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Topic
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I complained about the activities(noise, parking, bins etc) of a neighbour who happened to be an executive Committee member. The response of the Executive Committee was to condone their friends actions. After contacting the Dept of Fair Trading, we sent another letter 'breach of section 177, to be dealt under section 45 etc…' We also indicated our intention to take them to mediation. The Executive Committee's response was to make US respondents to their mediation attempt.
At mediation we found out our troublesome neighbours had quite a history, and had been the subject of Court Orders before. We also know that the Strata Manager and at least some of the Executive Committee members were aware of this (recent) history. Vilification was evident with many stories spread about me.
The Mediator hinted to some sort of legal action I could take at the time. What would that action have been?
Since then things have scarcely improved. The Laws are generally ignored to the benefit of some, detriment of others, and general apathy of the rest.
I was disappointed to read in SMH that Owners' Corporation are not responsible for the policing of the Laws/Bylaws. I would have thought that a legally binding relationship between each owners and the Owners' Corporation existed. Could someone clarify the legal relationship between owners and the Owners' Corporation? What purpose is served by unexecutable laws?
Any info much appreciated,
-Fauxchou
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Replies
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Choux flat,
In NSW you are lucky enough to actually be able to take your own action through Fair Trading to have the by-laws enforced.
Ultimately you do not want an owners corporation having to enforce all perceived by-law issues all of the time (especially in a large building), otherwise you will be engaging someone on a full time basis to police the building etc… (yes a bit extreme but where do you draw the line).
Owners that have an issue with their noisy, smoking neighbour that is only impacting on them, should get out there and take steps to deal with this, take ownership for the problem affecting you.
Just to back up Mr Strata's remarks, there are several avenues you can take personally (and this is probably what the Fair Trading person was hinting at).
You can go to Fair Trading for a binding and enforceable mediation.
If (when) that fails you can ask the CTTT for an adjudication.
Or, entirely separately, you can go to your District Court to ask for a noise abatement order.
You can even go to the Supreme Court (if you can afford it) if you want damages (the Supreme Court will only hear strata cases before they have gone to the CTTT if damages are claimed, because the CTTT can't award damages or costs).
And you may even have grounds to sue for defamation if the vilification you spoke about can be proved and can be shown to be malicious.
If things don't improve, it may be time to talk to an experienced strata lawyer.
Finally, do everything you can at the next AGM to get this person voted off the EC. It sounds like you won't be the first person to have crossed swords with this obnoxious individual.
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've said this before and I will say it again. Why are people who break/breach strata by-laws allowed to be on the committee? We have had people who have voted themselves onto the EC and then go on to break every by-law and basically do their own thing. But they send out letters to other residents telling them that they must abide by the same by-laws that they themselves regularly break. If you have a notice to comply sent to you, you should not be allowed to be on the EC.
choux flat said:
When buying a unit in a strata, you own a physical asset much of it shared, and you 'bought' a set of rights and restrictions. Can this be seen as a contract of sort? Once an issue is brought to the attention of the Owners Corporation, does it then become their obligation to deal with it?
If only it was as simple as that. When you buy an apartment you do, indeed, undertake a contract to abide by the by-laws. But unlike in other states there is no legal obligation on the NSW Owners Corporations to enforce those by-laws.
Now, that's not to say the OC has no obligations. The Strata Act details the requirement to, for instance, carry building insurance and maintain and repair common property. And there are other external legal obligations such as Occupational Health and Safety regulations.
Some might argue that the OC has a 'duty of care' which effectively works as an obligation to enforce by-laws. But if that can be proved – and I don't know if it ever has been – it would be as a consequence of not taking action, not (as far as I'm aware) to to force them to do something.
As the coming weekend's Flat Chat column will argue, all of this makes by-laws in NSW effectively optional. And that means the grounds on which they are selectively enforced could theoretically be challenged as prejudiced against targetted individuals.
There's an easy fix – make by-law enforcement obligatory, as it is elsewhere. Sadly, the mandarins of Fair Trading aren't even remotely interested in what strata dwellers want or need – that would undermine their frequently promulgated fiction that they are doing a good job.
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.
What a joke. If the OC isn't obligated to enforce by-laws then why have them? Lets let everyone run amok and do their own thing!
Isn't changing common property without permission a by-law? So when I was on the EC and we pursued residents who changed/damaged common property that may have resulted in damage to persons or property I was under no obligation to spend a huge amount of my own time doing so? But the EC would have been liable should said damage occurred and the OC was up for the repair bills from the damage caused because we were not obligated to chase up this breach?
