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  • #8250
    ChrisJ
    Flatchatter

      The strata manager of a villa complex has just given approval for a gardener to be employed to maintain the private garden belonging to one villa owner on the basis that it contains a stormwater retention pit which is common property. I have objected because even though the unkept garden is overgrown with weeds it does not interfere with the functioning of the pit. The garden itself is the owner’s responsibility while the OC is responsible for the pit and it is improper for the gardening to become an OC expense. Am I correct?

    Viewing 15 replies - 1 through 15 (of 16 total)
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    • #15863
      arthur
      Flatchatter

        You do not say if the garden is at front or rear of owners villa.I would think that this is not a payment from strata funds if the garden is not on commom property and therefore should be paid by the owner if the garden is at the rear of his villa.However,a garden at the front of the villa is on common property and is a strata charge if approved by the stata committee and all front gardens ed of weeded as a strata cleanup job.

        #15864
        kiwipaul
        Flatchatter

          Chris J said:

          The garden itself is the owner’s responsibility while the OC is responsible for the pit and it is improper for the gardening to become an OC expense. Am I correct?

          Yes you are.

          Strata Manager has no authority to spend OC funds on anything unless it’s been pre approved or a vote has been held to approve it. I would say the vote would have to be unanimous to spend money on anything but common property.

          This is strictly against the law. Think of the Strata Manager as the Strata Administrator which is a better description in 90% of the strata complexes.

          Advise him unless he desists you will expect him personnel to reimburse the OC any gardening charges unless the OC approves with a vote.

          #15869
          Jimmy-T
          Keymaster

            @kiwipaul said::

            Strata Manager has no authority to spend OC funds on anything unless it’s been pre-approved or a vote has been held to approve it. I would say the vote would have to be unanimous to spend money on anything but common property.

            With all due respect, you have no idea what the Strata Manager has been authorised to do.  He may have been given the full authority to act on behalf of the EC or he may have been allowed to spend money up to a certain limit.

            I also don’t know where you get the idea that it has to be a unanimous decision to spend money on anything other than Common Property.  You may be right but I have never heard of this before. I would have thought at most you would need a 75 percent majority of those voting at a general meeting and even then I have a feeling that a simple majority would cover most circumstances. If the Strata Manager is delegated to make decisions on behalf of the EC/Owners Corp, then that would be far from “strictly against the law”.

            I also wonder if the strata manager may have weighed up the cost of getting a gardener in to make sure the pit isn’t compromised against the time, hassle, money and effort involved in forcing an owner to clean up their garden.

            In short, I wouldn’t be jumping to any conclusions without the full knowledge of the circumstances here.

            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.
            #15872
            Jimmy-T
            Keymaster

              @arthur said:
              You do not say if the garden is at front or rear of owners villa.I would think that this is not a payment from strata funds if the garden is not on common property and therefore should be paid by the owner if the garden is at the rear of his villa.

              However,a garden at the front of the villa is on common property and is a strata charge if approved by the strata committee and all front gardens ed of weeded as a strata cleanup job.

              I must be missing something.  Do we know for a fact that gardens at the front are common property while those at the back are part of the lot?  Is this just how it usually is or is it another weird part of strata law that has passed me by (again)?

              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.
              #15875
              Anonymous

                Jimmy is right in his points, as for the location of the gardens dictating common property this is simply incorrect. The Strata Plan is the only way to determine what are the boundaries of the common property, one should not make generic statements as its up to the developer and the land surveyors to what will be the Common Property on drawing up the Strata Plan for lodgment and registration.

                One other issue that needs correction is the authority of the strata Manager to authorize works or spend monies. This is determined by the terms of the management agreement, as Jimmy touched on, it depends on what delegated authority is given to the Strata Manager, in some cases the OC may under the Strata Agreement give full authority and function to run the Strata Scheme to the Strata Manager, in which case the Strata Manager need not seek any approval of the OC in engaging contractors, organizing repairs and paying accounts. Also dysfunctional Owners Corporations may have a CTTT appointed compulsory Strata Manager who also has full authority which may also include authority to raise compulsory Levies to maintain the property or pay accounts such as Insurances electricity etc.

                Chris Mo’ane AIAMA, MASBC-CPC
                GMD Integrated Consultancy Group

                @JimmyT said:

                @arthur said:
                You do not say if the garden is at front or rear of owners villa.I would think that this is not a payment from strata funds if the garden is not on common property and therefore should be paid by the owner if the garden is at the rear of his villa.

