As the world we live in drastically changes, people are looking for more economical and sustainable ways of living.

Many families (and others) are downsizing and moving into strata apartment living which often means they need to also review their current transport options.

The parking incident that raised many questions!

In a recent incident a lot owner was sent a notice from their owners corporation to remove a kayak from their parking lot. The kayak was stored neatly in front of their motor vehicle within the confines of their parking space.

The owners corporation said the kayak was not a vehicle so therefore it had to be removed or the owner would incur a fine. The owner argued that the kayak was a vehicle and therefore could be kept in the parking space according to the building’s by-law for parking.

• Firstly, is a kayak classified as a non-motorised vehicle?
• What if the kayak was strapped to roof racks on the motor vehicle (providing the height allowed for this), would the owner have been asked to remove the kayak?
• What if it was a non-motorised bicycle or scooter that was parked on the parking lot?
• What if it was an e-bike or an e-scooter – are they classified as motor vehicles?
• The list goes on: row boats, dinghies, skateboards, rollerblades etc all types of transport.
• Should the by-law have stipulated (among other things) motorised and non-motorised vehicles?
• What is legally deemed as a transport vehicle and what is not?

As government and local councils push communities to reduce carbon emissions – the question that must be asked is: do we need to now allow for other forms of transport vehicles with lower emissions to be parked on parking lots within strata complexes?

Do you need to review your parking by-law?

The lesson here is to ensure that your parking by-law is current and in-line with today’s ever-changing world.

Most likely your parking by-law is out of date and requires a review.

For a parking by-law review speak to our specialist strata lawyers here now.

YOUR PARKING BY-LAW NEEDS A REVIEW CLICK HERE NOW!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

The Scenario

Mr Smith owns a residential lot in a strata building in Sydney.  The floor tiles in Mr Smith’s bathroom have cracked and are damaged beyond repair.  The building was constructed 30 years ago so matching replacement tiles cannot be found.  Is Mr Smith entitled to insist on the owners corporation re-tiling his whole bathroom so that the bathroom tiles have a uniform finish?  In this article we explore the answer to that question.

The Law

An owners corporation has a statutory duty to properly maintain and keep in good repair the common property and, where necessary to renew or replace any fixtures or fittings that form part of the common property under section 106 of the Strata Schemes Management Act 2015.

This duty requires the owners corporation to replace an item of common property when it is reasonably necessary to do so because, for example, the item has been damaged beyond repair: Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC425.

So what happens when tiles on the floor or a wall of a bathroom that form part of the common property are damaged beyond repair but matching tiles cannot be found.  Can the owners corporation just replace the damaged tiles doing the best it can?  Or does the owners corporation have to re-tile the entire bathroom to ensure a uniform tiled finish?

Replacing Damaged Tiles

Where tiles are damaged beyond repair and matching tiles cannot be sourced, the duty of the owners corporation is to use replacement tiles that are substantially similar in appearance, characteristics, quality and amenity to the existing tiles.  This can require the owners corporation to replace a larger section of tiles to achieve substantial similarity: Selkirk v The Owners – Strata Plan No. 2661 [2024] NSWCATAP 17.

However, this does not necessarily mean that, where matching tiles cannot be found, the owners corporation is responsible for re-tiling the entire bathroom.  There are a number of cases which make this clear.

The Cases

1. In Stolfa v Owners Strata Plan 4366 & ors [2010] NSWSC 1507 a lot owner did work which damaged five tiles on a bathroom wall in another lot. The owner of the damaged bathroom applied for an order that the other owner compensate her for the cost to re-tile the whole bathroom because matching tiles could not be found. The Court rejected that claim and was unpersuaded that such a course was reasonable, particularly in the absence of evidence establishing that a reasonably approximate matching tile, albeit not a precise match, was unachievable. The Court allowed an amount to cover the cost of re-tiling the damaged wall only.
2. In Petropoulos v CPD Holdings Pty Ltd t/as The Bathroom Exchange (No 2) [2018] NSWCATAP 233 a builder renovated a bathroom and an ensuite bathroom for a homeowner but built the shower recesses too small. The owner wanted the builder to re-tile the whole bathroom floor after enlarging the shower recesses because matching tiles could no longer be found and the owner was concerned that a patch repair would compromise the waterproofing membrane. NCAT’s Appeal Panel rejected the owner’s request and concluded that it was reasonable for the builder to attempt to match the tiles rather than completely re-tiling each bathroom. The builder was ordered to ensure that replacement tiles were of the same colour, dimensions and type as the original tiles, or if no identical replacement tiles were available, of a colour that most closely matched the original tiles.
3. In The Owners – Strata Plan No 74602 v Brookfield Australia Investments Ltd [2015] NSWSC 1916 an owners corporation sued a builder for defects. The owners corporation alleged that there were waterproofing defects in bathrooms due to incorrectly installed water stop angles as a result of which bathrooms needed to be completely re-tiled due to the difficulties in obtaining matching tiles, even though only a small number of tiles needed to be replaced. The Court concluded that this would amount to the complete demolition and reconstruction of the bathrooms which was unreasonable and unnecessary particularly as there was no evidence of water leakage from the bathrooms.
4. In SP 62930 v Kell & Rigby Holdings Pty Ltd [2010] NSWSC 612 an owners corporation sued a builder for various defects including waterproofing defects in bathrooms. The owners corporation asked the Court to order the builder to pay damages to cover the cost of re-tiling all of the bathrooms because matching tiles could not be found and owners were entitled to a uniform tiled finish in their bathrooms. The Court concluded that it would be unreasonable for an owner to insist on replacement of a large quantity of undamaged tiles at great cost if a close match could be found and installed in a place (such as an architectural break) where the joinder of the tiles would not be immediately obvious. The Court held that the floor tiles within the showers in the affected lots should be replaced, making use of an appropriate existing architectural break, and that it was not reasonable for the owners corporation to insist upon the complete re-tiling of the entirety of the bathrooms.

