Strata Gems: Answering your curliest questions

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 It’s a simple fact: nothing in strata is simple.  So we asked Strata Community Australia (the strata managers’ professional body) and the Owners Corporation Network (strata owners) a few head-scratchers just to see where they are on the same page … or not.

Bush lawyer bully

Our Executive Committee has become dominated by one man who claims to be an expert in strata law and, more to the point, won’t let anyone else speak if they disagree with him.  He was not elected at the last AGM but turns up at meetings and interjects and makes negative comments, occasionally going off on a rant.  I know he is entitled to attend meetings and is only allowed to speak if the committee agrees – but what do we do when he refuses to sit down and shut up?

SCA: The Chair must make it clear through a statement at the start of the meeting that visitors are welcome but may only speak after seeking permission of the executive committee. Failure to comply with this legislative requirement may result in the meeting being suspended until the visitor can act appropriately and in accordance with the rules. If he still fails to comply then you may have to ask him to leave the meeting.

Alternatively if you have a strata manager it might be possible to hold the meetings in their offices making it difficult for your problematic owner to attend and/or misbehave. As a last resort you might need to seek some mediation from the NSW Civil and Administrative Tribunal. They might help you strike an agreement from him to observe the rules at future meetings. 

OCN: Stop trying to do this by yourselves.  Too informal and personal.  Get an outside expert to hold the line.  For the next committee meeting, invite either your strata manager or, even better, an assertive lawyer, to attend.  They should be briefed to stop the intervention of the vexatious individual.

Alternatively, keep a record and document all vexatious behaviour of the individual and then have a solicitor send them a letter telling them to cease and desist.

Repairs needed but we’re broke

Our building’s common property is badly in need of repairs and a refurb.  One problem is that we don’t have the funds as the sinking fund has been neglected for years.  The other is that there are a couple of older residents who have been there from day one who say they won’t be able to afford a rise in levies, let alone a special levy.  Some owners say they would let the older residents’ off their share of the special levy just to get the work done.  Our strata manager says this is not allowed but we have an obligation to fix common property.  What’s the answer?

NB: Both the SCA and OCN agreed that owners corps have a legal duty to maintain and repair common property

SCA: Failure to maintain the property could end up costing a lot more than increased levies especially if someone is injured or killed as a result of a lack of maintenance.

You may want to consider taking out a loan to cover the immediate costs of the repairs to common property. The loan can then be repaid through increased levies but at least this won’t be as big a hit as a one off special levy due to the interest and principal being paid over a number of years.  Of course levies would need to be increased to cover the loan.

You should also urgently get a review of the sinking fund done and ensure that this is kept up-to-date. A ten year sinking fund plan is required by law and the owners corporation can engage a profession to assist in the preparation of the plan.

As for your older residents, the sentiment of wanting to help out is admirable but they are legally responsible as lot owners and therefore must contribute. Alternatively if owners wish to assist the elderly residents they could pay their portion of the special levy, as the Act does not allow their levy to be waived.

OCN: The owners corporation is not a welfare society.  Lot owners are all obliged to contribute.  The sinking fund is a way for today’s owners to pay their fair share of the wear and tear on a building, and of easing the pain of paying for major works.

Make sure you keep things objective and arms length by engaging a structural engineering firm to carry out an expert inspection and prepare a report with recommendations, which can include a priority order and estimated budget.

It may be that the work can be staged over time to avoid one great big special levy.  Other options are strata finance, where the owners corporation borrows to do the works and repays the borrowing through levies.  And reverse mortgages allow older residents on fixed incomes to borrow against their home.

Chairman’s parking perk

Once a week our chairman, who doesn’t live in the building, uses visitor parking for his car for several hours while he attends business meetings (and a nearby gym).  Last week a doctor attending a resident had to park on the street and got a ticket.  The chairman says using the parking spot is a “little perk” for all the hard work he does for the building (and he is pretty efficient and organised).  But I think he’s setting a bad example to other owners.  What do you reckon?

SCA: Visitor parking is usually part of the Development Consent for the scheme and, as such, is for visitors not owners or occupiers.  On this basis an owners corporation cannot consent to owners or occupiers parking in this area to do so would place the owners corporation in breach of the Development Consent.

Reference should be made to the existing by-law for your scheme and you may need to have the executive committee resolve to issue a Notice to Comply on the offender to stop illegally parking on the common property or if that fails seek assistance from NCAT.

OCN: Yes, the chairman should be leading by example and, no, the chairman should not be getting a perk.  This is an infringement of the by-laws, which the owners corporation should enforce without fear or favour.  If the owners feel the chairman should be recompensed for his efforts, they can consider an honorarium.

Heartbreak hound

I love dogs and while I don’t mind them living in apartments I do find it hard that they are often left alone all day and sometimes into the evening. Dogs are very sociable animals and I thing leaving them locked up all day is cruel. The one next door to me doesn’t bark, so he is not breaking any by-laws, but I sometime hear him scratching and whining at the front door which I find very distressing. Is there anything I can do?

SCA: Hear, hear – we at SCA (NSW) love pets too but we love responsible pet owners more. Hopefully your by-laws allow pets. If that’s the case and if you have the time why not ask your neighbour if you can look in on and perhaps event walk Fido each day. It could be a new business for you especially if others in the apartments have pets as well.

OCN: If dogs are allowed to live in your building, then from an owners corporation viewpoint, this is not your business.  On a personal level, you may want to have an informal chat with your neighbour, suggesting environmental enrichment such as kongs, or perhaps offering to mind or walk the dog on occasion.  A solution to a more specific reason for the scratching is a PetLoo; a hygienic, convenient, simple and an environmentally friendly way to allow a pet the freedom to do its business without relying on its owner for an outing.

 

Our building has a by-law that allows barbecues on balconies .  The by-law only says that the barbecue must be kept clean and fish and seafood must be cooked in foil because of the smell.  However, my neighbour below likes to put wood chips of some description on his grill and the smoke comes into my unit.  I am sure this can’t be good for my health.  How do I prove this is a nuisance?

SCA: Section 117 of the Strata Schemes Management Act 1996 allows for actions to be brought for nuisance. Owners and occupiers are not to create a nuisance which is likely to interfere with the use or quiet enjoyment of the common property by other owners or occupiers.  

The first thing is speak to your neighbour about this issue. You might be able to come to some compromise that he can smoke his food as long as you’re given advance warning and can close your doors and windows.

If the smoke still comes in or your neighbour is not co-operative and won’t give up smoking his own food then you could bring an action in the NCAT seeking an order to comply with the Act and cease using his BBQ as a smoker.  You may also request that the existing by-law is reviewed and perhaps changes added to include a restraint on using BBQ’s for smoking.

OCN: If you have a grievance, your first approach can be a friendly chat with your neighbour about the effect on you, which they may not realise.  If that does not resolve the matter, you could approach the committee about amending the by-law in some way to include a condition relating to excessive smoke.  You need expert advice on how you prove the smoke is excessive, from a doctor or a fire safety expert.

 

 

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1 COMMENT

  1. Our Executive Committee wish to have an Umbrella By Law. Would you tell me the legal name for such a by law and how future items are added to it.

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