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14/11/2013 at 7:02 pm #9153
I have recently been served a notice in relation to a breach of the by law regarding putting screws into common property walls. There are at least 7 other units in our block of 14 where owners have breached the same by law – inserting screws, drilling holes in front doors, affixing external sun blinds, painting common property walls to match their interior. These are only the instances I can see from outside the building.
Of course most owners have hung artwork, or mirrors and painted common property walls over the last three decades.
My question is – can this by law be selectively applied to me or is the Owners Corporation required to be even handed in by law breach notices?
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14/11/2013 at 11:02 pm #20150
In short the answer is yes, the by-laws should be enforced evenly. The examples you cite though include a wide variety of issues and I would assume different levels of severity so it’s hard to say what issues may be more important than others to the committee.
Also, can you be sure that the other 7 residents have not received breach letters as well?
14/11/2013 at 11:37 pm #20151Interesting. If the notice tells you to comply with a by-law that says you shouldn’t put nails in common property, then to comply surely all you have to do is not put in any more nails. Or does it say something else (or am I being dumber than usual)?
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.
15/11/2013 at 7:12 am #20153@JimmyT said:
Interesting. If the notice tells you to comply with a by-law that says you shouldn’t put nails in common property, then to comply surely all you have to do is not put in any more nails. Or does it say something else (or am I being dumber than usual)?The notice requires me to remove the screws and the shelf they support. Of course I can do that.
My issue is that I feel I am being discriminated against when other owners have also breached the bylaw but have not been served a breach notice.
There is absolutely no history of any approvals having been given in relation to this by law in the life of the strata plan
15/11/2013 at 7:25 am #20154@just get on with it said:
In short the answer is yes, the by-laws should be enforced evenly. The examples you cite though include a wide variety of issues and I would assume different levels of severity so it’s hard to say what issues may be more important than others to the committee.Also, can you be sure that the other 7 residents have not received breach letters as well?
Thanks for your answer.
I agree there is a wide variety of items quoted related to the by law. I can also imagine the relative severity of an item may be a reason for approval to be given or withheld once an approval has been requested by an owner to the owners corporation.
In all these cases there has been no request for approval made to the owners corporation and therefore I believe we are all in breach of the by law. In that case I would expect all owners to be treated similarly
Yes, I am sure no other breach notices have been issued.
15/11/2013 at 9:09 am #20157Just to make sure everything is as it should be, did the Notice to Comply (NTC) come on THIS FORM. If not, it is meaningless. Also, did it come from the secretary of the EC, in which case there should have been an EC meeting that discussed the breach and minuted the result. Again, no meeting or minute, no problem.
If you feel you are being discriminated against, you could take a counter–claim against the Owners Corporation at Fair Trading in which you ask the Owners Corp to grant permission restrospectively or issue NTCs to all owners for their shelves, pictures and mirrors.
You will be able to present this argument at a mediation where, at least, you will be able to get to the bottom of why this is happening. Use THIS FORM to apply.
The application will cost you $78 (unless you are over 60 or a pensioner, in which case it’s $10).
Or you could let them take you to the CTTT to have a penalty applied – this costs you nothing except your time. The CTTT will bounce the NTC if all the paperwork isn’t correct, could impose a minimal fine, if any, and may in fact decide the NTC is discriminatory and reject it on those grounds.
But let’s assume there was an EC meeting and a decision to issue the NTC, or your strata manager was using delegated powers.
In that situation I would write them a note telling them that you believe the notice is discriminatory and why and that you are happy for them to take the matter to the CTTT where an independent arbiter can decide on a penalty, if any.
By the way, I’m not advocating free-range nailing and drilling of common property walls but once it has been done, and disaster hasn’t befallen the building, I would wonder why anyone would care.
If this is becoming a problem throughout the scheme, what your building needs is a sensible by-law that allows people to do that kind of work but bear the full consequences if they don’t use a licensed builder, or do it badly and common property or other owners’ personal property is damaged.
Persecuting individuals is not the best way to look after common property.
