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A Pile of Garbage.
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Perplexed
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04/08/2017 - 1:53 pm
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We live in an inner city mixed commercial and residential apartment complex.  The Owners Corporation is controlled and run by the commercial owners, and has been for many years.

Since 2002 residential owners have been denied the regular Sydney Council garbage pick up, (charged at around $275 pa. included in Council rate payments), and are made to contribute to $100,000+ for commercial garbage service, dominated by commercial waste. Commercial operators and residents use a communal skip, in an open loading dock, which often is filled with refuse from neighbouring flats and businesses.  Residents have contacted Council in an effort to have the situation rectified but the OC has deferred the topic indefinitely, saying there is no room to provide separate garbage areas for commercial and residential owners.  Residents believe it would be a simple matter to divide the exisiting garbage area in half ...

We have no separate electricity metres in apartments and are therefore forced to contribute to a combined electricity bill - which is enormous.  As there is air-conditioning in each apartment, but no heating in winter, and the building is often full of short term rentals, this system is incredibly expensive and impossible to contain or monitor.  Short term renters, no doubt, are not concerned about leaving the aircon on 24hrs a day.  It's an old system. That's not cheap!  Not to mention heating costs in winter...

We have over 70 residential apartments and yet there is no intercom system for guest entry.  Reception is open 12 hours on weekdays and 4 hrs on weekends, but not always attended during those hours.  To allow entry to guests when reception is unattended they need to telephone the resident and then residents have to take the lift to the foyer and swipe them into the elevator and/or the building itself.

Members of the OC have taken over common property. In one instance not only did the commercial owner construct a massive shed at the front of the building, over a long weekend, last year, but the fees for engineers and other reports (around $8000) were paid by the OC from our strata fees.

No matter what residents say, request, or recommend to reduce overheads and improve our quality of life, it is rejected by the OC - well before it even goes to a meeting.

So I guess flat-chatters would say "Move out!"  But our flats are lovely little north facing apartments in a beautiful part of town so, for me, personally, moving is not an option.

What can we do?

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JimmyT
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04/08/2017 - 2:29 pm
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I would say this building is quite clearly being run for the benefit of the commercial enterprise, to the detriment of the residential owners.

The first thing I would do is find a reputable strata manager and ask them if they would be prepared to be nominated as statutory appointment. Then, with them, compile a list of all that's wrong with the building and your documented efforts to improve conditons that have been thwarted.

In the meantime, it might be worth creating a 'trigger event', such as presenting a list of demands that you know will be rejected, such as:

  • demand that they install separate meters for the individual units (or, at least, meters for power and water separate from the commercial lots)
  • removing the illegally constructed shed
  • installing proper bins with full recycling facilities
  • doing something about illegal short-stay letting
  • installing proper intercom entry phones
  • redistribution of costs so that residents and residential owners aren't subsidising commercial interests
  • Anything else you can think of that would be a reasonable request.  

Make sure that you can prove the date on which the committee received the demands and make sure there is a notice that if these matters are not progressed immediately, you plan to take further action via Fair Trading and NCAT.

After two months have passed (or sooner if they refuse) you can start proceedings via mediation at Fair Trading leading to seeking orders at NCAT.

Or, and this would be my preference, take your friendly strata manager to NCAT and ask that they be made statutory appointees until all the issues were resolved.

If this was successful, the Owners Corp and strata committee would be sacked and all decisions would be made by your statutory appointee.

I would also at this stage be talking to an experienced strata lawyer about all your options.  Just an observation, but it sounds like theis whole scheme was set up so that the residential lots would subsidise the commercial ones.  If you can show that's the case, you should be able to get the Tribunal onside.  

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Sir Humphrey
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04/08/2017 - 4:29 pm
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JimmyT said
...it sounds like theis whole scheme was set up so that the residential lots would subsidise the commercial ones.  If you can show that's the case, you should be able to get the Tribunal onside.    

A strata manager and/or lawyer might also be able to advise on a fairer and more reasonable distribution of unit entitlements so that a higher proportion of the strata levies are paid by the commercial enterprise appropriate to the costs they impose on the OC. What percentage of your insurance, electricity, water etc is for that lot?

Better still, almost certainly harder, is there some way to get a divorce? Could the owners corporation be split into two entities, each able to run its own affairs and pay only the bills required for the residential or commercial portions? 

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Perplexed
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05/08/2017 - 9:48 am
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That sounds like a plan!  But we have been searching for a strata manager for some time, now.  And we can't find anyone to take us on.  It appears this building is quite notorious for its ingrained dysfunctionism... How do you suggest we go about finding someone brave enough to assist?

