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Recently, my wife’s unit while tenanted, had a inspection by a company doing Child Window Safety checks for Strata, and her unit was deemed to have failed the inspection (first since installation). 28 Units in block, 6 reported failed, & 3 units with no access provided.
Inquiries revealed the OC installed all locks in 2015. The tenant was not advised prior that they expected to have the lock key produced at the time of inspection. The tenants partner had the window key with his key ring and was not home at the inspection time.
Written advice was that as the key was not present at the time of inspection, the inspection failed, and under a special by-law passed in 2018 that the Lot owner must bear all related cost for all the locks (3) being replaced, and the cost will be added to the Lot owners account.
We checked the locks with the tenants key and found no issue, spoke to a Ctee member & S/Mgr who both referred to the by-law, confirming it was now the lot owners responsibility and expense to change ALL the locks.
An option given was the lot owner can provides Strata with a “certificate of inspection” (at Lot owners expense). The expectation was that the company who did the inspection would be used to change ALL 3 the locks & provide the certificate. If nothing happens Strata will change all the locks and charge the owner.
The by-law preamble indicates they have used s 111 (work by owners of lots affecting common property) as the justification for the by-law’s transfer of costs from the OC to the Lot owner. It cover Window Safety locks and Smoke alarms.
Some of the other special by-laws also look suspect as they similarly transfer costs to the lot owner.
Any view on the reason s111 was introduced and if it is genuine justification to pass OC costs to an owner or is it a likely abuse of its original intent? I think the latter.
s118 in my view puts the responsibility for maintenance with the OC, & the by-law may be in breach of s136(2) and other sections of the Act.
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I have noted two special by-laws registered on a Strata Plans which are clearly invalid.
The second is relates to maintenance of Child safety window devices … which states: “Clarify the provisions on window safety devices in the Management Act to make it clear it is an owners corporation responsibility to ensure that the devices are maintained”As you rightly point out, section 118 clearly states the responsibility for childproof window locks is the OC’s “at its own expense”.
118 Window safety devices—child safety(1) An owners corporation for a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies.
Maximum penalty—5 penalty units.(2) An owners corporation is to carry out work related to its functions under this section at its own expense and may, for the purposes of this section, carry out work on any part of the parcel.
I am doubtful the current Strata Manger and committee will take any action to repeal these by-laws any time soon, and it may require a motion by a lot owner to be put at the next AGM. Does such a motion require a 75% majority for a repeal or just a simple majority.
So be that owner and add an item to the agenda of the next general meeting to repeal the by-laws and explain why. And yes it will require a 75 per cent vote (of those actually voting at the meeting) but if you explain that owners who allow unsound by-laws to remain leave the scheme open to expensive litigation by anyone who refuses to comply, that might focus their thoughts.
The other alternate is lodge a dispute and start mediation / take tribunal action, which is the least desired option.
Or you refuse to pay the fines and let them take you to NCAT where you can get the by-law kicked out. In your situation, I would probably start by asking for mediation at Fair Trading purauant to applying to NCAT unser Section 150, repeal of by-laws. It’s more hassle for you and at least that keeps you on the right side of the issue.
NB: You continued this discussion by opening a second thread. I have merged the two together as that is not permitted on this website. Please choose a lane and stick to it – JT
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.
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