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.

Must strata lot owners pay, as part of their levies, maintenance of the common property they do not use?

Are all strata owners responsible for paying for the maintenance of every part of the common property even if some owners cannot or do not use part of the common areas?

Is it possible for an owners corporation to raise a differential contribution that is levied on some but not all owners or is levied in shares that are not proportional to the unit entitlements of the lots?

Here are some typical examples where owners often query if they should pay for maintenance of these areas:

• A strata scheme that contains multiple stages – should they pay for stage 2 if they’re in stage 1?
• The owner of a ground floor lot who does not use a lift servicing the upper levels of the building
• The owner who does not use recreational facilities such as a swimming pool, gym or tennis court

Are these exceptions or are common areas in strata residential blocks treated as a whole?

Read this paper to find out the true position – Common Property Use and Differential Levies in Strata Blocks

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

Illegally parked vehicles taking up visitor parking spaces in strata blocks are becoming more and more of an issue as the Sydney community grows and creates more demand for parking. 

It’s reported that residents and non-residents are taking up visitor car parking with their extra cars, strangers dumping unregistered vehicles and apartments near major centres or transport hubs being targeted by commuters, all ignoring the rules and causing grief across Sydney’s high-rise strata communities.

So, what can be done?

Are owners corporations powerless to remove illegally parked vehicles from visitor parking spaces in strata blocks? A recent article in SMH Domain suggests this is the case.

But what is the true position? Download to find out what can be done about Illegally Parked Vehicles in Strata. 

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

It is anticipated that mid 2018 changes to the NSW property licensing laws are planned to take effect, subject to NSW parliament approval, which means changes for some strata managers.

The new NSW property licensing laws have been designed to increase consumer protection measures and will include the improvement of entry requirements for the real estate and property industry, including strata managers.

The main reasons for these changes are to:

• Provide a clearer career progression for real estate and property industry professionals
• Avoid start-up companies by individuals with no experience
• Reduce the risk of misappropriation of trust funds

Strata managers who currently hold a licence will still hold a licence under the new legislation.

Post introduction of the new laws, to obtain a licence in NSW will require strata managers to have 12 months’ experience working in strata. Currently, there is no strata experience required.

Continuing Professional Development (CPD) will also change to ‘hourly’ rather than a ‘points’ based system.

In summary, NSW property owners can rely on the fact that every strata manager in NSW will have a strata property manager licence within four years of the new legislation coming into force.

For further information on these proposed changes please refer to NSW Fair Trading.

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.

During times when owners suffer financial difficulty, owners corporation can often find themselves out of pocket with overdue and unpaid strata levies. This can be a huge concern to strata communities, especially if an owner declares bankruptcy and they face the possibility of missing out on payment of any overdue strata levies or recovery costs.

So when can an owner who does not pay strata levies on time be made bankrupt? And what happens once an owner is bankrupted?

Bankruptcy is a legal process that can occur when an individual cannot pay their debts as and when they fall due.  In Australia bankruptcy is governed by the Bankruptcy Act 1966 (Cth) and is regulated by the Australian Financial Security Authority (AFSA).

Once a person becomes bankrupt, control is given up of their finances and assets to a Trustee in exchange for protection from legal action being taken against the person by an entity to which they owe money.

So, what happens when a lot owner is unable to pay their strata levies? Can they be bankrupted?

Bankrupting an Owner

• A bankruptcy notice can be issued in the event that an owner owes strata levies, is sued by the owners corporation, and judgment is entered against the owner for more than $5,000.
• Usually, we will exhaust all avenues for recovery of outstanding strata levies before seeking the strata manager/owners corporation’s instructions to bankrupt the owner.
• However, if the judgment debt is significantly higher than $5,000, the strata manager/owners corporation would normally provide an instruction for us to move to bankrupt the owner immediately after entry of judgment against them.
• Upon receipt of instructions, we perform a bankruptcy search to ensure the owner has not already been declared a bankrupt.
• If the owner is not already bankrupt, we draft and file a bankruptcy notice with the Australian Financial Security Authority – the current filing fee is $470.
• Once filed, we then serve the bankruptcy notice on the owner.
• Then, the owner has 21 days to make payment of the amount claimed in the bankruptcy notice.
• If the amount claimed remains unpaid after 21 days, we seek the strata manager/owners corporation’s instructions to issue a creditor’s petition to commence court proceedings to make the owner bankrupt.
• If the strata manager/owners corporation instructs us to proceed, we commence bankruptcy proceedings in the Federal Circuit Court against the owner.
• If the Court makes an order for the owner to be declared a bankrupt, a Trustee is appointed to the owner’s estate.

What happens once an owner is bankrupted?

• The Trustee obtains information about the owner’s financial circumstances including any assets owned by the owner and any liabilities of the owner.
• After completing his or her investigations, the Trustee will normally move to sell the owner’s assets to pay the liabilities owed by the owner.
• This often involves the Trustee obtaining possession of the owner’s strata lot and selling the lot.
• Once the lot is sold, the owners corporation is normally paid the overdue levies, interest and recovery costs.

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

The Supreme Court has rejected a proposal by an owners corporation to upgrade its common property in a way that would have impeded access to an owner’s car space.

The building is a residential strata scheme in inner Sydney containing 80 residential apartments, 27 car space lots and common property.

A particular car space, not attached to any apartment lot within the building, was purchased as an investment.

The owners corporation of the building proposed to change the use of and upgrade an area of common property adjacent to this car space. This upgrade, if implemented, would have impeded the ability of the owner or tenant to drive a standard size vehicle into and out of car space.

What are the broader implications of this case? Read our case paper to find out Common Property and Supreme Court

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

13 March 2018, was the deadline for every owners corporation in NSW to have installed compliant window safety devices on applicable windows throughout their strata schemes.

Recently, NSW Fair Trading updated information on their website concerning window safety devices for high rise strata blocks.

However, it’s important to note that the information uploaded is incorrect on the NSW Fair Trading website.

This is resulting in some incorrect conclusions that it is possible for an owners corporation to relieve itself from the responsibility for installing window safety devices.

As a result of the incorrect window safety device information on the NSW Fair Trading website it has raised a number of questions:

1. Can the installation of window safety devices be delegated to each individual lot owner?
2. Who is responsible for the maintaining, repairing and replacing window safety lock devices after they have been installed?
3. Can a window lock by-law be put in place to relieve the owners corporation of responsibility?
4. Why is the NSW Fair Trading window safety device information incorrect?

What is the correct information for window safety devices? Our paper will explain – Window Safety Devices and By-laws.

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.