Analysis

These cases demonstrate that both NCAT and the Supreme Court have rejected claims for entire bathrooms to be re-tiled when a small section of tiles are damaged or defective and perfectly matching tiles cannot be found.

However, in general, the owners corporation will still need to ensure that the work it does to replace the damaged tiles achieves an acceptable aesthetic finish.  This may require the owners corporation to re-do more than just replace the damaged tiles.  It can require the owners corporation to replace, for example, one or more walls which contain damaged tiles or an entire shower recess by making use of appropriate architectural breaks.

Ultimately, each case turns on its own facts but it will often be the case that it will be unreasonable for an owner to insist on an owners corporation replacing a large quantity of undamaged tiles at great cost if a close match can be found to achieve an acceptable aesthetic finish.

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Caution as Lithium Batteries the Fastest Growing Fire Risk in NSW Units

The message from Fire and Rescue NSW (FRNSW) regarding the rise of lithium-ion battery-related fires across NSW is ‘be alert, cautious and proactive’.

It’s important that strata managers, strata committees and strata residents understand the fire risks related with lithium-ion batteries and to be prepared if things go wrong.

FRNSW has Published these Statistics

• 63 lithium-ion battery fires so far this year
• An average of 5.7 blazes per week
• Of those, there have been 2 deaths and 7 people injured
• On 14 March, 4 injuries occurred on that day, including due to a faulty battery discarded in a garbage bin that later ignited in a rubbish truck
• During 2023 injuries rose from 14 to 38 and have continued to rise
• In 2023, lithium-ion battery fires increased by 60% on the previous year

Sydney’s East Most Notable E-bike Fire Incidence

The most notable incident was in Sydney’s east in the highly dense suburb of North Bondi in late January 2024, with a faulty e-bike battery was left to charge overnight in a bedroom, and ignited, sparking a fire.

The four occupants were awoken at 4am by an explosion, and a fire alarm sounding, and luckily all escaped just in time, but one required treatment for a burn.

Lithium-ion batteries can be found in many household appliances and portable electronic-devices not only in e-bikes and e-scooters however with the increase of e-vehicles this has been the main cause for the increase in lithium battery fires.

FRNSW has expressed that greater awareness and education is needed about how to select, use, charge, store, and dispose of lithium-ion batteries, to reduce the risk of fire.

Important Proacative Safety Advice

• Never sleep or leave your home while lithium-ion batteries, or devices powered by them, are still charging
• Disconnect them from the charger once charged
• Avoid charging or storing them near exits and near flammable materials
• Never dispose of them in your rubbish, bins or recycling bins
• Used lithium-ion batteries can be taken to your nearest BCycle battery recycling drop-off point, often located in major retailers and supermarkets
• It’s important to always buy lithium-ion batteries and chargers from reputable brands and refrain from mixing different components
• You should have an e-bike/e-scooter by-law in place to manage residents and fire safety
• For more information visit FRNSW Lithium-ion Battery Safety
• If such a fire occurs, evacuate immediately, and call 000

REDUCE THE RISK OF BATTERY FIRE WITH A E-SCOOTER / E-BIKE BY-LAW

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Is there a need to update your short-term letting by-law?

Major players, Airbnb and Stayz, in the short term rental accommodation (STRA) market have both committed to support the NSW government’s tourism levy by way of a formal submission.

However, both players are calling for all tourism accommodation operators including hotels to also foot the new tax.

