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20/10/2012 at 8:52 am #8499
Hi,
Just wondering if I need to seek permission from the owners corporation to remove paint from the concrete ceiling in our apartment? I would like to return the ceiling to its raw state.
There is nothing that states the ceiling needs to be painted, in fact the developer was meant to leave it unpainted for us (as per a condition in the contract) – but the morons went ahead and painted it anyway!
The builders are refusing to remove the paint prior to settlement (even though they are legally obliged to) and have offered a $5000 ‘contribution’ (it will cost more than this) towards us removing the paint after settlement.
Here is the rub however, they have told us that in order to do it after settlement we would need to seek permission from the owners corporation.
Now I don’t know how many apartments the developer owns, but i know there are a handful that haven’t been sold – and there are a bunch being leased through the one agent (so not sure if this is stock the developer has held on to).
Anyway, we feel it is unlikely that we will get permission from the owners corporation.
Can anyone offer some advice?
Thanks
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20/10/2012 at 3:33 pm #16930
Interior paint is generally the owner’s property. It’s generally a decoration and you are free to interiorly decorate. I don’t know why OC permission would be needed if it’s just interior paint. Unless there was some structual reason why the ceiling had to be painted, I can’t see how the OC could refuse permission anyhow.
20/10/2012 at 3:44 pm #16931It is unlikely that the paint forms part of the common property, otherwise the OC would be up for repainting everyone’s apartments any time it was needed.
Provided there is no such weird by-law, I would go ahead and remove the paint, because you don’t need permission.
Those builders sound like idiots, I wouldn’t bother discussing it with them – what you do after settlement is your business.21/10/2012 at 3:23 pm #16935Thanks for the responses.
I have just checked our by-laws and I am assuming this is the one that applies:
Alteration or work to Lots
7.1 The consent of the Owner’s Corporation and the Building management Committee must be obtained if an Owner or Occupier wishes to:
a) make alterations to, additions to, remove, repair or replace:
i. any part of the Common Property near or within their Lot (such as Common Property walls, Common Property windows and doors, Common Property floor and ceilings)
ii. the structure of their Lot
iii. the internal walls inside their Lot (such as dividing walls even though they may not be Common Property).
iv. The balcony attached to their Lot (such as enclosing it or erecting some permanent structure on it (this does not include plants or furniture)),
v. Any part of the Heritage items (even if the Heritage item may not be Common Property)
Now the ceiling is part of the original 1920’s warehouse – so I suppose they could say that point v. applies, and that it is a heritage item. But if that is the case, they probably shouldn’t have painted it themselves and left it in its original, raw unpainted state – as we requested!
So, if by alterations they also mean painting, then I guess point iii. means we can’t paint the internal walls without permission either?
Is this a standard by-law?
Thanks
21/10/2012 at 3:51 pm #16936It’s a fairly standard by-law but you are interpreting it wrongly. The ceiling and walls may be common property but the paint isn’t, Un-paint your ceiling, then send the builder a bill which you should pursue through a district court and not through the CTTT.
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.
21/10/2012 at 5:49 pm #16938I’m with Jimmy, but would go one step further!
When I first read the initial post I wondered why deliria would want to possibly compromise his/her legal position, let the developer off the hook, and possibly breach the Plan’s by-laws?
The builder has admitted liability by offering a “contribution” and the developer is in breach of contract, so I’d forget about removing the paint myself and instead move to legally enforce my contract with the developer.
I know that may mean delaying settlement, but a “step in time” saves many later on, including with building warranty in this case.
21/10/2012 at 6:54 pm #16939Thanks Whale & Jimmy – we really don’t want to settle & have been pursuing this through solicitors for weeks now. The builder won’t budge the latest letter stating that their structural engineers have said
“there is no feasible method of removing thepaint without risking damage or potential damage to the existing concrete structure.”
We have found two methods that will remove the paint without damage. One being a paint stripper. They will not accept this, even though they have previously used paint stripper themselves, which did remove the paint, but they found scraping it off too labour intensive – so they stopped.
We would just refuse to settle and that is our preferred option – however, notice has been given on our rental and we have to be out soon. holidays have been booked (that can’t be changed this late), in order to be home for furniture delivery, installing blinds etc, etc.
It has already cost us a fair amount in solictors fees, and we are now having to waste holidays sitting around doing nothing.
