and SM. All male.
Council had stated that if they received a complaint about the stairs they would have to come on site it would open a “can of worms”,
As mentioned on the previous missive, I commissioned a Certified Building Surveyor who checked my file for two hours at council. He pulled out everything he wanted copied and it was the next morning that council refused copies and said it was all in their legal dept.
Here is what the Building Surveyor reported:
“I can confirm that documents authorised by a council officer stated words to the effect….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.”
I applied to council for the ‘Consent and Occupationcertificate” but instead was phoned by a staff member who arranged the meeting below.
A meeting was held with my engineer, and a council building surveyor. She said the developer had been notified about the stairs, back in 1997, I think she said. The developer did not respond. Council did not notice his lack of response. She said that stairs were never meant to be installed, but pull down ladders.
She gave all copies of necessary paperwork and plans to my engineer so that he could do the design for the repair of my upper floor.
The SM, at the meetings, claims that all the stairs mentioned mean ladders.
There is a council certificate declaring all upstairs areas not to be lived in.
But we were sold the villa without this certificate. In my case a map/measurement showing the layout of my villa with the present stairs drawn in. Printed on this map. Rumpus/storage area upstairs.
Out of spite, the SM and/or the EC could lodge a complaint with council. If they do this then the Treasurer would face the same problems as other owners with stairs.
So it comes down to the wording. Do staircases mean ladders? If you look at what my building surveyor said “Inspection of units 1 – 6 revealed stairs had been constructed to each villa”
There are six villa. 3 have stairs, 3 have ladders. All this may be down to the wording.
On my plan it shows a ladder to be installed near the kitchen. This was not done. A large hole was cut out in the opposite end of the room, in the upper floor nearest the hallway into the wet area. We puzzled over this ‘opening’ – the size and the angle. It would have been impossible to fit a ladder in that spot, if that was the intention.
The EC & SM just want us sign this by-law and all this will go away.
They have my engineer’s certificate that the work to my upper floor is completed and satisfactory. I paid for work, that should be the end of it.
But no, they want to cut of their nose to spite ‘me’ and in doing so place the strata in financial ruin.
Hopefully our appeal to NCAT could meet with success.
Janet
That’s fine, I suggest you stick to the position for now of saying you won’t comply with any resolution re removal of the stairs for now, and that you won’t sign any by-law.
More generally:
– stairs are not ladders and ladders are not stairs. They are two very different things. So for example if development consent were given for a ladder, that is not development consent for stairs.
– from the information you have given, it seems that the Council has never given approval for stairs. The statement on the Council file saying building work has been completed satisfactorily is not relevant to the stairs. The only document that you can rely on in relation to approval is approved plans, and any modifications and subsequent development approvals.
– the fact that you were sold the villa without a certificate is also irrelevant. When someone buys a property they should make their own enquiries, which would include inspection of council records, to ensure that what they are buying is ok, i.e. has Council approval etc.
As for the role of the OC – they are not a planning authority. It is not up to them to determine whether something is legal or not – only Council can do that. They can pass any resolution they like, but they can’t say whether something is legal or not. Ultimately that decision rests with the relevant authority which is the Council. Note that you could apply for approval from the Council now, although they may require alterations to bring what you have within scope of requirements.
You are right that the OC can make your life difficult, but there is another aspect to this – if the stairs are illegal, then the OC may be liable for any damage or injury that results from something going wrong, taking into account that they are aware there is an issue. As an owner you are also liable, and bear in mind that insurance may not cover the OC in circumstances where they are on notice of an issue and do nothing about it.
An update:
Council have been aware of the situation with my villa for the past year. I have been careful to keep council not to accuse council any wrongdoing. This may now help in my application for building approval for the stairs.
Council will have another look at my file and I expect a phone call from the chief building surveyor. It was indicated that this procedure would not take a long time.
The EC are sharpening up in that all recommendations by their engineer are now being quoted and work will commence shortly. On Thursday a surveyor will take levels within and without my villa, to see how much sag there is to the slab.
We have our phone conference on Monday with NCAT with the OC as respondents.. The instructions are to have all documents to hand. And that an decision is made at the end of 30 minutes as to whether the matter goes to a second hearing, or orders are made or the appeal is dismissed.
As NCAT already have all document ion and evidence I can’t quite fathom the point of the phone conference.
Thanks agains to scotlandx and whale . I would not have become so calm without your assistance.
I think I see some light at the end of the tunnel.
Janet
The plot thickens!!
Council have said the upstairs floor to my villa is NOT COMMON PROPERTY.
Council will confirm this in writing on Monday.
So all of this saga was because the SM and the EC. One or both failed:
1 To check the Strata Plan on which the only CP (common property) sighted is the stairwell to the 4 unit block which is part of our 10 lots.
2 Or they knew my upstairs floor was not common property but went ahead with the SBL and then the 90 day notice to remove the stairs out of vindictiveness. A year of hell.
The solicitor, hired by the EC, drew up a response for the OC to our application for orders. He drew up the SBL that all owners are required to maintain/repair their upper floor/staircase.
In most paragraphs for the SBL, common property is mentioned. Did the SM not give the strata plan to this solicitor? Did the solicitor not ask for a strata plan?
Council have verbally admitted that the developer installed the stairs, that they knew about it, but that there were so many other issues at the time, they did not order the stairs removed. I will not be passing on this info.
I was shown the paperwork that proved ‘drop down ladders’ were to be installed in the villa. Not stairs, not ladders.
