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  • #60576
    waylor
    Flatchatter

    Hi Forum

    Is there a section of the Act that protects an individual owner when that owners lot is adversely affected by the addition or change to common property.

    • This topic was modified 3 weeks, 6 days ago by .
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  • #60617
    Jimmy-T
    Keymaster

    We’ll need more detail. Does it directly affect your lot or indirectly?  For instance, have they moved a fence on to lot property or built a structure that now overshadows your property without touching it?

    Your question is a bit vague which is I think why no one has answered it.

    • This reply was modified 3 weeks, 6 days ago by .
    #60640
    waylor
    Flatchatter
    Chat-starter

    Thanks Jimmy T

    We are 1st level in a west facing 7 level block Circa 1970 . There are two 1st level west facing apartments. Below us was an internal entry foyer. Our apartment got pretty warm in hot months and our strata OC had prevented us from installing an A/C as any such installation must be wholly within the lot. We don’t have a balcony for the outdoor unit. We have 20 years here and we had decided we could tolerate the summer heat we were experiencing OK.

    About 6 years ago, and despite our protests, the OC went ahead and added to our common property, a front portico. The roof structure is at our lounge-room floor level and projects 3m out front. We have lost the visual of our quite nice front gardens BUT as a consequence of the roof, we now have temperatures at the front of our apartment (which we have logged) on hot days 20 to 30 percent higher than pre portico. So already this summer we have had 50 degrees C, as opposed to other west facing apartments (we have a temperature logger on a 4th floor west facing apartment) reading 40 degrees C. The math changes, – breeze or no breeze etc..

    That reading on a day when outside BOM temp was 32 degrees.

    The situation heat is now intolerable. Some temperatures recorded last summer were just under 70 degrees C. It is referred to as heat pooling and we have it in spades. Last and the summers before we have had to leave our apartment as health became priority. We know the portico addition is the culprit!

    Our SC have been unhelpful. We have updated the temperature loggers and they now post a weekly report of temperatures read every 5 minutes in 3 locations. We now have our proof and will proceed with a claim in the first quarter of 2022.

    Long story – but you did ask!

     

     

     

     

    #60652
    kaindub
    Flatchatter

    From your description, it seems you have been adversely affected by the common property addition.

    And you possibly have a case against the OC.

    However it’s not as clear cut as pointing to a section of the act and getting relief.

    You should engage a good strata lawyer to advise you. If you decide to pursue this action, then it’s probably going to be an expensive exercise because of the technical nature of the dispute.

    As a matter of interest, what outcome do you want?

    #60656
    waylor
    Flatchatter
    Chat-starter

     

    Somewhere in the SSMA I recall reading that a CP addition must not impact the livability of an individuals lot.

    I just hope there is some protection as there should morally be.

    What I don’t want is the intolerable heat. The portico addition was about 70k and it is useful for the owners in general and does look good unless you are in our circumstance. The committee response so far has amounted to suck it up!

    Removing it would restore our amenity to pre portico and would be an acceptable outcome.  I think the owners – in whatever way – should restore our livability! Their decision took it away after all.

    Maybe facilitate and pay for a very good A/C would be immediate ASAP relief. As mentioned we have now gone through this for six summers – its time someone cared. I don’t think WE should be criticized which is the narrative from the SC so far.

    One thing I do know is that the OC decision has made life very difficult for my wife and myself.  We did intend to live out our lives in our perfect apartment in which we have invested heavily. Being an almost 80 yo this dilemma is one I could have done without.

    We will NOT move out and leave the problem to others.

     

    #60661
    Jimmy-T
    Keymaster

    Somewhere in the SSMA I recall reading that a CP addition must not impact the livability of an individuals lot.

    I can’t find that in those words but it doesn’t mean that the responsibility doesn’t exist in a combination of a number of sections of the SSMA, the Regulations and the Strata Schemes Development Act.

    You really need to speak to an experienced strata lawyer and there are a couple of excellent ones advertising at the top of this page.

    Just make sure that if you do end up at NCAT, you apply for costs.

    #60664
    kaindub
    Flatchatter

    Since you have mentioned your age, I understand your hesitancy in tackling the issue head on. A fight against the OC is draining enough on younger and fitter people.

    Unfortunately, the law does not deal with what is morally right, only what is right in law.

    Even if there was some clause inthe act for your dilemma, it’s often necessary to take legal action to enforce your rights.

    A good lawyer will be your best asset, but be aware that legal action will take significantly longer than you expect; it will be costly to you since you have to pay your lawyers and experts before you are awarded costs, and there is no guarantee of success.

     

    #60687
    chesswood
    Flatchatter

    Before talking to your lawyer, read s.90 of NSW SSMA carefully and you’ll see that you might be able to get the OC’s costs charged only to the culprits, perhaps the committee members.

    #60699
    Jimmy-T
    Keymaster

    Before talking to your lawyer, read s.90 of NSW SSMA carefully and you’ll see that you might be able to get the OC’s costs charged only to the culprits, perhaps the committee members.

    Section 90 is there to prevent owners who take legal action or are subject to it, and win their cases, from being charged their share of the legal fees that would normally be distributed according to unit entitlements.  I have never heard of committee members being isolated and charged with the costs of legal action they have either instigated or defended.

    The committee acts as representatives of the whole owners corporation (Section 36) while Section 260 specifically states that the officers and members of the strata committee, if they have made an error in good faith and within the restrictions of strata law, can’t be subjected to any “action, liability, claim or demand.”

    If costs were awarded, then they would be against the whole owners corporation with the possible exception, under section 90, of the plaintiffs.   If the other owners have a problem with that, then they should think more carefully about who to elect as committee members.

    #60701
    Sir Humphrey
    Strataguru

    I agree with ‘Talk to a lawyer’.

    I suspect that the remedy might come from common law or other legislation, not specifically strata legislation. The OC is one ‘legal person’ who has done something that had an adverse effect on another person (you).

    I think you would be greatly helped by having some sort of expert report that documents and demonstrates the effect of the portico on your unit, even if you think it is all pretty obvious.  I have the impression from a few visits to the Tribunal that they very much prefer having a sworn expert witness who can provide technical advice. They don’t seem to like nearly so much well reasoned and evidenced arguments from non-experts, even if those non-experts are intelligent and the technical matter is not ‘rocket science’.

    I would also assume on the face of it that it was not obvious before that the addition of the portico would have any adverse effect on any unit but it was an obvious benefit to the owners generally. IE I think it can be assumed that there was no malice involved. However, that should not mean that there should not be some sort of compensating remedy now that it seems there was a detrimental effect to you.

     

    #60708
    waylor
    Flatchatter
    Chat-starter

    Thank you all for your thoughts. We will continue with temperature monitoring through this summer and then re visit the issue with the OC.  With the recorded facts we can firstly hope for a better outcome.

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