We could find another rental, but once we sign the lease we will be committed for 6 or 12 months & we won’t break the lease & pay the penalty.
Our solicitors cannot believe how aggressive & stubborn the vendors are being especially as they really haven’t got a leg to stand on.
I agree with Whale, if we do it ourselves I don’t trust that they wouldn’t try to blame a genuine building defect on work they claim we did on the ceiling.
Really at a loss right now.
22/10/2012 at 11:02 am #16943What a mess….I really feel for you and the position you’re in, and through no fault of your own.
As much as I hate to say so, I’d be inclined to instruct the Solicitor to prepare for Court and to inform the Developer / Builder of that decision, and of the fact that your going to add the costs of alternate accommodation (a serviced apartment?), storage costs, and anything else of relevance that you can think of to the amount of your Claim.
Hopefully the other Parties will come to their senses once they know that the proverbial wheel is turning faster, but in the event that they don’t, you should rely on your Solicitor’s advice that they “haven’t got a leg to stand on”.
Have you considered obtaining an expert opinion on the best method to remove the paint and an estimate to do the work professionally (not that you’ll be doing the latter), just in case the builder continues to claim that it can’t be done; actually I think it’s just too costly for them to do in the way that they’d prefer. Perhaps have a look at the advertisers on this Forum’s Home Page.
22/10/2012 at 11:58 am #16946Hi Whale,
Would love to pursue all this through the courts, but our solicitor can’t guarantee we would be awarded costs (most likely we would, but no guarantee) – so it is something we need to think about. As we would love to recoup legal costs, moving costs, storage etc.
We have asked our solicitor if we can just refuse to settle and are awaiting their response.
If they say we can, we will just find another rental & wait it out. The vendor will be made aware that if they don’t sort it out before we recommit to another lease, then they could likely be waiting up to 12 months for settlement, as we will not break our lease and cop a penalty.
They will not let anyone in to quote on the job, but based on the information I have given to a Dry Ice Blasting company, they think it will cost somewhere between $4000 & $5000 to do (would be cheaper if the builder hired the equipment and did it themselves). They also don’t think it would take more than 2 days to complete.
The builder has offered us $5000 to do it ourselves, so why not just pay someone else to do it for them now and save all the hassle – we just don’t get it.
We think it boils down to spite, pure and simple.
They have viewed us as being problematic from the start – because we requested they do less work by leaving the ceiling untouched and by also asking if we could provide our own tiles for the bathroom feature wall & kitchen splashback – at our cost.
22/10/2012 at 1:59 pm #16949I’d be inclined to lodge the necessary paperwork including a copy of the Statement of Claim to the Courts and see if that gets a reaction from the Developer/Builder. If you get a favourable reaction, then you can settle the matter outside of the Court System can’t you?
I’ll go quiet for now and give some others an opportunity to comment.
22/10/2012 at 2:06 pm #16950So we can’t lodge an Urgent Hearing order with the CTTT?
Our solicitor has suggested we could settle & reserve our rights and then pursue them through the CTTT – is this not correct?
22/10/2012 at 4:26 pm #16951People have trouble getting urgent decisions from the CTTT when their ceilings are caving in – some mis-applied paint isn’t going to cut it with those guys.
I reckon your solicitor is right. Reserve your rights, settle (and take the developers’ money if it’s still on offer), fix the ceiling and move in.
If you are hung up on the principle of this – who’s right and who’s wrong and who should be doing what – I’d wager this ceiling business will be just the start of a short and unhappy journey in strata.
I hate to be blunt but what do you really want – the ceiling unpainted or to win the fight?
Frankly, I would rather get professionals in to do the job rather than the bozos who screwed up in the first place.
Extensive before and after photography will counter any claims that you have damaged common property.
Taking this to the CTTT is about as reliable as taking the money that was offered and putting it on red or black at the casino – except in the CTTT you don’t get a pay-out. The CTTT will not award damages – they will only instruct the losing party to remedy the fault. The average time to run a case – if the other party appeals – which they will – is about three months.
Pragamatism trumps principle in strata, every time, and I speak as someone who has learned the hard way.Take your lawyer’s advice – that’s what you pay them for – and certainly DON’T count on the CTTT to come to your rescue.I’m not even sure if I would take this to the CTTT’s strata adjudicators after you have fixed the ceiling. It sounds like a breach of contract to me and I’d be asking if it wouldn’t be better to run the case in the small claims court.
