A common property rights by-law is a special type of by-law that confers on the owner of a lot special privileges over common property such as exclusive use of part of common property.

While a by-law normally can be made, amended or repealed by a special resolution passed by an owners corporation’s general meeting, a common property rights by-law can only be made, amended or repealed with the prior written consent of the owner of the lot benefited by that by-law.

However, there is one exception to the need to obtain that consent.

So, what is that one exception Common Property Rights By-law

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

One of the big ticket items introduced as part of the new strata laws that commenced in November 2016 was strata renewal or collective sales. These laws allow a strata building to be sold or redeveloped with the approval of at least 75% of owners.

However, many stakeholders in the strata industry including strata managers have needed clarification and clearer guidance in regards to the strata renewal and collective sale process.

Indeed, the industry has been looking for more practical and specific guidance from regulatory bodies on the implementation of strata renewal reforms.

In late 2018 new guidelines and resources were published by the Office of the Registrar General and can be found on their website.

If you’re looking for some guidance it’s a great first step. The website includes information about:

• preparation of a strata renewal plan
• strata renewal information sheet
• support notice relating to a strata renewal plan and withdrawal

The website also confirms that strata managers should now be making all inquiries with the Office of the Registrar General in relation to strata renewal (or collective sales) and NSW Fair Trading is no longer able to assist.

The Office of the Registrar General website outlines 6 steps for the strata renewal process as follows:

1. Vote to opt into the process
2. Initiate the collective sale/renewal process
3. Form a strata renewal committee
4. Develop a strata renewal plan
5. Consider the plan
6. Approval of the plan

For more information visit Office of the Registrar General or for more detailed legal advice please contact us here or call 02 9562 1266, we’re happy to assist.

In a recent decision, NCAT upheld a security fob by-law made by an owners corporation.  This is a good decision as it demonstrates that appropriately worded security fob and access key by-laws can be made by owners corporations.

Introduction

Many strata buildings contain security systems which restrict access to and egress from the buildings.  These systems often include security access keys or fobs which are distributed to owners and occupiers to enable them to get into and out of the building.

Did you know owners corporations are able to implement appropriately worded security fob and access key by-laws?

So, what was included in this particular by-law Security Access, NCAT and By-laws

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

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.

Earlier this week, the NSW Government announced plans to make new laws to improve the building and construction industry.

The Government intends to introduce laws that will make builders liable for defects in a wider variety of circumstances.

One of the key announcements is the Government’s plan to impose on builders a duty of care to enable owners corporations of commercial and mixed use buildings to take action against builders for defects.

The Government also proposes to: require builders and designers to be registered; require designers and engineers to declare that building plans comply with the Building Code of Australia; and force builders to declare that buildings have been built according to their plans.

There is also a proposal to appoint a Building Commissioner to take over part of NSW Fair Trading’s role in the building and construction industry.

The Government’s announcement comes hard on the heels of the public outcry following the recent problems experienced by owners in Sydney’s Opal Tower.

The announcement acknowledges that there are significant problems in the building and construction industry and indicates that the Government proposes to adopt most of the key recommendations made in the Shergold Weir Report.

With a State election just around the corner, it remains to be seen if anything comes from the Government’s announcement. We will certainly watch on with interest.

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.

The strata legislation contains a number of requirements which must be met for any AGM.

These include requirements for the AGM agenda to contain certain motions and for the AGM notice to be accompanied by various documents.

So, what happens if these requirements are not met? Is the AGM invalid?

A recent decision of the Supreme Court provides helpful guidance on this issue – Supreme Court Strata AGM Guidance.

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.

The NSW Court of Appeal has handed down the most important decision concerning building defects in many years.

This decision means that builders and developers can be held liable for design defects.

This is a positive decision for owners corporations as it extends the scope of the statutory warranties concerning the quality of residential building work that is given by builders and developers to owners corporations under the home building legislation.

The case concerned defective residential building work that was undertaken to convert a warehouse complex originally built in 1928 into a mixed use strata development in Camperdown, Sydney.

So, what was the case about? Building Defects Case Important Decision

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