As winter fast approaches lot owners and tenants ‘cosy up’ their apartment environments with heat creating condensation (moisture) and reduced ventilation – a damp environment that mould loves to thrive in.

Rain during the winter months can also contribute to the increased mould growth in strata buildings and may cause dangerous health issues for owners and tenants as they’re more likely to stay indoors.

Who is responsible for mould in a strata property?

It depends on the location of the mould, and what initially caused the mould to develop. Sounds simple, but the challenge is to work out who organises and pays for the problem to be fixed.

In this article we look at:

1. What is mould?
2. What are the harmful effects mould can have on your health?
3. What are the causes of mould in strata living?
4. Who pays for the mould to be fixed in strata living?

1. What is mould?

Mould is a type of fungi that produces tiny spores which settle on indoor and outdoor surfaces. When the mould spores land on a damp or wet spot, they need a certain temperature to thrive and survive, they then begin to grow and digest the surface where they’ve landed.

Mould can destroy building materials, furnishings and cause serious health problems to people.

2. Is Mould Harmful to your Health?

Airborne mould spores are commonly found in both indoor and outdoor environments and have the potential to cause health problems as they can easily be inhaled.

Inhaling mould spores can have harmful effects on health in children and the elderly, asthmatics, and people with compromised immune systems. It can cause throat, eye and nose irritations, breathing problems and allergic reactions. Some mould can even have more serious health effects and cause chronic, obstructive, or allergic lung diseases.

Mould can also destroy clothing and household items such as mattresses and other furniture which can also cause health issues.

3. What are the Causes of Mould in Strata Apartments?

In strata apartments, mould typically grows indoor in wet or moist areas lacking adequate ventilation, including walls, wallpaper, ceilings, bathroom tiles, carpets (especially with jute backing) and insulation material such as cardboard and wood.

Some common mould problems in strata apartments include:

• Lack of adequate waterproofing allowing water to leak inside an apartment
• Burst pipes or water leaks coming from an apartment above
• Condensation in winter on walls/windows from temperature differences between heated interiors and cold exteriors
• High levels of humidity in summer and temperature differences of cold interiors and heated exteriors
• Condensation from hot showers causing mould on bathroom walls and ceilings, especially if there is no exhaust fan and/or ventilation
• Windows closed all day with lack of adequate air flow
• Strata blocks that are in shade all day and receive no or little sun

4. Who is Responsible for Mould in Strata?

Property Managers and Landlords

In a rental apartment situation, the  landlord is normally responsible for fixing the mould problem as the landlord is responsible for ensuring their tenant a healthy, mould-free environment.

However, if the landlord can show the mould is the result of the tenant’s inactions such as not using exhaust fans or not opening windows/doors for airflow, the tenant may be liable to compensate the landlord for damage.

Strata Managers and Owners Corporations

In strata title properties the person responsible will depend on where the mould is located and what is causing it, which can sometimes be challenging.

Generally, the apartment owner is responsible for removing the mould inside the apartment. However, if there is a defect in the common property that is the cause of the mould, such as a leaking common property pipe, the owners corporation would be responsible for fixing that defect.

Common Property
Common property boundaries of an apartment are generally defined by the floor surface and boundary walls. If mould is located outside of these boundaries the owners corporation is responsible for repairs and mould remediation costs. If the cause of the mould is within these boundaries the lot owner is responsible for repairs and costs.

Strata mould problems are often challenging to solve. In these more challenging cases it is often a good idea to engage with a strata lawyer to help resolve the issue,  and to work out who is responsible for fixing the problem, especially if it involves health issues.

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

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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.

‘Smoke Drift’ in Strata Blocks

In Australia, most apartment blocks, old or new have banned smoking in common areas such as hallways, common living spaces, outdoor communal areas and more.

In some states, strata committees have completely banned smoking in all areas of apartments by introducing smoke free by-laws.

And… fast becoming a reality in strata living is a total ban with smoke free apartment blocks.

In recent times second hand smoke has become a major health concern in Strata blocks with organisations such as the Cancer Council getting behind the move.

With this fight against smoke drift and new precedents being set landlords, owners corporations and strata managers need to carefully consider what kind of smoking by-laws will be implemented in their strata blocks. Here we outline three options:

1. Unrestricted Smoking By-law

Many older strata blocks may have unrestricted smoking as a default by-law unaware that they are leaving themselves in a vulnerable position. They should consider reviewing their by-laws to keep up with the latest health concerns and legalities.