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.
15/11/2013 at 12:09 pm #20162@JimmyT said:
Just to make sure everything is as it should be, did the Notice to Comply (NTC) come on THIS FORM. If not, it is meaningless. Also, did it come from the secretary of the EC, in which case there should have been an EC meeting that discussed the breach and minuted the result. Again, no meeting or minute, no problem.If you feel you are being discriminated against, you could take a counter–claim against the Owners Corporation at Fair Trading in which you ask the Owners Corp to grant permission restrospectively or issue NTCs to all owners for their shelves, pictures and mirrors.
You will be able to present this argument at a mediation where, at least, you will be able to get to the bottom of why this is happening. Use THIS FORM to apply.
The application will cost you $78 (unless you are over 60 or a pensioner, in which case it’s $10).
Or you could let them take you to the CTTT to have a penalty applied – this costs you nothing except your time. The CTTT will bounce the NTC if all the paperwork isn’t correct, could impose a minimal fine, if any, and may in fact decide the NTC is discriminatory and reject it on those grounds.
But let’s assume there was an EC meeting and a decision to issue the NTC, or your strata manager was using delegated powers.
In that situation I would write them a note telling them that you believe the notice is discriminatory and why and that you are happy for them to take the matter to the CTTT where an independent arbiter can decide on a penalty, if any.
By the way, I’m not advocating free-range nailing and drilling of common property walls but once it has been done, and disaster hasn’t befallen the building, I would wonder why anyone would care.
If this is becoming a problem throughout the scheme, what your building needs is a sensible by-law that allows people to do that kind of work but bear the full consequences if they don’t use a licensed builder, or do it badly and common property or other owners’ personal property is damaged.
Persecuting individuals is not the best way to look after common property.
Jimmy, Thanks so much for your detailed response I really appreciate your time and expertise.
I have spoken to the Strata Manager who advises this is a notice of a breach of by law and a request to comply. If I don’t comply the SM will refer it to the EC for them to request a formal NTC. Then your process can kick in.
Like in real life it would be so much easier if owners talked to each other before firing bullets!!
I will be proposing a by law similar to your suggestion at our next EGM/AGM
Thanks again
15/11/2013 at 2:07 pm #20165@mac said:
I have spoken to the Strata Manager who advises this is a notice of a breach of by law and a request to comply. If I don’t comply the SM will refer it to the EC for them to request a formal NTC. Then your process can kick in.Mac
I would say, as nicely as possible “bring it on”.
At the EC meeting, you can ask to speak and then ask why you have been singled out, what the problem is and if there isn’t a better way of dealing with these issues.
If they refuse to let you speak or refuse to answer your question, this is further evidence that they are not really interested in running the building properly and instead just want to order people around.
In fact, I would be very surprised if this wasn’t one owner flexing their strata muscles via the by-laws. The EC has no compulsion to enforce the by-laws if they don’t think that is necessary (although individual owners can take action if they feel they should).
So ask for your moment in the spotlight and make it clear that you are happy to comply with reasonable requests that are universally applied. There is an old saying that bad laws are worse than no laws and it could be that your by-laws fall precisely into that category.
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.
15/11/2013 at 9:51 pm #20170bylaws are there for a good reason every owner has the right to expect that the bylaws will be enforced .if the ec and strata manager does not enforce them you end up in a shit strata complex just like the one i am in .most strata managers could not organise there own breakfast.are there any strata dwellers in perth wa that are of the same opinion why do we pay strata management companies for?
25/01/2014 at 1:26 pm #20748@JimmyT said:
At the EC meeting, you can ask to speak and then ask why you have been singled out, what the problem is and if there isn’t a better way of dealing with these issues.
If they refuse to let you speak or refuse to answer your question, this is further evidence that they are not really interested in running the building properly and instead just want to order people around.
JimmyT, while I agree with your advice, how would Mac prove he had attended the ECM, regardless of whether he had been allowed to address the high & mighty?