Council will not put this in writing. They have advised me to let ‘sleeping dogs lie’ as they feel my stairs would not meet Australian Standards. (the measurements of the risers and treads). They do not want to order me/us to remove the stairs.
At the EGM 17th June, the SM still claimed he would swear in a court of law that the stairs were illegal. That he was involved as a then RE agent and sold the land to the developers. That he was involved in some of the sales of the villa.
We are angry, amazed, gob-smacked that this SM is such a liar. He knew all along the stairs were installed by the developer and we are fairly certain that the EC were aware of all this as one committee member has been in the complex since it’s commencement.
Are the stairs illegal? That is now a moot point.
I hope we are successful with our application for a Compulsory Manager and a Special Levy to top up the admin fund.
I will be moving on after we have a ruling. Never strata, never again.
Janet
Janet – I really, really don’t want to rain on your parade, but I sincerely hope that its facts and not just an interpretation or opinion that Council’s expressing, because it’s usual in my experience for the floor to the first level of a townhouse or villa and the ceiling above to be common property – and your stairs impact upon both those areas.
It would be great if you could prevail upon Council to at least go public about the fact that the Developer installed the stairs, presumably prior to the issue of its Certificate of Occupancy, because without that being on the record you may yet be lumbered with the lesser of all the potential evils that you’ve been facing, by having to replace your Lot’s stairs with a drop-down ladder.
Hi Whale
I take your point. While it is raining on my parade I might shed a few tears.
You are right. It is only council’s interpretation.The only CP on the strata plan is the stairwell in the block of 4 units which is part of our 10 lot.
The ‘member’ today was quite fair during the ‘phone’ conference but I found his accent a little hard nor could I understand the legalities.
The EC appointed the SM to speak for them. This was difficult as he is conversant with these situations and I really had to stand up to him.
Although other people were on the phone it became an all out battle between the SM and myself.
The ‘member’ asked why I thought having a compulsory manager would solve any of the problems within the strata.
I said that there was no trust, that I/we believed the strata was dysfunctional and that we were unfinancial.
At that point I realised that the ‘member’ had not read anything. I had to explain our financial situation to him.
The result:
The SM gained permission for the OC to commission a strata lawyer. I was granted the same right. We have 28 days to file submissions.
The ‘member’ told me to apply to have the Motion for the 90 day removal of the stairs rescinded. He advised me to get a solicitor.
The ‘member’ seemed confused and stated that the application had been dismissed. I explained that this was an appeal based on the untruths stated by the SM in response to our application. We had proved these untruths. Along the way we had asked for a further order for a Special Levy for the Admin fund.
Time and again I had to remind the ‘member’ that the evidence was already before him.
The SM tried to have to whole matter dismissed. The ‘member’ refused, stating that it was too complicated.
I don’t think the matter is going to a hearing. But the last part I did not really understand about the legalities and what happens next.
Whale, what if the upper floor had a certificate from council, (which I have), stating that it was attic/storage area and not habitable, would that still be seen as Common Property?
I could ask council to make a written statement that the developer installed my stairs. That would then leave council open to litigation if the stairs were not to Australian Standards.
I have requested a private Building Surveyor to report on my stairs. He said it could go two ways. Apply for continual use of the stairs for an area not frequented very often or Apply for continual use of the stairs for an area that was habitable. I am most curious about the outcome of this report.
What council said last Thursday/Friday: Sorry if I am repeating myself.
They had written to the developer about the stairs. Asking him to reapply for approval or remove them. They did not get a response and did nothing. She said when the time came there were too many other issues to resolve with the developer and so the stairs stayed. There was supposed to be drop down ladders.
The SM is fighting tooth and nail with his assertions that ladders were to be installed by the developer. He knows the stairs were installed by the developer.He was here. He was a then real estate agent.
I cannot fathom the powerful will of the EC and SM that we sign this SBL.
Janet
Janet – in my opinion, the fact that the Council has supplied a certificate stating that the attic/storage area is not habitable doesn’t change the fact that the area and the access to it, whether that be by stairs or a drop-down ladder, is likely Common Property.
That makes your Owners Corporation (O/C) entirely responsible for the maintenance and repair of the above, provided you and the other Owners involved haven’t contributed to any damage such as the sagging to which your past posts have referred or haven’t used the area improperly such as by making it a habitable area, in which instances you could be held partly liable for rectification costs.
That, in my opinion, is why your O/C is pushing so hard to have you and the other Owners agree to a Special By-Law, which amongst other things seeks to make each of you liable for those maintenance and repair activities within the attic/storage area and the attached stairs/ladder for which it (the O/C) would be currently responsible IF those areas are as I suspect Common Property.
You’re seeking more expert advice, but in the meantime perhaps contact NSW Land & Property Information and seek their advice about the areas of your Plan that are shown as Common Property on the Strata Title Plan; they’re usually very helpful, but you may have to personally attend their Offices in this instance.
Finally, I know that you’ve been patient throughout this whole process, but I’d encourage you to look hard for a compromise, such as one the that I believe I suggested earlier whereby the O/C would make the necessary repairs to its Common Property attics / storage areas etc, after which the Owners would agree to the Special By-Law that thereafter transfers that responsibility to the individual Owners involved. Maybe talk to your Lawyer about that.
By the way, your experience at the NCAT is consistent with what too often happened in the old CTTT; as I said once before, different horse with the same jockeys.
Janet – Council could be referring to the “cubic air-space” of the Lots which is not Common Property as opposed to the boundaries of those Lots such as the walls, floors, and ceilings which is.
It may be best to leave further posts until such time as the issues are resolved, at which time I for one would be very interested to read the outcome; good luck once again!
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