                However,a garden at the front of the villa is on common property and is a strata charge if approved by the strata committee and all front gardens ed of weeded as a strata cleanup job.

                I must be missing something.  Do we know for a fact that gardens at the front are common property while those at the back are part of the lot?  Is this just how it usually is or is it another weird part of strata law that has passed me by (again)?

                #15882
                ChrisJ
                Flatchatter
                Chat-starter

                  May I clarify the issue: Provision for the employment of a gardener for common property was approved and quotes were sought. However, one villa owner has asked for the grass/weed cutting in the private garden area to be included. (Incidently, it belongs to another villa, not his own). The garden area is clearly identified on the strata plans as belonging to the villa, as are the garden areas belonging to the other villas. All other villa owners accept the responsibility of maintaining their own garden areas. This particular garden area is located at the front of the property and contains a stormwater retention pit (approx. 400mm square). The strata manager appears unable to differentiate between the common property pit and the private property garden. Incidently, my own garden area also has a retention pit and is also at the front, yet I maintain my garden. Surely it cannot be fair or legal for the maintenance of one garden to become an OC expense simply because the owner neglects it?

                  #15884
                  kiwipaul
                  Flatchatter


                    @JimmyT
                    said:
                     

                    I also don’t know where you get the idea that it has to be a unanimous decision to spend money on anything other than Common Property.

                    This is to prevent corruption. If the committee decided to spend money within it’s limits on maintaining say the private yards of the committee members ONLY anyone who objected to this would have a valid case against the committee for misuse of BC funds.

                    We recently repainted the whole complex and the BC paid for everything even though only half was BC responsibility (half was within private yards and owners responsibility). We held a No dissent vote to enable us to use BC funds for this and if anyone had voted against we wouldn’t have been able to do it. (this was in QLD).

                    I also agree I don’t know the details of the contract with the manager but I’m pretty sure he is not allowed to spend money on anything he likes unless he has a pretty good explanation.

                    Otherwise where do you draw the line a BC manager who owns a property within the complex could spend BC funds decorating the inside of his own property if he was given total discretion on spending BC funds.

                    #15886
                    Jimmy-T
                    Keymaster

                      OK, maybe that’s the by-law in your scheme but it’s far from universal.
                      Also, have alook at Chris Mo’anes response re the strata manager – we can’t tell what delegated power he has or how accountable he is without looking at his contract and examining the minutes of that EC. It differs from place to place and contract to contract.
                      That said,it’s great to have your opinion, KP, and hearing about your specific experience and how your scheme handles issues is exactly what this forum is all about. But we need to be careful not to give the impression that what you believe and what you do are strata law that applies to every scheme in NSW. In this case they simply aren’t.

                      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.
                      #15887
                      kiwipaul
                      Flatchatter


                        @JimmyT
                        said:
                        OK, maybe that’s the by-law in your scheme but it’s far from universal.

                        I don’t believe it is as our bylaws are virtually a straight copy of the standard bylaws from the act. Also the bylaws have to comply with the act and every other piece of legislation in QLD. If the bylaws conflict the bylaws loose.

                        eg if strata bylaws bans ALL dogs even guide dogs it’s unenforceable as it conflicts with acts of parliament.

                        Just because it says something in the bylaw doesn’t mean it’s enforceable as bylaws aren’t checked before being registered.

                        QLD has online 10,000’s ruling from adjudicators that are searchable for precedence which I find VERY useful.

                        I’m no expert but I’m learning all the time and these sort of sites are invaluable.

                        #15888
                        Jimmy-T
                        Keymaster

                          KP, we’ve been talking at cross-purposes. You are in Queensland – I am in NSW … noit just different states, different planets when it comes to strata matters. And I notice you did mention this in your last posting too, so apologies. I’m going to adjust your profile to reflect where you’re from. All we need now is to work out where ChrisJ is..

                          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.
                          #15889
                          ChrisJ
                          Flatchatter
                          Chat-starter

                            I’m in NSW Jimmy, I’m also in a state of confusion. Is it possible then for a body corporate to spend money maintaining a private garden? I assumed all strata levies had to be spent on matters concerning common property only.

                            #15890
                            Jimmy-T
                            Keymaster

                              The Act refers to the Owners Corp spending money on both Common Property and personal property (although I’m not sure what that means, exactly).  Trying to think of a scenario where it would be reasonable for the Owners Corp to spend money on private property, the situation you have described fits the bill.  Say owners were having trouble selling or letting their property and one of the reasons was that one neighbour wasn’t maintaining their garden (or was unable to do so).  Wouldn’t it then be for the greater good to spend the money – everybody benefits, either directly or indirectly, rather than waiting for the process to grind through Fair Trading and the CTTT.

