Flat Chat Strata Forum Common Property Current Page

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  • #70758
    Ziggy
    Flatchatter

      For some time now, a new lot owner has ignored every single request from the Strata Committee for appropriate documentation and information for the change of use to their lot. They have renovated the lot disregarding nearly every common property bylaw we have in place. They have cut down shrubs; rewired common property air conditioning; changed walls; changed lighting; put in new plumbing, which caused flooding; put in new flooring; parked their tradies cars illegally; moved in machinery that has levels above what the SC think are reasonable; and worked out of hours. And perhaps, broken open a security lock.

      Has there ever been a case where an Owners Corporation can force this type of owner to sell their property? Or, at least to re-instate/remove everything they have done?

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    • #70772
      Jimmy-T
      Keymaster

        Has there ever been a case where an Owners Corporation can force this type of owner to sell their property? Or, at least to re-instate/remove everything they have done?

        I have never heard of the former and I doubt if it has ever happened – the right to property ownership is pretty much sacrosanct – but you can get to the same point by religiously enforcing all the by-law breaches that have led to this point, including seeking NCAT orders, until the miscreant wants to move of their own volition.

        As for the second part – which is related to the first – the OC has the absolute right to seek orders at NCAT to protect and restore common property and that’s exactly the kind of totally reasonable action that might drive the recalcitrant out of your building (and make sure that whomever they sell to knows the issues have to be fixed).

        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.
        #70830
        melmike
        Flatchatter

          My nephew has apparently been causing much distress to his neighbours with loud music, pot and cigarette smoking etc. He lives in an apartment his mother bequeathed to him. There have been so so many complaints. His (estranged) sister is a property manager and coincidentally manages a few places in his building. She has assured strata that he will be moving out (seems he wants a bigger place) but no one knows when. Meanwhile, all they can do is complain and strata sends notices to him. Must be awful for them.

          #70834
          Jimmy-T
          Keymaster

            Meanwhile, all they can do is complain and strata sends notices to him.

            No, they can pusue Notices to Comply through NCAT, seeking penalties and Tribunal orders.  Following that, they can even take him to court for failure to obey Tribunal notices. Sending “warnings” and leaving it at that is a waste of time.

            If there’s a problem, send a Notice To Comply on the official form.  If the brat ignores it, they should apply to NCAT for the imposition of fines (you don’t need to go through the Fair Trading mediation process) then escalate it until the departure process is accelerated.

            This has the double effect of dealing with the immediate problem and letting other residents know that by-law breaches will not be tolerated. Let me stress this one more time: unofficial written warnings are a waste of time.  Notices to Comply are both a warning and the absolutely essential  first step to having the problem fixed.

            They are not a fine because OCs can’t impose fines or penalties, so those reluctant to take action can calm themselves.

            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.
            #70846
            The Hood
            Flatchatter

              We has a case out here where an owner was not allowed to return to their lot for a period of 2 years by a Court.
              He lived in the National Park for a while before selling, moving to the back of nowhere, and suicided.
              But that was a PVO case and a court order likely to have been overturned had the defendant appealed.
              Ziggy; there is a saying in strata and that is “you get what you deserve”.
              This has happened because the OC has allowed it to unfold and happen hence the saying.
              It represents poor management.
              It is common to a lot of SPs. The OC send warning letters, they grumble, they do everything but pursue the resolution mechanisms in the Act and when it all gets out of hand then they consider the resolution options.

              Your OC needs to stop being soft and get after this reprobate.
              Who is running the place and why have they let it get to this?
              You might need to address your management structure because it has failed.

              #70930
              Ziggy
              Flatchatter
              Chat-starter

                Issuing a Notice to Comply twice to our bylaw breaker has resulted in nothing happening. The owner has refused to comply.

                It says on the NTC form/NSW government website that the next action is to go to Fair Trading. But Jimmy, you’re saying we can go straight to NCAT. And this is for only one of the many bylaw breaches.

                #70941
                Jimmy-T
                Keymaster

                  It says on the NTC form/NSW government website that the next action is to go to Fair Trading.

                  No, on the official (and only legal) form it says you take it to NCAT.

                  IMPORTANT INFORMATION ABOUT THIS NOTICE
                  3. For a Penalty: an application to the NSW Civil and Administrative Tribunal must be made within 12 months of the Notice being served (given).

                  Now check out Page 11 (section 147) of this NCAT document.  Unlike most of the other orders, seeking a penalty for a by-law breach does not require evidence of mediation.