No wonder I can't give up drinking.
When you live a Strata Scheme, you enter into a contract where you agree to abide by the by-laws. On the other side, and to protect you, there is also an expectation that those by-laws will be enforced.
Rather than an individual taking a vigilante stance, it’s better to get the EC/OC to be active in the administration of by-laws, so a bit of lateral thinking is required to push them into action
Queensland has a nice set of explicit steps laid out in their Act where it’s possible to take an EC/OC to the CTTT for inactivity when they fail to respond to the complainant/applicant within a set period.
NSW has the same intent within its Act but it’s obscure. A few facts:
1. The function to enforce a bylaw via section 45 is clearly only available to the EC/OC, so it’s their function; nobody else’s.
2. A person may request the EC/OC exercise a function and the EC/OC has to respond to the applicant within 2 months [s138(2)]. The EC/OC can be taken to the CTTT for failing to respond.
3. And / or the EC/OC can be taken to the CTTT for failing to ‘Exercise a function’ [s138(1)].
But there’s a kicker; Most people will complain to the EC/OC expecting them to take over the policing and enforcement but as an owner/tenant you are equally responsible to police the by-laws. That is, there is no ‘designated person’ within the Act who is responsible to enforce the by-laws. As the complainant, you have to be prepared to collect and document evidence and provide sworn statement to the CTTT. If you are not prepared for this, then your application can be legitimately rejected by the EC/OC due to unsupported claims. Put simply; if you’re not prepared to do the dirty work, you can’t expect others to do it for you but the EC/OC is legally obliged to assist you with the administration.
I’ve not heard of anyone taking this course of action but all the elements seem to be there within the Act to support a frustrated single owner/tenant.
Interesting stuff, Ray. I've just had a look at Section 138 which seems to be about an adjudicator stepping in to make a judgement when an EC has failed to act on a complaint.
Unfortunately, there doesn't seem penalty on the EC for deciding to do nothing about a legitimate claim so it seems like the EC can just wash its hands of any issues, knowing that the CTTT Adjudicator can make rulings for them (although I suppose in extreme cases it could be used as an argument for imposing a statutory manager to run the scheme).
I may be reading it wrongly, but you're not actually taking the EC to the Tribunal for failure to act, but taking the issue to the CTTT because the EC has failed to act.
But you're right about doing your own 'dirty work' – there's a simple rule of thumb: if it's not important enough for you to gather the evidence, why would anyone else give up their free time to help you?
I reckon there should be some way of weeding out people who join executive committees just to protect their own interests and have no desire to help the neighbours they should be looking after.
Maybe section 138 should have a rider that if you vote irresponsibly to do nothing about a legitimate claim you should be banned from being on an EC for a few years.
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.
Hi Jimmy
As I read Section 138(1)(a), it's about the OC failing to do a function, so I think it's separate from the issue of the breach of the by-law. Section 138(1)(a) mentions by-law but (again as I read it) it would be if the by-law conferred a function. For example; a by-law to issue security keys and to collect the deposit and you would be taking the OC to task for not having done that. For by-law cases the order sort from the CTTT would be for the OC to respond to the applicant or for the OC to issue a s45 notice.
For an owner to take another owner to the CTTT for the issue of not obeying a by-law, the owner generally has to apply under section 117 – Owners, occupiers and other persons not to create a nuisance. Note that an individual has no grounds to use s45 in applying to the CTTT again supporting the notion that s45 is an exclusive OC function.
If I were going to the CTTT for the OC failing to do a function [s138(1)], I'd probably include an application for an order against the person breaking the by-law under this section 117. You're not going to be popular with anyone and you may as well 'go for broke'.
For others reading this blog, I would suggest you try this as a proforma letter to the OC;
Pursuant to s138(2) I apply to the Owners Corporation to exercise its function [s45] to enforce the parking/noise/washing/?? by-law. See the attached for supporting evidence which details the dates, times and identifies the responsible person. Should the infringement continue after a section 45 notice has been issued, I am prepared to document further evidence and provide sworn statement to the CTTT at a hearing.
Now if the OC fails to respond, you have solid grounds to go to the CTTT under s138 for the OC failing to respond. But if the OC informs you that, in their opinion there are not sufficient grounds to proceed with a s45 notice then it's a matter of opinion. This would make it (in effect) very similar to the Queensland situation where they can do the same thing (though QLD have a nice explicit piece of instruction for the EC).
