Who is responsible for fixing a balcony on common property that has fallen into disrepair but was constructed without the approval of the owners corporation?

It’s not uncommon for owners to build structures on common property without the approval of their owners corporation.  But what happens when these structures fall into disrepair?

Who is responsible for fixing them?  And can the owners corporation insist on those structures being demolished?

A recent NCAT case decision may surprise you Balconies, Common Property and NCAT

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

Can the chairperson of an owners corporation disconnect the hot water supply to common property showers in a swimming pool area without the authority of his owners corporation?

A recent NCAT case grappled with this interesting issue.

So, how did they resolve it? Hot Showers, Common Property and NCAT

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

In a recent case, NCAT has decided that a landlord falls under no obligation to ensure that their tenants comply with the by-laws in a strata scheme.

The Case
The case of Filetti -v- Eales; Eales -v- Filetti [2018] NSWCATCD 66 involved a dispute about noise between owners and residents in an apartment building in Vaucluse, Sydney.  Ms Filetti owns and lives in an apartment in that building.  She claimed that the tenants who lived in the apartment above hers created excessive noise. Ms Filetti applied to NCAT for orders against the tenants and the owner of the apartment above, Mr Eales, to require them to treat the floor space of their apartment to prevent the transmission of excessive noise. Ms Filetti also sought an order to compel Mr Eales to require his tenants to comply with the by-laws concerning the noise, and an order to require Mr Eales to compensate her for breaches of the by-laws committed by his tenants.

The Decision
NCAT dismissed Ms Filetti’s claim.  NCAT was not satisfied that Ms Filetti had proven that Mr Eales’ tenants created excessive noise.  NCAT accepted that it had power to make an order to require a lot owner to comply with the by-laws.  However, NCAT did not consider that it could make an order requiring an owner to ensure his or her tenants comply with the by-laws.  NCAT observed that the strata legislation does not impose an obligation on landlords to ensure their tenants comply with the by-laws (although NCAT did find that a landlord had capacity to require his or her tenants to comply with the by-laws).  For that reason, NCAT dismissed Ms Filetti’s claim for an order for Mr Eales to ensure that his tenants complied with the by-laws.

The Claim for Compensation
Ms Filetti also made a claim for compensation against Mr Eales for a breach of the by-laws by him.  NCAT expressed doubt that it had power to make an order for compensation in the circumstances.  NCAT considered that the decision of the Court of Appeal in The Owners Strata Plan 50276 -v- Thoo [2013] NSWCA 27 suggested that compensation is not available in respect of a breach of a by-law either in NCAT or a court of general jurisdiction.

Conclusion
Ultimately, Ms Filetti’s claim was unsuccessful because she did not prove that Mr Eales’ tenants were making excessive noise in breach of the by-laws. However, the more interesting aspects of the case are the findings by NCAT that it cannot make orders requiring a lot owner to ensure his or her tenants comply with the by-laws or order one lot owner to pay another owner compensation for a breach of the by-laws.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

In a recent case NCAT upheld a general meeting special resolution of an owners corporation that approved the installation of new rain water tanks in a strata scheme, despite there being:

• technical non-compliance with the Strata Schemes Management Act 2015 (SSMA) in the notice convening the general meeting
• an argument by a lot owner that the placement of the new rain water tanks near her lot devalued the lot

So, was the decision a victory for common sense?  Tribunal Upholds Validity of General Meeting

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

NCAT was recently presented with a unique insurance problem concerning the insurance policies for a strata scheme in the snowy mountains region of NSW.

The strata scheme contains 100 lots and common property with free standing houses and outbuildings that are situated on acreages.

The common property also includes a free standing community hall, roads and paddocks occupying 806 acres of rural land.

Confronting the owners corporation for many years was a unique insurance problem. The strata legislation required the owners corporation to insure all of the buildings in the strata scheme, even the homes and outbuildings that were situated entirely on the lots and did not contain any common property.

How did NCAT resolve this unique Insurance Problem?

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.

We’ve been receiving a few enquiries in regards to the rules for levy recovery and payment plans under the new strata legislation.

You may recall late 2016 the new laws came into play giving lot owners the specific right to request an owners corporation to agree to a payment plan for any levies in arrears.

However, before a levy recovery payment plan can be put into place,  the owners corporation must accept the payment plan at a general meeting.

Therefore any lot owner who wants to pay their levies by instalments through a payment plan has to do the following:

1. Make a request (supported by owners who hold at least 25% of the unit entitlements) to the owners corporation to hold an EGM at which the owners corporation will consider the request of the lot owner to enter into a payment plan.
2. Pay the costs of holding the EGM at which the owner wants the payment plan to be approved.
3. Explain to the owners corporation why the payment plan should be approved to convince other owners why they should be given more time to pay their levies.
4. Have the payment plan approved at the EGM or alternatively, wait until the AGM for the plan to be approved.

Important

It’s important to note that by holding an EGM it is not guaranteed that the request for the payment plan will be approved as the entry into a payment plan is a discretionary matter for the owners corporation and it is not a mandatory requirement that such a plan has to be accepted.