                              It may not be strictly legal (although I’m not convinced it isn’t) but it could be the right thing to do.

                              In any case, the easiest way to resolve this is to find out who made the decision and ask them why they made it.  Keep us posted!

                              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.
                              #15904
                              kiwipaul
                              Flatchatter

                                I was fully aware the OP was in NSW and my opinion is the same. If you look on the CTTT web site you get this

                                 

                                A lot owner effectively owns the airspace (and anything included in the airspace) inside the boundary walls, floor and ceiling of the lot.

                                Lot airspace may include balconies and courtyards. Everything within the airspace must be maintained at the owner’s cost.


                                Generally speaking the bylaws allow the OC to do maintenance of the private areas if the owner fails to maintain the area to an acceptable standard and the owner is then billed for the cost of the maintenance. Allowing owners to ignore their obligations without penalty (or allowing the BC to do it with charge to owner) is a receipe for disaster.

                                My opinion is that if you took this sort of issue to adjudication the adjudicator would rule that the BC manager or OC cannot spend BC money on private areas without a very good reason and at the very least a majority of the owners voting in favor, as to do otherwise would undermine the Strata concept of  having common areas and private areas in one complex.

                                #15905
                                Jimmy-T
                                Keymaster

                                  @kiwipaul said:
                                  I was fully aware the OP was in NSW and my opinion is the same … then this …

                                  the BC manager or OC cannot spend BC money on private areas without a very good reason and at the very least a majority of the owners voting in favor …

                                  And what you said at first was …

                                  I would say the vote would have to be unanimous to spend money on anything but common property. (My emphasis – JT).

                                  What you are saying now is quite different from what you said at first.  But the important thing is that we have established that …

                                  a) Under certain very common circumstances the Strata manager CAN spend money without necessarily running to the EC every time he or she needs to do so …

                                  b) There are circumstances – to which you allude yourself – where it’s permissable (and preferable) for the Owners Corp to pay for the work to be done.

                                  What we haven’t mentioned is that the Owners Corp can and probably should pursue the owner for payment of the work done.

                                  In the case first raised by ChrisJ, another owner requested that the Owners Corp gardener cut the weeds and grass in a neglected garden.

                                  Let’s imagine (for it is dangerous to assume) that this complex has the standard by-law that says the owner is required to maintain their garden and keep it tidy.

                                  Failure to do so would then be a breach of by-laws and that’s where the NSW strata Act kicks in.  This is what it says (Sub-clauses 2 and 5 left out as they aren’t relevant to this discussion):

                                  63   What power does an owners corporation have to carry out work and recover costs?

                                  (1) Application of section
                                  This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.

                                  (3) Work required to be carried out under term or condition of by-law
                                  An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot under a term or condition of a by-law and may recover the cost of carrying out the work from that person or any person who, after the work is carried out, becomes the owner of that lot.

                                  (4) Work that is duty of owner or occupier to carry out
                                  An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.

                                  (6) Recovery of costs as a debt
                                  The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

                                  If that by-law regarding the maintenance of the garden is in place, all ChrisJ really has to do is ask the EC or the strata manager if the owner of the messy garden is being charged for the gardener’s time as is permitted under the law.  And he can even put that up as a motion to the EC or the next AGM.

                                  By the way, I see no obligation on the OC to charge the money if they choose not to; the Act says ‘may’ not ‘must’ when it comes to recovering the cost as a debt.

                                  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.
                                  #15909
                                  kiwipaul
                                  Flatchatter

                                    I basically agree with what you are saying.

                                     

                                    But OP stated that BC manager on his own authority authorized gardener to maintain a private garden with no indication the owner was going to be billed for the service.

                                    If we assume the BC manager has been given full authority to spend as he sees fit (unlikely in this case) it is misuse of BC funds to spend them on maintaining private property as that is not the purpose that they were collected for.

                                    If you accept that BC Manager (or the OC) can spend BC funds to maintain what is effect private property where does it end. He could decide to refurbish one of the units entirely using BC funds (maybe one he owns). If this is the case in NSW the Strata Act is in worse shape than I imagined.

                                    In QLD you cannot use BC funds to maintain anything except Common Property without a No Dissent vote and I naively assumed you had something similar in NSW.

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