Writing a list of demands is easy.  We have quite a good start with ones already raised at general meetings that have been rejected or deferred. That disheartened us from trying again ... But we will ad the other aggravating issues and take another hot. No worries, at all, if it give u a new start.

As for legal assistance. Again, it is a very limited talent pool and extremely expensive to lodge a section 162.  We started down that road last year but two of the five residents who agreed to chip in for the fees reneged on their promise and now, I fear, we have lost that legal firm.  Very sad, because they seemed good.

Many of the owners in the building live remotely, in the country and other cities, so they don't see the state the building is in.  And tenants feel disempowed and not at all inclined to fund a legal battle.  It's a bit tricky.  The majority of the apartment are studios with low income owners.  Many retirees. They struggle to cover the outrageous strata levies with rental income received, and are afraid of incurring further debt.  And, of course, there's no legal aid available for this type of action - no matter how cut and dried the facts.

So friendly strata manager seems to be the key. Could you please suggest where we might start our search?

We thank you, Jimmy, for yr kind assistance.

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Perplexed
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05/08/2017 - 10:11 am
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Oh, Sir Humphrey, a divorce would be marvellous! I fear we should never have married in the first place ... but as a love child of the unholy amalgamation, I see that settlement would be extremely difficult.  The commercial owners have cherry picked nearly all the outside areas for exclusive usage and depleted funds from residential maintenance to constructing their exclusive use structures.  If we divorce now, the residential units would be left with possibly hundreds of thouands of dollars in overdue maintenance and capital works - and the commercial operators would just waltz away singing.

We were quoted $10,000 for an entitlement rethink.  The commercials use our strata fund for legal actions against residents, augmenting their edifices, and maintaining the status quo.  Residents have no such funds available.

And in the end we would still have a garbage room that has to be seen to be believed, a massive carbon footprint from our polluting air con system and 'free' power, and a building that looks like a complete shambles.

But we will try any ideas we can to turn the block around... so thank you for your time and kind thoughts.

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JimmyT
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05/08/2017 - 5:04 pm
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Cases at NCAT are supposed to be no to lo-cost with legal representation the exception rather than the rule (although it helps to have a strata lawyer prepare your case).

Regarding a strata manager, if you allow your eyes to drift to the top of this page you will find an ad for our sponsors who have just been voted strata managers of the year for the second time in a row.  Call them and tell them you came from this website.

Your commercial neighbours sound like they have become so sure of their immunity from challenge that they have left themselves wide open.

meanwhile, be smart about this. Don't go after the committee, go after the individual lot owners who have taken over common property without proper permission or compensation.  They can't use your funds against you becasue you aren't going after the Owners Corp.

Even if they had concocted votes at AGMs, there is a principle called "fraud against the minority" that says they have to pay for any common property they take, regardless of what bogus votes they may have passed.

Get that rolling and then go for statutory appointment of a strata manager.

And of course there is no legal aid - but you can be awarded costs when there is clear evidence that the other party has acted illegally or corruptly.

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Perplexed
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07/08/2017 - 11:35 am
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Tku, Jimmy!

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Puddn
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08/08/2017 - 10:25 am
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I agree with Jimmy - best go after the individual lot owners.

As for a divorce - we have that at our scheme, but 'divorce' has a different set of problems that could fill up this forum in a heartbeat.

In our case, residents (245 lots), commercial (3 lots) are in constant battle  - and there is always a stalemate as each entity has an equal vote (50-50).

Yes - the work of developers who (I believe) instil a 'right of entitlement' in most mixed developments.

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Perplexed
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08/08/2017 - 11:54 am
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Tku, Puddn!

You are on the money with developers 'right of entitlement'.  In our building they even have written into the by-laws that none of the residents are allowed to complain about any of their commercial activities.

When i complained, as anyone would under the circumstances, they issued notices to say I had to leave the property because it wasn't residential.  That was a very scary couple of months!  So off we trundled to NCAT to try to sort the matter out and while a decision was still pending the corporates issued the entire residential building with notices to say they had to leave. It was craziness!

Luckily, in that instance, NCAT decided against throwing us all onto the street and the threat was withdrawn. NCAT also ruled that we could complain - as you would expect.  So it was a good result, but a costly and long running process, which doesn't leave us homeless, but also doesn't solve the core problem.  And the by-laws remain unchanged, by commercial vote.

The next step in liberating the building isn't going to be a stroll in the park, either.  Even though it's all over the news that recycling is ending up in landfill, I still believe it is vitally important that we each do the best we can for the planet, and each other.  We need to recycle, conserve energy, use our community property to mingle with our neighbours and become a real community.  With guidance from the Flat-Chatters that's what we aim to bring about in our little dysfunctional part of paradise.

Peace, love and happiness, in the neighbourhood.

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