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  • #8799
    Fiveaces
    Flatchatter

      Hi everyone,

       

      Is the following by-law as uncommon as it sounds?

       

      We’ve been advised of a by-law regarding a property we’re looking at purchasing that has been described as unusual and uncommon. It has been adopted in the past few months and seems to me about shifting maintenance responsibility of items to individual lot owners in an attempt to reduce a $200K deficit in the strata’s administrative fund.

       

      In short it is:

      • Drafted from LPI memorandum regarding maintenance responsbilities for schemes.
      • Intent being any fixture or fitting contains within the lot or any appliance that only services one lot is the maintenance responsibility of the lot owner.
      • Any item specified that is afforded cover for damage due to an insurable event by the OC insurance policy shall still be protected by that insurance.
      • The OC shall retain responsibility for structural elements, integrity and general safety. Waterproofing shall also remain OC responsibility except where a lot owner has undertaken a renovation.
      • The OC deems it innapropriate to repair, maintain, replace or renew any of the following.

        • All decorative finishes within a lot (cornices, floor tiles, wall tiles etc)
        • Bathroom and laundry fixtures (taps, internal pipe work etc)
        • Kitchen fixtures and fittings (taps, internal pipe work, exhaust fans and external ventilation points etc)
        • Floor coverings (carpet etc)
        • Balcony (all tiles etc)
        • Electrical fitings (electrical sockets etc)
        • Doors (any locking device etc)

      Internal pipe work is defined as any pipe work that only services one lot, whether located on a common property or internal wall.

      A lot of this we’re not concerned about, if we broke a tile we would expect to have to repair it. Our concern would be however that if a pipe leaks and is in an external wall but servicing only our lot, we would now be responsible for chipping the wall to get access for repair.

       

      Is this correct and is it unusual?

       

      Thanks,

      Mark

       

    Viewing 9 replies - 1 through 9 (of 9 total)
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    • #18488
      Jimmy-T
      Keymaster

        It’s not unusual for Owners Corps to adopt this Memorandum as a by-law (because it doesn’t have any legal effect until they do).  But it is a flawed piece of work and the grey areas between common an private property are where the cracks really show.

        In your case, I would say that where a pipe has entered your property is when it might become your responsibility and if it’s in common property, like an external wall or in the ceiling, it hasn’t entered your property.

        Elsewhere today we’ve had one of our StrataGurus Whale explain why a by-law telling everyone they have to look after their own windows isn’t legal because it attempts to over-rule strata law. 

        H quotes the Act saying this:

        Sect 62 (3) of the NSW Strata Schemes Management Act (SCMA) only permits an O/C to make that decision where it “will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.”

        I would argue that relinquishing control of water pipes in common property might compromise the safety of common property – if there was a leak and you chose not to attend to it – and therefor that clause might render the by-law defunct.

        The “who owns what” Memorandum is a helpful guide but when Owners Corps use it to shed all their responsibilities, it becomes a dangerous document.  I reckon you could challeng e the by-law now or in the future if a problem ever occurred.  

        Look at it this way, if there is a fault with common property that causes a leak in a pipe, why should it be your responsibility?

        Sounds like what you need is a good hard look at your levies and realistic plan to get back in the black.  Stopping people from making legitimate claims for repairs isn’t going to do the trick.

        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.
        #18489
        kiwipaul
        Flatchatter

          Must admit I don’t see a problem with the bylaw as it transfers responsibility to the lot owner and gives him permission to make alterations within his lot without the hassle of getting a SR approved for renovating a kitchen, bathroom, etc.

          In the case of a leaking pipe it would be strata insurance that would cover the repair and the bylaw would make no change to that.

          Why should strata be involved when you want to retile your kitchen or bathroom, or lay new floor times (so long as it doesn’t affect other residents).

          This is how the rules apply in QLD (except the utility service has to actually enter the property before it becomes the lot owners responsibility) and I think those in NSW are far too restrictive on what a lot owner can do.

           

          #18494
          Whale
          Flatchatter

            KiwiPaul – Slightly off the original topic, and apart from the fact that a leaking pipe (as opposed to a burst one) is not claimable on building insurance, are you saying that in Queensland an owner could undertake renovations of the types you mentioned to common areas within their Lot without first seeking and obtaining the consent of the Owners Corporation (O/C)?

             

            #18497
            kiwipaul
            Flatchatter

              @Whale said:
              are you saying that in Queensland an owner could undertake renovations of the types you mentioned to common areas within their Lot without first seeking and obtaining the consent of the Owners Corporation (O/C)?