The NSW government’s review of STRA is in response to growing calls for stricter regulations on the burgeoning short-term rental market, which has faced criticism for its impact on housing affordability and local communities.

The levy is structured to ensure that larger operators, who derive substantial income from short-term rentals, contribute their fair share to the local economy. At the same time, it aims to minimize the impact on small-scale operators and homeowners who rent out their properties occasionally.

For more information: Airbnb and Stayz Accept Tourism Levy for Holiday Stays

DO YOU NEED TO UPDATE YOUR SHORT TERM RENTAL BY-LAW?

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Deadline for Assistant Strata Managers licence qualifications extended by 3 Months

The NSW Government has given assistant real estate agents and strata managers in NSW an additional three months to keep working while they register for professional qualifications.

The extension will avoid thousands of assistant agents being forced to leave the industry at a time when demand is at an all-time high and rapidly growing. It will also ensure that tenants and landlords, continue to receive essential property management services.

Back in March 2020 assistants were put on a four-year certificate period which is due to expire this month on 22 March 2024. They can now apply for a one-off extension from 1 March to 22 June 2024.

Assistant agents must be enrolled in either Certificate IV in Real Estate Practice (CPP41419) or Certificate IV in Strata Community Management (CPP40516 or CPP40521) to apply for this extension.

On the Spot Fines

On the spot fines of $1,100 from NSW Fair Trading or court issued fines of up to $11,000 will be issued should an agent fail to meet the deadline and continue working without the appropriate certificate.

Licensees in charge and employers who oversee and manage assistant agents without a registration will face the maximum penalty of $11,000.

More Information

Please visit  NSW Government Fair Trading for the following information:

• Certificate of registration extension
• How to apply
• Fees
• Statement of regulatory intent
• Certificates expiring after 22 March 2024
• Updating your details

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Adrian Mueller Explains the New Strata & Community Law Reforms?

Adrian Mueller talks ‘phase 1’ of the strata law reforms, and the amendments to the Strata Schemes Management Act 2015 (NSW) below, including:

1. Transitional Period
2. Strata Renewal Process
3. Pets and Assistance Animals
4. Committees
5. Annual General Meetings
6. Financial Management
7. Notices and Record Keeping
8. Lot 2 Schemes: Consolidation of By-laws & Complying with the Act, Managing Agents and Commissions

DO YOUR BY-LAWS NEED UPDATING IN LINE WITH THE NEW LAWS?

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Pets, By-laws and New Legislation

In December 2023 new strata laws commenced that changed the rules regarding pet ownership, including assistance animals, in strata buildings.

What do the new pet rules mean?

• Any fees, bonds and insurances imposed by the owners corporation are now banned under the new legislation.
• It’s also now easier for lot owners and tenants with assistance animals to prove their animal’s ‘assistance’ status with less loopholes to jump through.
• Those new rules will result in some existing pets by-laws (or parts of them) being invalid and will need to be reviewed.

Pet By-laws will Need to be Reviewed!

 Therefore, it is time to get all pet by-laws reviewed to ensure they comply with the new laws.

CLICK NOW FOR A PET BY-LAW REVIEW IN LINE WITH THE NEW LAWS

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Short-term Rental Policies Under Review

As the NSW Government grapples with the housing crisis across the state short-term rental accommodation (STRA) comes under the spotlight.

Policies and framework for STRA in NSW will be reviewed with the hope to unlock the supply of long-term and affordable accommodation.

As such, the NSW government is looking for community feedback on the recently released discussion paper which will form part of the comprehensive review of NSW STRA.

Have Your Say…

• Complete the survey
• STRA discussion paper
• Further information

The survey completion deadline is 14 March 2024.

Review Your STRA By-laws

Do you need to review or update your current short-term rental accommodation (STRA) by-law? Speak to the STRA experts today!

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Is it Possible to Ban E-bikes and E-scooters?

There have been a recent spate of fires in Sydney apartment buildings caused by the charging of e-bikes and e-scooters.  Those fires have resulted in a number of strata buildings introducing by-laws to ban or regulate e-bikes and e-scooters.  But is it possible to ban e-bikes and e-scooters?

An owners corporation has a broad power to make by-laws to manage, control and administer the use of the lots and common property in its building.  This enables an owners corporation to make a by-law that stipulates what residents can and cannot do within their lots.

However, there are some restrictions on the by-law making power of an owners corporation.  In particular, a by-law cannot be harsh, unconscionable or oppressive.  Any by-law that is, is unenforceable.