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.
22/10/2012 at 5:35 pm #16953You are quite wrong Jimmy if you think this is just about winning the fight. We were more than prepared to take the money they offered (well we would have asked for more as the quote we were given was only a ball park figure), however, the vendors added the stipulation that we needed to seek owners corporation permission – and they have a large vote. So we know if we did that we wouldn’t get permission. They dry ice blasting machine uses compressed air and is incredibly noisy – there is no chance that we can sneak it in without anyone knowing. Yes we can take before and after photos, that still might not stop them claiming we voided some building warranty or were the cause of some defect that shows up a few years down the track? The last thing we want is to have to fight them again in a few years. So we would be more than happy to take the money and do it ousrselves, but they won’t give us written permission prior to settlement that will allow us to do that.
23/10/2012 at 9:02 am #16959If you aren’t prepared to take your lawyer’s advice – and that’s your prerogative – then I would walk way from this. In fact, I would have been long gone by now. Being badly treated by the developer/builder before you even settle is a very good indication of how they will treat you after they’ve got your money.
I recently had the chance to get in early in a prestige new development but the contract was huge – enough to fill a massive ring binder. My lawyers asked for an extra week to read it (three rather than two) before we signed but the developer refused. We pulled the plug. It wasn’t the only reason but we got the sense that this could be a problem development if it wasn’t handled right and the contract issue was a bad sign.
I know you feel wronged here and you are entitled to what was agreed in the contract but getting what you want can take a lot of time, money and emotional energy, now and in the future. These builders haven’t behaved well and there’s unlikely to be a massive change in their attitude once you have settled.
The very idea that they might play games on the defects after you have moved in should be enough to get you backing out of this as quickly as you can.
One more thing about the CTTT; as you aren’t yet an owner you have no ‘standing’ so that isn’t an avenue open to you.
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.
23/10/2012 at 9:28 am #16960Unfortunately we are not in a position to now walk away.
We sold our home of 11 years to purchase this apartment & have been renting for the last 12 months awaiting completion.
We did not have to pay stamp duty when we purchased last year – we will now.
A comparable apartment will now cost us considerably more – believe me, we have tried to find one. We would have loved to have found somewhere else.
We have bought tiles for this apartment (that have been laid), we have bought furniture for this apartment that is awaiting delivery. Walking away is not so simple now.
Of course we now understand that we have purchased in a development where we will continue to have problems with the builder/developer and that saddens us no end.
This exercise has shown us that even if you do your research & you think you have found a somewhat reputable builder & developer – chances are you have not. I do not believe that any exist.
As for listening to our solicitor we have been, but everything the vendor has offered so far is conditional – we have been more than reasonable in trying to find a solution.
Your suggestion that we just do it ourselves (as we don’t need to seek permission to “unpaint” the ceiling), and chase them up for costs is a valid one.
However, as I have explained Dry Ice Blasting is a method that uses compressed air and is very noisy & uses a large piece of machinery – and as the builders are still on site completing Stage 2 of the development, I don’t see how we can do this without drawing their attention. As they have asked we seek permission from the owners corporation (i.e. them) what if they choose to throw the contractors off site?
We have also been advised that it is best to sort the ceiling prior to moving in as we will have to move everything out again should we choose to do it later.
So alas, while some people may be in a position to just throw money away – we are not.
23/10/2012 at 4:22 pm #16967I bought off the plan some years ago. I had stipulated items in the contract that on inspection were wrong. I seem to recall my solicitor telling me that should I go ahead and settle then these problems would be mine and it would be hard to change them as I had accepted the property by settling, or words to that effect.
I also found an error in the contract. Something that was mentioned as an inclusion that wasn’t. I ended up making a deal with the builder – you do this and I won’t enforce that! Was it a fantastic result – no. Was it good enough – yes. I realize you are disappointed that your new apartment is not what you stipulated in your contract, but if you do like it and don’t want to or can’t go elsewhere, then I would take their money, then settle and live with the white ceiling. Not what you wanted I know, but it means some extra money in your pocket, somewhere to move into and a battle you don’t have to fight. There are enough worries with moving into a new home, and Lord knows there are enough stresses with living in strata. So lighten your load if you possibly can.
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