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Just in case you are in QLD (the use of the term ‘body corporate’ may hint at SJ1965 being from QLD) …… the intercom may not be the responsibility of the body corporate.
Utility infrastructure is not necessary a “common property” matter for which the Body Corporate is liable. If the infrastructure is on common property, but solely supplies an individual lot – the owner of the lot is liable. Pipes, wires etc are included as utility infrastructure.
A definition of utility infrastructure is found here: https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance/utility
In my opinion (1) the false fire alarm invoice from cooking should not be passed on to the Lot owner unless there is a “Recovery of cost of false alarm” by-law.
(2) the Lot owner can be invoiced for the trades person’s activities in triggering the false fire alarm even if there is no “False alarm” by-law as the Lot owner should probably have an approved by-law covering the renovation which would compensate the OC for any damage to the common property.
It would also be advisable to provide advice to Lot owners as to how they can reduce their exposure to false call outs, particularly when a renovation is taking place. Perhaps brochures such as this can be displayed in a prominent place in the building and/or provided to all Lot owners: https://www.fire.nsw.gov.au/gallery/files/pdf/business/Unwanted%20alarms%20brochure.pdf
False fire alarms can be caused by some alarms being overly sensitive, some are the incorrect type, some are located in inappropriate locations e.g. too close to the cooking areas, some may not be of sufficient design to allow the delineation of cooking by-product versus fire smoke, and some are poorly maintained. It would be wise to have these issues investigated by a competent authority.
While a strata scheme that has a “Recovery of false fire alarm” by-law in place may issue a “False alarm” invoice to a Lot owner this invoice can always be disputed by an Lot owner if the Lot owner believes it to be unreasonably applied.
In general, if an owner disputes a charge, they should pay the disputed amount (to preserve their voting rights and avoid the imposition of overdue charges and debt recovery costs) and then they can challenge the amount first with the owner’s corporation and then through NCAT if necessary.
Apparently only 1.3% of call outs are for real fires, with the remainder being false alarms.
It wouldn’t be reasonable to invoice an occupant for a fire call out from cooking. “FRNSW does not support charges being passed on to individual occupants, although exceptions may apply.”
https://www.fire.nsw.gov.au/page.php?id=77
Does your building have the the correct type of alarms? There are several different types of alarms. Some alarms are too sensitive to false readings. Perhaps the alarms need to be replaced.
I am with JT on this issue. I am not certain about this but …. recovery of a debt from a levy contribution may be treated differently by NCAT than a debt from a personal liability from an individual Lot owner’s burst pipe. A quick phone call to NCAT should sort this out.
Perhaps the Owner has had advice about their responsibility and is now unsure of whether they are totally responsible for the payment of the invoice and are waiting to have this confirmed by Mediation or the OC requesting an NCAT order.
This raises a few separate issues, not the least of which is – who owns the property on either side of the retaining wall and fence.
Below is an article that may prove useful
http://www.lawaccess.nsw.gov.au/Pages/representing/lawassist_fences/retaining_walls/home.aspx
There is no legal requirement to have a pest inspection done, however not undertaking a pest inspection can prove to be a false economy in the long run.
If the Committee are not willing to undertake an annual pest inspection then you have the option of raising a Motion at a General Meeting requiring that an annual pest inspection be undertaken. The Motion would require approval by Ordinary Resolution. You could obtain a quote from a reputable pest inspection company and include it in your Motion.
A termite inspection, and an annual treatment for cockroaches on common property would be two common actions undertaken by an OC.
Not all termite damage is the responsibility of the OC as the duty to repair and maintain is not limitless: <i> Mullen v Owners Corporation SP15342 [2017] NSWCATCD</i>
Below is a link to a Tenancy site that deals with who is responsible for pest infestations. Some pests would not be responsibility of the OC, unless they are on common property. Black or brown ants, and cockroaches are two examples where the owner or the tenant would be responsible for ridding their individual Lot of these pests as the general cleanliness of the inhabitants could be all, or partly, to blame for such an infestation in a Lot.
https://www.fairtrading.nsw.gov.au/housing-and-property/renting/during-a-tenancy/pests-and-vermin
I missed it too, SH.
Victoria has the additional interesting conundrum of the ‘benefits principle’.
“The bottom line is this:
Before issuing the special levy the OC was required to consider whether the works wholly or substantially for the benefit of some or one, but not all, of the lots;
- if not, fees must be based on lot liability;
- if so, fees must be charged on the basis that the lot owner of the lot that benefits more pays more.
- if the OC fails to consider to consider the application of the legal principle it has committed a fatal error and the fees are not payable.
The OC must act in good faith and exercising due care and diligence (see Grundl [at 16]) and honestly and reasonably in considering whether the benefit principle applies (see Grundl [at 20]).”
from https://www.lookupstrata.com.au/vic-qa-expenses-recovery-and-benefits-of-common-property/
I agree with Austman. Check your development plan.
A similar situation exists in QLD where developments such as villas and some townhouses can be registered under a Standard Format Plan. Maintenance responsibilities are very different from Building Format Plans. Building Format Plans usually apply to multi storey developments, and some town houses.
However, if roof maintenance is part of the OC responsibility and there is no By-law etc that indicates otherwise then the ‘new’ owners have a legal right to request that the OC undertakes its responsibilities.