In 2020, the NSW Court of Appeal handed down a ruling providing guidance on the circumstances in which a by-law will be harsh, unconscionable or oppressive.  In that case, the Court said that if a by-law prohibits an activity that is capable of being carried out in a manner that does not have a detrimental impact on the use and enjoyment of the lots and common property by residents, then the by-law will be harsh, unconscionable and oppressive.

In that case, the Court concluded that a by-law banning pets in a strata building was harsh because it was possible for residents to keep some types of pets in the building without having a detrimental impact on the amenity of other residents: see Cooper v SP 58068 [2020] NSWCA 250.

This begs the question:

Can a By-law Prohibit the Charging of E-bikes and E-scooters in a Strata Building?

The answer to that question is most likely “no”.  This is because it is possible to charge e-bikes and e-scooters without creating a fire risk or otherwise having a detrimental impact on the use and enjoyment of the lots and common property by other residents.  Indeed, any by-law that bans e-bikes and e-scooters is not likely to be enforceable.

So what are the options for any owners corporation that wants to reduce the fire risk created by the charging of e-bikes and e-scooters?  There is nothing wrong with an owners corporation introducing a by-law that restricts the right of residents to charge e-bikes and scooters.  For example, a by-law could require residents to apply to and obtain the consent of the owners corporation to charge e-bikes and e-scooters in the building.

Further, a by-law could introduce rules that must be obeyed by residents to minimize the fire safety risk created by the charging of e-scooters and e-bikes.  For instance, a by-law could stipulate that residents need to ensure that their e-bikes and e-scooters (including the lithium batteries that power them and the chargers for them) comply with the applicable Australian standards, that residents periodically monitor their e-bikes and e-scooters whilst they are being charged and residents otherwise take all reasonable steps to minimize a fire safety risk created by the charging of e-bikes and e-scooters.

Whilst it can be difficult to police by-laws that regulate the charging of e-bikes and e-scooters, doing so is not impossible and these by-laws at least give owners corporations the right to control the charging of e-bikes and e-scooters and to do something when residents disobey the by-law.

Can an E-bike and E-Scooter By-law Protect the Owners Corporation?

Further, these types of by-laws can provide the owners corporation with protection in the event that a resident disobeys the by-law and causes a fire when charging an e-bike or e-scooter.  For instance, a by-law could require the resident to indemnify the owners corporation against any property damage that is caused by such a fire and to cover the costs the owners corporation incurs repairing any damage caused by the fire.

Ultimately, the use of e-bikes and e-scooters is on the rise and this means that is now necessary for many owners corporations to grapple with the problem created by the charging of e-bikes and e-scooters.  Introducing an appropriately worded by-law is best practice and will provide an owners corporation with the greatest amount of protection to minimize the risk of a fire caused by the charging of an e-bike or e-scooter.

DO YOU NEED AN E-BIKE AND E-SCOOTER BY-LAW?

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Over the past few years there has been a huge push for people to buy EV vehicles of all kinds putting significant strain on strata buildings.

The increased number of electric vehicles now in strata blocks comes with a high risk of fire as residents charge their lithium-ion batteries throughout their buildings in their apartments, parking spaces, garages and other areas.

As people look for cheaper and quicker modes of transport e-bikes and e-scooters have become all the rage.

E-bikes and e-scooters have lithium-ion batteries and have sparked a series of fires in strata apartment buildings and based on statistics* pose a major threat as they continue to increase in popularity with a 16% increase in fire related incidences in 2023 and a 94% increase on the previous year.

The risk of e-bikes and e-scooters in strata blocks include:

1. Fire Hazards
2. Improper Charging Practices
3. Storage Challenges
4. Liability Concerns
5. Electricity Costs

How do strata schemes proactively manage the EV situation to reduce the risk of fire and other concerns?

By implementing a comprehensive by-law, covering the areas below, strata schemes can proactively manage e-bike and e-scooter hazards in strata.

1. Proper Charging Guidelines
2. Storage Solutions/Options
3. Registering E-vehicles with Regular Inspections
4. Resident Education Initiatives

Banning e-bikes and e-scooters would be extremely difficult and is unlikely to be enforceable given a lot of owners rely on this mode of transport for work.

An effective by-law will minimise the risk of e-bike and e-scooter fires and enhance the safety of residents and property within the community ensuring proper processes are in place to manage and reduce the risk.

* October 2023 ACCC Lithium-ion batteries and consumer product safety

CLICK HERE FOR AN E-BIKE / E-SCOOTER BY-LAW

Adrian Mueller I BCOM LLB FACCAL I Partner

Since 2002 Adrian has specialised almost exclusively in the area of strata law. His knowledge of, and experience in strata law is second to none. He is the youngest person to have been admitted as a Fellow of the ACSL, the peak body for strata lawyers in Australia. Profile I Linked

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.