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Topic
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It’s been a year since our neighbours in our two lot duplex built a fence on common property which we look onto from four of the six rooms in our apartment. (They also went ambush style into the common property roof and put in insulation, but that's for another post.)
The fence has caused us loss of light and a darkened outlook (it is a dark brown brushwood fence), it has taken away our common property tropical garden palm view (the neighbours assumed this into their side of the fence and left us staring point blank at a fence) and it has lessened the value of our property, in our eyes and in the eyes of two real estate agents who have assessed it.
After we asked the neighbours to remove it and they refused, we put an application into the CTTT. The Adjudicator ruled a 6 month compliance period in which the neighbours need to take the fence if they can’t get our consent prior to keep it. The deadline was early May 2011.
We hear nothing from the neighbours until a day before the final compliance date, when we receive an Interim Order from the CTTT put in by our neighbours, saying that an extension has been granted to our neighbours because they have been busy with work and had a baby and we were not contactable for discussions for 3 months of the 6 month compliance period. (not true)
What the….? Aren’t Interim Orders reserved for urgent matters? Does this mean CTTT has set precedence for all people with work and family commitments to be able to get extensions on orders placed on them?
And too busy to take a fence down? It would have taken the neighbours around the same amount of time to put in an Interim Order to the CTTT and they found the time to do that.
We put in a submission against the Interim Order stating many good reasons why indeed the fence needs to come down in accordance with the original order but the CTTT sent us a 2 sentence letter back saying an extension has been granted for an additional 3 months. No reasons stated.
And it gets weirder. We then get an order from the CTTT put in by the neighbours as to why the fence should stay! So the CTTT ruled it must go, then extended the period of time it could stay, and are now allowing the opportunity for it to stay?
Here we are beside ourselves putting in yet another document to the CTTT, now having to defend this fence from becoming a by-law. We have stated all the reasons to the CTTT in our latest document, as we have earlier, as to why the illegal fence cannot remain in its position on common property.
We would appreciate any advice on this matter. One of this neighbouring couple is a powerful lawyer and the other has real estate experience. We are shocked that the CTTT rulings have been so inconsistent and concerned that our neighbours know how to manipulate the law and will eventually find a way to make this illegal fence stay.
Can we seek a CTTT hearing? Can we request for the CTTT Adjudicator to visit our strata to view the injuries the fence causes us? Experts, what would you do?
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The selfish, greedy behaviour of your neighbours disgusts me.
I suggest you contact one of the lawyers who contributes to this forum right now and go for it, mentioning you want to be sure costs of your legal action will be awarded to you. That should be OK because you are in the right, after all.
The lawyers will tell you whether to 'go the neighbours' or not, but suing your own Owners Corporation and going for costs should make the Executive Committee see things fixed pretty quickly.
I fully emphathise with you. We had an owner build a fence without even a motion (forget bylaws!). Not just that he also put a gate in his balcony railing! We took the matter to adjudicator, hearing but lost. Why? because the executive committee covered up by holding a meeeting AFTER the fence was added. This is strictly not allowed especially for additions. The CTTT ruled that the fence adds to the security of the building and the gate inserted in his balcony to access the now “not so common property” is like adding a door to your house! Gee even my kindergarten daughter can see this is wrong.
Ok, everyone repeat after me – the CTTT is a waste of space.
Don't know if this helps but you can appeal to a higher court
District Court appeals
Appeals may be made to the District Court of NSW under section 67 of the Consumer, Trader and Tenancy Tribunal Act 2001.
The grounds for an appeal to the District Court is that the CTTT made an error when it decided a question with respect to a matter of law. Appeals to the District Court must be made within 28 days from the date the CTTT's order is made.
Contact the District Court of NSW for further information on the appeal process.
Supreme Court appeals
Appeals may be made to the Supreme Court of NSW under section 65 of the Consumer, Trader and Tenancy Tribunal Act 2001.
The grounds for an appeal to the Supreme Court include that there was a denial of procedural fairness or that the CTTT did not have jurisdiction to make the order.
Contact the Supreme Court of NSW for further information on the appeal process.
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.
I fully sympathise with the owners of the Duplex, I am having similar but more extensive problems with my neighbours who flout virtually all strata laws. What I cannot understand is “what are Strata Laws?” Are they real Laws? Or are they just documents for manipulative people within the strata to break laws for their own gain,and use them to harrass any one who gets in their way.
Here's the process:
1. Mediation application & hearing (usually through Dept. of Fair Trading). Mediation fails.
2. An application & reply is filed with the CTTT. Based only on the written application, a CTTT Adjudicator makes an Order.
3. An appeal application is filed in the CTTT against the CTTT Adjudicator's Order.
4. A brief directions hearing is held by a CTTT Member. The Member hears the matter briefly, but doesn't make a decision. This is your first opportunity to present your case orally in the Tribunal.
5. A full hearing is heard by the CTTT Member. This is the most important stage, because a final Order is given with no more appeals (except in very limited cases). The hearing often goes for about an hour, and you both present your cases orally (either in person, or by teleconference). The Member makes an Order that same day. It's very important you attend this hearing, preferably in person or otherwise by teleconference.
From what you wrote, I don't know which stage of the process you're in. Stage 5 is the only stage that matters, because appeals and delays are common in the CTTT process. Some people abuse the system by delaying it by seeking adjournment after adjournment. The CTTT don't like this, but if they refuse an adjournment request they risk opening a new can of worms for litigious people to lodge further appeals, so it's easier to acquiesce.
Anyway, don't be intimidated of your neighbours having legal & real estate industry training. Unlike the court system, the CTTT's designed for ordinary, unrepresented people, so the Member takes an active role in asking questions from both sides in an investigative fashion.
If you hire a lawyer for a CTTT matter, bear in mind that you must pay your own legal fees even if you win. The only exception is if your opponent filed an appeal application that was frivolous, vexatious, misconceived, or not a CTTT matter.
Finally, the CTTT don't have the resources to visit your building. They don't even have the resources to read an application more that are more than a few pages long. This is why oral evidence in a hearing is so useful. The onus is on you to provide as much relevant evidence as you can so that they don't have to visit your building, and lack of evidence may cause you to lose your case. Include photos, diagrams of the strata plan showing they've built on common property, written real estate valuations stating it's diminished in value, etc. As long as the evidence is relevant, the more evidence the better.
T said:
Finally, the CTTT don't have the resources to visit your building. They don't even have the resources to read an application more that are more than a few pages long. This is why oral evidence in a hearing is so useful.
We had a case in 2008 where CTTT flew a Snr Member 800km to hear the case, the Member then traveled by car 35km from the OFT building to the SP to make an inspection before returning to the OFT building to hear the case. The Member ultimately made a decision that seemed to be in contrast to 5 previous orders on the matter but the effort is the point.
In contrast to that the same SP has recently had two rather trivial matters and both times the matters were dealt with by phone from Sydney. That the cases were not dealt with by one of our well qualified, and not too busy, local Members was quite unusual.
The last time i was in Sydney I dropped in to CTTT HQ and sat in on a case being conducted by a Snr. Member. The applicant spoke for about 15 minutes and the whole time the Member just flicked through paperwork without even looking at the applicant. I believe the paperwork was for another matter. It was very cold from a CTTT Snr Member.
Oral evidence is not worth much if the Member is too busy looking over other more important matters.
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