               

              Yes I am. It’s called building Format

              In QLD the boundary of the lot is the mid point of the common wall, so ripping out a fitted kitchen, bathroom is allowed without Body Corporate (Strata) approval. So attaching shelves, hammering in nails is all legal so long as it doesn’t go beyond the mid point of the common wall.

              Removing an internal load bearing wall would be a different matter, but general refurbishment is allowed.

              We even have Strata that is effectively a freehold property within the strata complex and the owner is responsible for ALL maintenance (only possible with townhouses and villas) of the property it’s called Standard Format.

               

              See here

               

              https://www.justice.qld.gov.au/justice-services/body-corporate-and-community-management/maintenance-of-common-property-and-lots

              #18501
              Jimmy-T
              Keymaster

                I pity the poor neighbours who have to put up with all this work when there are no restrictions over working hours, noise , mess etc. Fotr instance, in our block permission to do this kind of work comes with controlled times for things like hammer drilling, so that it can all be dealt with in one or two spells, not be a constant that goes on intermiitently for weeks.

                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.
                #18503
                Kangaroo
                Flatchatter

                  Oh Whale,

                  All “leaking” pipes are “burst” pipes when the attending plumber is the only one who has to decide whether to charge the insurer an inflated price or charge the OC an uninflated price.

                  #18505
                  Whale
                  Flatchatter

                    KiwiPaul – I read some of that last night and must say that it’s interesting (if not voluminous).

                    In addition to the issues that Jimmy raised I can’t help but wonder about the numbers of disputes about maintenance responsibilities that arise from so much use of phrases like “….is usually responsible for” and “with the exception of some elements” (undefined), and from the fact that the various diagrams to depict the boundaries of lots and common property are each in plan view, with none showing elevation.

                    Wouldn’t it be great if the various States and Territories, and particularly those with common boundaries, could collaborate on strata legislation rather than just make variations to whoever’s came first, without necessarily making improvements or developing something on the basis of others’ operational experiences.

                    Kangaroo – yes you’re correct, and that’s one of the reasons for premium increases, and for insurers only covering the costs of locating the source of reported burst pipe problems, and for no longer covering leaks from shower cubicles – because those too were mostly reported as burst pipes.

                    Our insurers only accept claims that are endorsed by the Chairman or me; another benefit of self-management as most Strata Managers don’t have the time to personally check on-site or with the plumber who may have been called by the lot owner, their managing agent, or their tenant.

                    #18507
                    kiwipaul
                    Flatchatter

                      @JimmyT said:
                      I pity the poor neighbours who have to put up with all this work when there are no restrictions over working hours, noise , mess etc. Fotr instance, in our block permission to do this kind of work comes with controlled times for things like hammer drilling, so that it can all be dealt with in one or two spells, not be a constant that goes on intermiitently for weeks.

                      The default QLD bylaws like those in NSW don’t allow residents to cause a noise nuisance or make a mess on the common property (or even lot property if it’s visible from the common property). Also how often do residents refurbish kitchens or bathrooms (not exactly an annual process).

                      Also our owners don’t have to register a bylaw every time they make changes as the onus falls on the owner to prove that the Strata accepted responsibility (simple motion passed by OC or EC would be sufficient (but EC or OC would have to be pretty thick to vote to accept this)) for any alteration done but most owners don’t even try to get the strata to accept this responsibility for something that benefits only 1 owner.

                      #18508
                      Jimmy-T
                      Keymaster

                        @kiwipaul said:
                        The default QLD bylaws like those in NSW don’t allow residents to cause a noise nuisance or make a mess on the common property (or even lot property if it’s visible from the common property). Also how often do residents refurbish kitchens or bathrooms (not exactly an annual process).

                        A couple of points – we have those default noise and mess by-laws but they don’t prevent cowboys who don’t bother to read by-laws suddenly launching renovations or, worst of all, deciding to renovate themselves on evenings and at weekends.

                        Approval of a renovation schedule doesn’t require a by-law unless changes are being made to common property, in which case it does.  My building has a catch-all by-law that says any changes made to common property (after the by-law was registered) become the ongoing responsibility of the owner of that lot.

                        The issue then becomes one of when were the renovations done and who did them.  That’s why all renovations have to be approved with a schedule of works ticked off by our EC and building manager.  If anyone decides to go “cowboy” on us, they suddenly find access to the lifts, garage and potentially even power to their unit is severely restricted (admittedly we are a large building of more than 130 units, with a building manager and electronic access to lifts and the garage).

                        How often do people renovate?  Aproximately every seven years and in a building of our size which 12 years old, that means roughly one every couple of months or so.  That’s why you want to be able to allow people to renovate but still control the noise and mess as much as you can

                        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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