26/01/2014 at 8:28 am #20752@daphne diaphanous said:
JimmyT, while I agree with your advice, how would Mac prove he had attended the ECM, regardless of whether he had been allowed to address the high & mighty?
Selfies?
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.
26/01/2014 at 10:27 am #20754Would he be permitted? If not, even if he takes them, he wouldn’t be able to show them to anyone legally, which means no evidence.
26/01/2014 at 11:46 pm #20757
@daphne diaphanous said:
Would he be permitted? If not, even if he takes them, he wouldn’t be able to show them to anyone legally, which means no evidence.Who says he wouldn’t be able to show them to anyone? And who is going to stop him taking the picture?
First of all there is no general legal right to privacy in Australia (although there are right to privacy specified in certain laws).
For instance, you cannot record a conversation without the participants’ knowledge (NOT permission, a common misconception). You can record someone by waving a microphone under their nose, then if they don’t want to be recorded all they have to do is stop talking. The point is, they are aware that they are being recorded.
You can film or photograph anyone doing anything provided they are not engaged in private acts in private. There are some new laws related to video taping of a sexual nature but they would clearly not apply in this situation and whether or not a strata committee meeting room is a private place is moot.
But if there was a real danger that these people would claim the person was not at a meeting when they were, a selfie with the others in attendance in the background would be an innocent way of documenting the event … provided you didn’t record sound without their knowledge.
There might even be a by-law that says you aren’t allowed to tape or photograph meetingd. Even so, I can’t imagine any circumstances at Fair Trading or NCAT (formerly the CTTT) that a picture taken as proof of attendance at a meeting would be rejected as evidence because photography “wasn’t allowed”.
I think maybe we’ve all watched too many episodes of “The Good Wife”.
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.
27/01/2014 at 9:35 am #20758JimmyT, I don’t watch “The Good Wife” for starters (I find Foyle much prettier). As for the selfies, my understanding is that the ECs don’t have to admit non-committee members & can stop the meeting until the offending party departs. What can he prove without a sound recording he can share? I don’t mean to take this to the nth degree, but malice of the strata Hitlers seem to know no bounds, judging by what I have read in this forum & elsewhere.
27/01/2014 at 9:53 am #20759This is a most interesting discussion. I too have been issued with a notice to comply. After 18th months of asking for repairs ( during which I was requested by BM to provide a quote, ) I got the work carried out. I live in a strata where numerous owners have carried out work without any issue. I did speak at the ECM and raised all the issues…. Blank looks in return! a number of owners were at the meeting and other owners have contacted me with similar complaints. I intend taking it to OFT to bring out in the open the way the scheme is being managed and the discrimination against owners who dare to ask for repairs. As a sideline, it appears owners feel very intimidated by the OFT process. It is time consuming and one is treated poorly if a submission misses on a point of law. We are not solicitors and there should be legal advice provided by the government to hasten and ensure the process is fair to all parties. My strata employs a solicitor to deal with issues leaving owners very disadvantaged. Perhaps this forum could focus on driving a change of policy?
27/01/2014 at 12:36 pm #20763Just jumping in on a couple of the more recent issues:
daphne said: my understanding is that the ECs don’t have to admit non-committee members & can stop the meeting until the offending party departs.
Incorrect – any Owner can attend an E/C Meeting, but cannot actively participate without the consent of the Chair.
and: how would Mac prove he had attended the ECM..?
justsaying (just) said: I did speak at the ECM and raised all the issues…. Blank looks in return!
Apart from providing an Agenda to each Owner and/or placing it on the Notice Board 72 hours in advance, the Secretary is required within 7 days to prepare and distribute the Meeting Minutes in the same way, including the details of all attendees (not just participants).
So rather than worrying about the legalities or otherwise of photographing and/or taping E/C Meeting proceedings, daphne and “just” should either attend and themselves take contemporaneous notes which can be relied upon in legal proceedings, or better still submit a Motion for the Agenda for the next E/C or General Meeting pointing out the requirements of the NSW Strata Schemes Management Act (1996) for holding and reporting on the former, and requiring those to be followed.
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