                  And in fact, the Fair Trading website offers you the choice of seeking mediation or taking a by-law breach directly to NCAT.

                  This is what it says:

                  If an owner or resident continues to breach a by-law after the notice to comply is given, the owners corporation can:

                    • ask for an order from the Tribunal telling the person to pay a penalty.
                    • apply for mediation with the resident who is breaching the by-law. If that does not resolve the issue, the owners corporation can then apply to the Tribunal for a compliance order.

                  Obviously in your situation you would go directly to NCAT, making sure you had a copy of the official minutes of the strata committee meeting at which it was decided to issue an NTC.

                  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.
                  #70947
                  Ziggy
                  Flatchatter
                  Chat-starter

                    Thanks Jimmy for such a precise response. Very informative.

                    Now, what I didn’t know was that the Strata Committee had to have a meeting to decide on  issuing a NTC. I thought that the SC (secretary) could ask the Strata Manager to issue one, which is what we did.

                    #70949
                    Jimmy-T
                    Keymaster

                      If you look at the detail of the law, it says that either the committee can instigate a request for penalties, provided that decision is taken by majority vote at a properly constitute committee meeting, or the strata manager can do so provided they think a bylaw has been breached.

                      It may be that your strata manager wanted you to pass a motion at a committee meeting before they were prepared to act on the complaint, having not witness the breaches themselves (although that might be considered nit-picking).

                      Have a look at this information from Kerin Benson lawyers, which lays out the detail of how to issue a Notice To Comply.

                      And have a look at this information from our sponsors Bannerman Lawyers which explains the timeline for the two options – going directly to NCAT or attempting mediation.

                       

                      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.
                      #71157
                      Ziggy
                      Flatchatter
                      Chat-starter

                        Just an update. The Strata Committee is holding a properly constituted meeting this week re the issuing of NTCs AND they have also got Bannermans, the lawyers, involved.

                        Next stop NCAT, I presume. Who on earth would live in Strata Land! Only those who love being kept awake at night!

                        #71160
                        Jimmy-T
                        Keymaster

                          The Strata Committee is holding a properly constituted meeting this week re the issuing of NTCs AND they have also got Bannermans, the lawyers, involved.

                          Another example of why it is important to be firm and resolute from the first signs of trouble.  An advisory note or phone call after the first breach is fine. After that, go in hard and save yourself weeks and months of grief faffing around with warnings.  A Notice to Comply IS a warning, with a potential $1100 sting in its tail.

                          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.
                          #71459
                          Ziggy
                          Flatchatter
                          Chat-starter

                            Despite legal letters and threats of Notices to Comply, the miscreant Bylaw breaker continues unabated ignoring all warnings. And now, the Secretary of the Strata Committee, who has worked hundreds of hours on this matter, has had enough and threatens to resign from the SC.

                            The committee has contributed little to solving the matter and doesn’t want to pay lawyers to go to NCAT. So who can take the owner responsible to NCAT? And do they need lawyers involved?

                            #71466
                            Jimmy-T
                            Keymaster

                              Any owner in the building can pursue complaints about by-law breaches (through the mediation and tribunal system).

                              NCAT was supposedly set up to be lawyer-free so the default is “no lawyers” although that is changing. If the miscreant hires a lawyer to defend their case, then your strata committee can do the same and claim costs on the basis that the defendant had a hopeless case (if indeed, the breaches are clear and obvious).

                              Just follow procedure. It’s all written down in the various websites.  As a wise person once said, anyone who sacrifices what’s right and just in order to save money, deserves neither.

                              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.
                              #71474
                              Just Asking
                              Flatchatter

                                Ziggy,

                                If your secretary has worked hundreds of hours on this, it would be a terrible shame for all that work to go to waste. You have given warnings, why not now issue the Notices to Comply? It seems you will not get the miscreant’s attention until this step is taken, and it may yield the desired results.

                                If the miscreant continues in defiance, then hopefully all the groundwork done by your secretary will provide context and evidence for orders at NCAT.

                                #71480
                                Jimmy-T
                                Keymaster

                                  “Despite legal letters and threats of Notices to Comply …”

                                  And there’s your problem – a threat of a warning (which is what an NTC is) is just whistling in the wind.

                                   

                                  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.
                                  #71482
                                  Ziggy
                                  Flatchatter
                                  Chat-starter

                                    BTW Jimmy, when you say “Any owner in the building can pursue complaints about by-law breaches (through the mediation and tribunal system)” does that mean they have to go to Fair Trading first. I thought you could go directly to NCAT if NTCs have been issued.

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