In the case of the OC deciding not to proceed with a s45 notice, you could go to the CTTT to argue the OC failed to issue a s45 notice without proper reason but the decision would be based on if the OC were justified in rejecting your application. Mostly I would expect the application to fail under these circumstances for the OC would have demonstrated due process in its administration of its by-laws.
I should put a disclaimer on all this for I have no legal qualifications. I'm just well read in the Act.
The simple issue that you have is determining what is a breach and what isn’t. It’s not always clear cut, eg ‘behaving offensively’ or disturbing the peace.
Take for example a resident in a unit providing piano lessons. Some people could find this annoying but others may find it excellent.. What if one resident finds this a breach of the by-laws, while the EC have an appreciation for classical music?
Why should all owners contribute towards one persons fight with a neighbor that they find to be too noisy?
The process for an individual to take an issue to Fair Trading is the same as an owners corporation taking it to there. Why have a battle with the EC to enforce the by-laws instead of getting on and having your issue addressed? Seems a bit futile to encourage this approach
Mr Strata said:
Why should all owners contribute towards one persons fight with a neighbor that they find to be too noisy?
The process for an individual to take an issue to Fair Trading is the same as an owners corporation taking it to there. Why have a battle with the EC to enforce the by-laws instead of getting on and having your issue addressed? Seems a bit futile to encourage this approachOK, there are some issues that are truly between neighbours – like the piano playing example – but others where the EC needs to take a stand to show what kind of community they are in.
Is a noisy, aggressive and anti-social neighbour who only disturbs one resident a case for letting that person handle it on their own? And rogue parking – if only one resident is affected, do the others just turn their backs and say 'not my problem'.
And what if that person is unable to understand the processes or is too scared to do anything about their problem?
The process is not “exactly the same”, Mr Strata, and well you know it. An EC has the benefit of experience, professional advice and collective decision making. Most significantly, their handling of a case gives a sense that the community supports the owner who is suffering.
Conversely, an owner acting alone can too easily be dismissed as just another strata whinger who should be living in a house and the CTTT adjudicators can't help asking themselves why the EC isn't going in to bat for them.
And that's the root of this problem. The strata industry is focused on getting as many people into as small a space as possible and to hell with the consequences. Unless we start thinking about community responsibilities rather than personal “rights” all we're doing is building the slums of the future.
Community standards are not established by rules but by what the community does when those rules are breached. If you tell residents they are on their own, don't expect them to care too much about the buildings they live in and the people they live with.
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.
A practical example for Mr Strata;
A number of years ago a friend of mine (a member of the EC) complained to the other EC members about a neighbour making too much noise. The other EC members 'ran for cover' and gave no support. My friend, with my help, took the noisy neighbour to the CTTT. During the course of that action my friend had to move out of her home because the noise and intimidation was unbearable.
Eventually the CTTT did issue us an order restricting the neighbour against making noise. However he continued without abatement but my friend had moved out and none of the remaining residents or EC members would publicly speak out. It would have been a relatively simple matter to apply to the CTTT for a breach of a tribunal order, but none had the courage.
At an AGM, one of the EC members, himself frustrated and intimidated, said to my friend “I wished we had supported you”. Eventually the noisy neighbour moved out.
I was inexperienced at the time and what I am saying is that if I were to ever be put into that situation again, I'd put the EC on notice that they are accountable and they cannot hide from, or hide, issues. At the very least the EC has to formally meet and (like a jury) pass judgement. And they have to document their decision for all owners to see (via the minutes). The process laid out for the EC, via the Act, provides checks and balances for the complainant and the respondent but the community has to participate.
It helps me to think of different levels of governance from the International laws, Federal laws, State laws, Local Council laws and Strata by-laws. And then to ask, who is responsible and at what levels? The State (CTTT) has no responsibility with respect to creating and/or policing by-laws.
In a pedantic legal sense each set of by-laws is unique to each individual Strata Scheme. The Scheme is the authority that created the laws [s41(2)] and the Scheme is the authority responsible to police and impose its own laws on owners/tenants [s45]. The CTTT is used by the Scheme to impose a fine only after the EC has exhausted the limit of its power [s203]. The Scheme has to function correctly for the by-law system to work.
If the scheme is remiss in exercising its function then an individual can use the CTTT to encourage his/her strata community to get back on track [s138].
So I agree with Jimmy, it's about getting the community to work together and sometimes it requires the pain of taking the OC to the CTTT to achieve the longer term good.
To sum up by using a simple analogy; it's like Mum & Dad setting good and reasonable house rules but not enforcing them. And then Mum & Dad looking to the State to fix the resultant dysfunctional family.
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