Converting a dumb-waiter to a lift

@Petard said:
Our upstairs duplex owner has informed us of their intent to convert their aged and excessively noisy dumbwaiter into a lift – to carry people instead of groceries and luggage. The dumbwaiter joins their basement garage to their floor above our apartment; the shaft runs through our bathroom. They claim that it won’t have anything to do with us, nor will require any council approval.

To quote The Castle, tell them they’re dreamin’.  It’s a shame you can’t convert dumb people into elevated characters as easily.

1. This will almost certainly require council approval.

2. It will seriously affect common property and will therefore require a 75 percent vote in favour (i.e. your approval).

3. The Strata manger is right – he needs to see the detailed plans

4. The upstairs owners need to take care of all the legal expenses involved in what I think would be a series of by-laws to protect you as co-owners and the building as a whole.

5. There has to be legal protection for you from noise during the construction and daily operation of the lift written into the by-laws.

On the plus side, this may be an opportunity to sort the dumb waiter noise problem which, if I recall correctly, brought you to Flat Chat in the first place.

The good news is that because of the special resolution requirements, you have the whip hand here.  Nothing happens without your say-so.

At the risk of being accused of shamelessly spruiking our sponsors, the first call I would make would be to Chris Mo’ane of IBC (because he will understand both the engineering and legal implications of all this) and the next one would be to your neighbour saying if they don’t listen to (and pay for) your choice of expert then they can keep climbing those stairs.

Why would they pay for IBC or any other consultant?  Because whoever is giving them advice at the moment is an idiot who doesn’t understand the first principles of strata living or strata living.

It’s to their advantage to get properly qualified and experienced professionals in right from the start.  It will save both parties money and heartache in the long term because you won’t spend the next two years at the CTTT and Supreme Court fighting over bad decisions based on irresponsible advice.

It’s as simple as that.  Ask them if they’re serious and, if they are, lay out the conditions for your approval without which this plan won’t get past square one.

I admire your patience but I think you might be right that these clever-clogs are stalling.  If there is a continuing problem with noise form the dumb waiter, you should pursue this with the CTTT and, at the very least, demand that they show you the plans. 

If they have no plans drawn up, you can assume it’s a smokescreen and demand that they fix the noise problem regardless of their fanciful notions of installing a lift. 

However, I suspect strongly (as i think you do too) that they may be having a lend of you.

We have read the comment from Petard – the first question that needs to be answered “who owns the dumb waiter”?  If it is common property, and not subject to an exclusive use by-law in favour of the upstairs lot, then the Owners Corporation itself needs to repair the dumb waiter so that it doesn’t make any more noise.  If the dumb waiter is owned by the upstairs lot or is subject to an exclusive use by-law which contains a clause imposing the obligation for repair and maintenance on the owner of the upstairs lot, then the owner of the upstairs lot must be required to repair the dumb waiter so that it stops making the noise.  A further variation is that the dumb waiter may be subject to an exclusive use by-law which imposes on the Owners Corporation’s responsibility for repairing and maintenance.  If that is the case, then, once again, the Owners Corporation will be responsible for the repair and maintenance. 

As to obtaining an injunction, we sympathise with Chris’ approach; however it may prove somewhat problematic with injunctions generally not being available in circumstances where an applicant is seen to have agreed to work being undertaken or delayed in taking any action. 

This is only very general advice. You should seek specific advice prior to taking any action – or allowing the matter to continue without taking any action.

@Petard said:
The ‘shaft’ for the dumbwaiter is not shown on the strata plan. Our apartment, #2 does not have any access doors for the dumbwaiter; the access doors are on the basement level of apartment 1, one floor below ours, and in apartment 1, on the level above our apartment. I can only guess that the dumbwaiter, its equipment and shaft are the property of apartment 1. I cannot believe that the Owners’ Corporation would have any responsibility for it. I think it’s safe to assume that apartment 1 is solely responsible for its use, maintenance and of course the noise it makes.

If the proposal for removing it and replacing it goes ahead, I wonder if I’m able to impose some sort of conditions for its construction and assembly (slides versus rollers), sound insulation, its use re noise and hours of operation, as the shaft runs directly through one of our rooms!

This question has remained unanswered for a while – apologies for that – but I would be very surprised if the structure around the lift shaft wasn’t common property.  And yes, of course, any changes that affect common property and the “peaceful enjoyment” of other lots, require Owners Corp permission.  

The people on the top floor of my buiding are the only ones who have access to their lift lobby or the top four metres of the lift shaft – that doesn’t make that bit their property. No one else has access to my ceiling but it is still common property. 

When you sa “I can only guess …” that is exactly what you are doing. There is a huge difference between the lift shaft (which will be part of the structure of the building) and the mechanics of the lift which quite clearly aren’t.

However, there is little point in to-ing and fro-ing with questions based on what your neighbour says and what you think – quite clearly neither of you are experts on strata law and what you need more than anything is a definitive answer from an authoritative source plus an enforceable order about what your neighbour can and can’t do and what kind of conditions you can impose on their plans.

I have provided a link to the appropriate form in my posting below.  You want an order from the CTTT that the lift shaft is common property (even if the mechanicals inside aren’t) and that your neighbour can’t make changes to it without your permission.

Mediation is a compulsory step before you can get a CTTT order.  I believe you have every chance of success if you take this step now and there is really no point in offering any more advice on this issue if you aren’t prepared to do that.