Should ‘strata’ be the police?

It’s interesting that you should mention this as there is a creeping trend in some strata schemes to NOT do anything about disputes, characterise them as personal and leave it to the combatants to sort it out.

In fact, in my own building, complaints by several residents about one owner have resulted in an edict from our chairman that these are  personal issues between residents and nothing to do with the EC or owners corp.

I am guessing that this may be part of a “user pays” policy intended to keep levies down, as any involvement of our strata manager quite reasonably comes at a price.

As a result, I contacted a very senior person in Fair Trading and this is what they said:

The by-laws are binding on all owners/occupiers and the responsibility of the owners corp to oversee and enforce via Notice to Comply/Penalties or mediation/NCAT. 

So they are an EC and/or general meeting issue. The EC may decide that certain behaviour does not constitute a breach, but they cant say they are not responsible for administering by-laws.

I’d suggest an owner write to the secretary requesting a motion be put to EC meeting (or general meeting) to pursue a by-law breach (including notice to comply/penalty and mediation/NCAT – this is to give them full authority to pursue whatever action may be required if the person in breach does not respond). 

Alternatively, an owner affected by the breach, or any other owner or tenant really, can apply for mediation themselves against the person in breach – to mediate, then seek orders if necessary.

 So, following the above advice, put a motion to the next EC meeting and if they don’t do anything (or refuse to do anything) you can pursue them through a Section 138 where an NCAT adjudicator can order the EC to take action.

Why would you do this rather than just take action yourself? To make it clear to your EC that their “do nothing” policy is a false economy.  They can either accept their responsibilities or double their costs by being taken to the Tribunal and then having to take action anyway.

By the way, anyone who gets on to an EC with the intention of by-passing their responsibilities, just to save money, should be run out of town on a rail at the first opportunity.

Costa has described breaches of statute law as well as his scheme’s by-laws.  Unfortunately, as he acknowledges, his scheme does not have the evidence to achieve conviction(s) of the presumed offender in court. 

Someone might have to be on the right spot at the right time to catch the offender in the act.  I haven’t done sums on the cost of CCTV and its associated supporting systems, but a scheme of 38 units might find it cost-effective (depending on layout and the number of cameras needed).

It may not be an explicitly stated role of the Owners Corporation or its Executive Committee to resolve inter-personal disputes, and there are no by-laws against being ‘difficult’ — in isolation — but there are rules against interfering with the ‘quiet enjoyment’ of other residents, and complaints and Notices to Comply could be carefully framed to capture this.

My submission to the review of the NSW Strata Act a few years ago (remember that, and the hope that it put into so many of our hearts?) included

“Something that cannot be legislated in detail, but would be desirable in some sort of preamble to the Act, is an expectation that occupants observe not just the letter of their Scheme’s By-laws, but also the spirit of those that are (or should be) intended to facilitate living at close quarters and sharing facilities.”

Can we live in hope that this could still come about, with a future Minister given strata affairs as a core responsibility and an opportunity to make a mark for future advancement?