Conversely, an owners corporation in a deserving and genuine case may decide to accept a request for a payment plan provided the owners corporation is of the view that the plan is likely to be adhered to and is fair and reasonable.

If a request for a payment plan is refused the lot owner may decide to take legal action in NCAT to ask for more time to pay their levies (but this would be unusual) or seek orders from the Local Court to permit the levies to be paid by instalments.

Any payment plan approved by an owners corporation cannot extend beyond 12 months and still does not prevent the owners corporation taking legal action against the lot owner to recover overdue levies.

For the full details of the new levy collection laws read our paper – Levy Collection New Laws

For NSW levy collection or strata legal advice please contact us here or call 02 9562 1266, we’re happy to assist.

NCAT has recently changed the rules that apply to expert evidence in most strata cases.

These changes relax the rules relating to expert evidence and make it easier for opinions to be given by experts in a quicker and cheaper way.

Previously, if a person such as a building consultant, engineer or valuer, wanted to give expert evidence in a strata dispute in NCAT, they had to comply with certain rules before their evidence would be accepted.

These included rules that required the person to follow an Expert Witness Code of Conduct to ensure that they act as an independent expert and not as the “hired gun” of one of the parties.

Often, an expert’s report would be rejected by NCAT if those rules were not followed.

However, those rules no longer apply to most strata disputes. This means that experts will now be able to give evidence in most strata cases in NCAT without having to comply with every aspect of the Expert Witness Code of Conduct.

This is intended to ensure that opinions for strata disputes, given by experts, are able to be obtained in an easier and cheaper way although those opinions will still need to be soundly based and reliable.

So, what are the new rules for giving expert evidence? NCAT Changes the Rules for Strata Disputes.

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

Did you know a person involved in a strata dispute in NCAT must get permission from NCAT to be represented by a strata lawyer?

Under the previous legislation, legal representation at NCAT was allowed. However, all of that changed with the introduction in 2014 of the NCAT and in 2016 the Strata Schemes Management Act 2015.

This has created problems and questions for many owners corporations which require legal representation in NCAT such as:

• When and will NCAT grant permission for a party to be represented by a lawyer?
• What happens if NCAT refuses to allow a strata lawyer to represent an owners corporation – who will present the owners corporation’s case?
• Can the strata lawyer still help if they cannot provide representation at NCAT?

So, what role can a strata lawyer for an owners corporation play when NCAT does not allow the lawyer to represent the owners corporation?  What is The Right to Strata Legal Representation in NCAT?

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

The Supreme Court recently ordered a lot owner who succeeded in litigation against an owners corporation to pay the owners corporation’s legal costs.

This is one of the first times a litigant has been punished by an adverse costs order for approaching the Supreme Court for relief which could have been given by NCAT.

We recently wrote about this case and the decision of the Supreme Court. The Court decided that an owners corporation of an apartment building in inner Sydney could not upgrade or build on common property in a way that would prevent a lot owner gaining access to, and egress from, a car space lot with a regular sized car.

So, what was the outcome after the Court handed down its judgment? Why did the Court decide that the lot owner should pay the litigation costs?

Read the full details here Supreme Court Orders Winner to Pay Legal Costs.

For NSW strata legal or levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

At the commencement of 2018 the new strata building bond and inspection scheme started.

The strata building bond and inspection scheme is designed to incentivise developers ensuring that there is a clear process for builders to minimise any building defect issues in new residential high-rise strata blocks.

 Proposed regulations and Amendments

Proposed amendments to the Strata Building Bond and Inspection Scheme have recently been announced.

Currently, under the scheme developers are required to lodge a bond of 2% for residential and mixed-use high-rise strata buildings of 4 or more storeys.

The proposed amendments to the strata building bond and inspection scheme seek to enhance the ability of Fair Trading to verify the building contract price (on which the 2% building bond is based) and to clarify the role of the building inspector in the scheme.

So, what are the specific proposed amendments?

• Developers must lodge a building bond before applying for the occupation certificate (rather than at any time before an occupation certificate is issued, as is currently required)
• The owners corporation and the developer must agree on the amount to be released from the bond to meet the costs of fixing identified building defects. If they cannot agree, the Secretary will determine this amount
• New investigative powers for Fair Trading to enable verification of the amount of the contract price or building bond, including new entry to premises and search warrant powers
• An increase in the maximum penalty for a developer failing to lodge the building bond from 200 penalty units ($22,000) to 10,000 penalty units ($1.1 million)
• An offence for developers to provide false or misleading information to the Secretary in relation to the contract price or the building bond
• A new ‘good faith’ liability protection for building inspectors, and the professional associations that appointed them, which excludes them from liability for anything done (or omitted to be done) in ‘good faith’ in conducting an inspection

 Have your say!

The deadline to have your say on the proposed Bill and/or Regulation amendments is 11 May 2018, visit NSW Fair Trading to have your say.

For NSW strata legal or levy collection advice please contact us here or call 02 9562 1266, we’re happy to assist.