I can understand the other ‘old’ owner’s concerns however, the ‘new’ owners were not party to the original ‘gentleman’s agreement’ made between all of the previous owners and they probably had no knowledge of them when they purchased their Lot. You may be able to win the ‘new’ owner’s agreement to the previous maintenance but they would not be compelled to agree if they chose not to.
In principle the Owners Corporation <u>must</u> maintain the common property. My suggestion is that if an agreement can be reached with the ‘new’ owners then a By-law (approved by Special Resolution) be created ASAP to prevent this situation from arising again, as suggested by SH.
Seek legal advice when writing this By-law as it may be challenged if not carefully constructed. Be aware that there are some situations where an OC cannot opt out of their duty to maintain the common property, even with a By-law, and these include situations where the safety of any building, structure or common property in the strata scheme are involved.
Bluey – The OC can remove almost any decision making power from the Committee and place it within the decision making powers of the OC. See SSMA 2015 [s36(3)(b)].
If you believe that the OC is better placed to make certain decisions then you can submit a Motion on this issue for consideration at a general meeting. These issues (in QLD at least) are then generally known as “Restricted Issues” for the Committee.
As an example the wording could be:
“That the Owners Corporation make it a restricted issue under SSMA 2015 to authorise:
xxxxxxxxxxxxxxxxxxxx
so that such matters are reserved for decision by ordinary resolution of the Owners Corporation at a general meeting.”
I am not sure how these resolutions are recorded in NSW but in Qld the Body Corporate record the restricted issue in the register of reserved issues in accordance with section 201 of the Body Corporate and Community Management (Standard Module) Regulation 2008.
The OC can restrict the Committee from making decisions on all manner of things.
This will probably mean that more general meetings are held in a 12 month period, which may be more expensive in the long run, but that may be a trade-off if you believe that your Committee are not acting appropriately.
http://classic.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s36.html
In my opinion, some issues that you mention don’t really concern you so I cannot quite understand why you are worried about them.
Over capitalization or a ‘silly’ renovation – is not your concern.
Renovating to sell – is not your concern.
Not obtaining a CDC prior to OC approval – It is my understanding that the OC approval must be approved prior to a CDC application as the OC approval forms part of the CDC application. An application for a CDC cannot be submitted without first obtaining approval for the renovation from the OC. Perhaps the owner is in the process of undertaking an application for a CDC now?
No CDC at all, when one is required – this may be a problem for the owner who may incur a fine, or have difficulty when they sell the apartment and/or have difficulty obtaining insurance but this is not something that should bother you.
Noise issues – yes it may concern you if you are an owner directly adjacent or directly underneath, but perhaps noise mitigation has been included in the renovation and may be why it was approved by the OC. Are you an owner within this category?
When you mention that the Special Resolution was registered I am assuming that the by-law was registered.
Electronic voting approval – was the wording in the Motion regarding the change of voting method for the AGM recorded as a ‘must’ or a ‘may’? If it was recorded as a ‘must’ and you believe that the vote may have had a different outcome had electronic voting been used then you could take the matter to NCAT. If it was recorded as a ‘may’ then voting by electronic means is optional rather than compulsory.
Exchange of contracts is the point at which both the buyer and the seller commit to the sale and the purchase. However, that is not the point at which ownership of the house or Lot actually transfers to the new owner. That only happens on completion i.e. Settlement.
On Settlement: The sale is made final. Ownership is transferred from the seller to the buyer. Transfer of Title occurs. The purchaser is able to take possession of the property. The seller discharges any mortgage that they had over the property. The purchaser pays to the seller the remainder of monies as outlined in the Contract.
I tend to agree with SH.
The Contract can sometimes ‘fall over’ before the date of Settlement (completion), though not without penalties.
The new owners name cannot appear on the Strata Roll until after Settlement.
There are only 3 types of Renovations: Cosmetic, Minor, or Major.
You may have missed my point about the the internal walls being attached to the common property slabs i.e. ceiling and floor.
The wall itself may not be common property, and it may not be structural, however the wall being attached to common property is important.
Therefore a wall removal will be at least a Minor Renovation. If not a Minor Renovation then it will be a Major Renovation.
The only other type of renovation is a Cosmetic Renovation. Removal of a wall is not a Cosmetic Renovation as it is not a superficial ‘day to day’ renovation e.g. hanging a painting.
In my opinion …
It is essential first to obtain a structural engineers report to ascertain whether the wall to be removed is structural or non structural, and whether waterproofing will be impacted.
If there are no internal walls on the structural plan then the engineer should state this in the report.
The structural engineer’s report should be included with any application to the Owner’s Corporation for renovation work.
Check with your Council. A Council Development Application may still be required where you are changing the dimensions of any room. The Council Development Application requires approval by the Owners’ Corporation.
An internal wall, although it is not located on common property will still impact common property as it touches the common property ceiling slab and the common property floor slab.
The removal of an internal wall will be either a Minor Renovation or a Major Renovation, depending on the circumstances.
If total removal of a non structural wall is desired then the project would probably be classified as a ‘reconfiguration’ and therefore be a Minor Renovation.
If total removal of a non structural wall is desired AND it impacts on any waterproofing then this shifts the project into being a Major Renovation.
If total removal of a structural wall is desired then it would be a Major Renovation.
Minor Renovations require a different type of approval process than Major Renovations.