2. Limited Smoking By-law

A ‘middle ground’ by-law may limit lot owners and tenants to only smoking within their apartment but not in common areas. However, there have been a number of cases where fines of up to $11,000 have been issued due to second hand smoke creating health issues.

3. Complete Smoking Ban By-law

Only some states currently allow a complete smoking ban. A complete ban includes all areas of apartment blocks, including individual apartments, balconies and common areas.

Ensure Your ‘Smoke Drift’ By-laws are Up to Date

If smoking is a problem in a strata building, the owners corporation should make a by-law prohibiting smoking. This type of by-law is simple to prepare and enforce. Orders can be obtained to stop residents smoking and put an end to second hand smoke drift. It’s also important to note that smoke drift can also be caused by BBQ’s.

Support for smoke-free multiunit living is high particularly among people living with children. It is only a matter of time before most strata buildings go smoke free.

DO YOU NEED YOUR ‘SMOKE DRIFT’ BY-LAW CHECKED?

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

Is your landlord planning to do strata renovations – cosmetic, minor or major?

Did you know in NSW there are different rules that your landlords must follow for the 3 types of renovations when renovating their strata apartment?

1. Cosmetic Work

Landlords can generally do cosmetic work without approval from the owners corporation however this will depend on the types of renovation by-laws in place. Be sure to check what by-laws apply in their strata scheme as the owners corporation could have changed what is classified as cosmetic work or have a renovation by-law requiring approval to do cosmetic work.

2. Minor Renovations

If your landlord is planning to carry out minor renovations, then approval from the owners corporation is required.

Project plans, a timeline and details of all qualified trades or contractors who will carry out the minor renovations are also required to be submitted for approval. All lot owners will then vote on the project at an Annual General Meeting or Extraordinary General Meeting – the landlord will need over 50 percent in favour for the project to proceed.

3. Major Renovations

For major renovations you must obtain approval by a special resolution (a 75% majority) at a meeting of the owners corporation, and a special renovation by-law is also required to authorise the work.

Again, project plans, a timeline and details of all qualified trades or contractors who will carry out the major renovations will need to be also provided to seek approval.

Does Your Landlord Require a Renovation By-law?

We have significant expertise developing renovation by-laws for strata, company, and community living.

• We have been developing renovation by-laws for 40+ years.
• We know whether you will require a by-law for renovations for owners corporation approval.
• We guarantee within 7 days you will receive the right renovation by-law.
• We also understand that you ‘may’ need your renovation by-law urgently for an upcoming strata meeting – just let us know, we will make it happen.

GET THE RIGHT RENOVATION BY-LAW HERE!

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Do you require a renovation by-law or any other strata or property legal advice? Contact us here now, we’re happy to help.

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Are you aware of the traps in collective sales and the potential problem with option agreements?

What are Option Agreements?

Option agreements are frequently used as a mechanism to facilitate collective sales of lots in a strata scheme.  Such option agreements (commonly called “Options”) provide a number of helpful mechanisms and tools to provide a degree of flexibility.

The Traps of Collective Sales Option Agreements

A recent decision of the Supreme Court of NSW has demonstrated that there can be traps for owners of strata lots who are using Options as part of a collective sale process.

The case provides helpful reminders about how options should be used in a collective sale process, and the matters to be aware of if lot owners are going to be properly protected in that process.

What Should You be Aware of?

Here we discuss option agreements and what to be aware of with strata block collective sales Traps in Strata Block Collective Sales

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

Deadline Reminder By-law Registrations

From 11 October 2021 all ‘By-laws’ and ‘Changes of Address’ Must be Registered Electronically in NSW.

Strata managers and owners corporations can no longer lodge consolidated by-laws and changes of address over the counter. All consolidated by-laws and changes of address will need to be registered electronically through an ELNO such as PEXA.

Did you know the JS Mueller & Co Lawyers team was one of the first firms to register by-laws electronically?  We now have over 12 months experience completing electronic registrations.

If you need any assistance with electronic registrations our experienced team at JS Mueller & Co Lawyers is here to help you. Contact us now.

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

Pets by-law expert, Adrian Mueller, Strata Lawyer talks pets with LookUpStrata in this recent webinar, covering the recent ‘Cooper’ case:

1. How will you respond to the recent decision of the Court of Appeal in the Cooper case which says that a by-law prohibiting pets is invalid?
2. Will you wait for the dust to settle before deciding what you will do?
3. Or will you act now and change any by-law that prohibits pets?

As well as delving into this recent case and what it means for you, Adrian has also covered Q&A’s specifically focused on the topic of pets in NSW strata buildings.

NEED A PETS BY-LAW REVIEW CLICK HERE NOW!

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

The Strata Schemes Management Amendment (Sustainability Infrastructure) Bill 2021 is expected to commence in mid-2021.

Overview of New Laws

The key features of the Bill are as follows:

1. An owners corporation will be able to authorise the installation of sustainability infrastructure (such as solar panels) on common property by passing an ordinary resolution.

2. Any decision by an owners corporation that would unreasonably prohibit the keeping of an animal on a lot will have no force or effect.

3. It will be possible for a by-law to prohibit the keeping of an animal (such as a dangerous dog) on a lot if that prohibition is reasonable.

4. An owners corporation will need to keep voting records regarding a secret ballot confidential unless directed to make those records available for inspection by a court or NCAT.

5. NCAT will need to provide a copy of any strata application that is lodged by any person to the owners corporation of the strata scheme concerned.

6. An owners corporation will need to serve a copy of any NCAT application it receives on each owner instead of just placing a copy of the application on the noticeboard.

7. NCAT will have the power to require a person to pay a penalty of up to $5,500.00 for breaching an order made by NCAT.

8. A person who owns more than one lot in a strata scheme will be able to appoint a single proxy in respect of all of the lots (to prevent the limitation on the number of proxies a person can hold stopping this from occurring).

9. A proxy appointment form for a meeting will still be valid even if the meeting is adjourned to a later date.

Conclusion

These new laws will make it easier for owners corporations and owners to install solar panels and implement other “green” initiatives, clarify the validity of “no pets” by-laws and close a loop hole in the strata legislation that prevented NCAT imposing penalties on people who breach orders.

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

How should your owners corporation deal with a request from a lot owner to attend at Mediation?

Mediation is an important part of the dispute resolution processes for strata schemes pursuant to the Strata Schemes Management Act 2015.

A recent decision of the Appeal Panel of NCAT  has underlined the need for agreements reached at Mediation to be sufficiently certain if they are to be capable of being enforced under the strata legislation.

This in turn raises questions about how owners corporations should approach Mediation, particularly the most common form of Mediation for strata matters, under the auspices of Fair Trading NSW.

In this recent case we explain how getting the wrong advice can stop you from enforcement.

Where ever possible an owners corporation should take the following steps Mediation and the Right Advice.

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

Is your owners corporation likely to be subject to claims that it is discriminating against disabled persons?

A recent decision of the Administrative and Equal Opportunity Division of NCAT has determined that an owners corporation “provides services” to owners and occupiers within a strata scheme. As a result, owners corporations are potentially subject to the provisions of the Anti Discrimination Act 1977, in relation to the way that owners corporations manage and control common property and the finances of the strata scheme.

This raises the prospect that owners corporations may face increasing burdens to manage common property with the needs of disabled persons in mind.

Potential Implications for Discrimination in Strata Schemes

Potentially, this decision widens the possibility that claims under the Anti Discrimination Act can be brought against owners corporations for issues such as:

• providing alternatives to stairs
• installation of lifts
• installation of other lifting mechanisms
• broadening of doorways to enable wheelchair access
• providing non-slip devices
• providing access ramps
• accessibility of garbage facilities
• accessibility of recreational facilities

Owners corporations would be well advised to take great care, and even to seek advice, when issues of discrimination are raised by lot owners and residents .

Read the full article here: Owners Corporation and Discrimination Legislation.

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.

Warwick van Ede, NSW Law Society Accredited Specialist in property law, and senior lawyer at JS Mueller & Co Lawyers, has been appointed a member of the Property Law Committee of the Law Society of NSW for 2021 due to his extensive expertise in property and strata law.

Have Your Say Strata!

For all NSW strata legal including by-laws, building defect and levy collection advice contact us here or call 02 9562 1266, we’re happy to assist.