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Old lift
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Ziggy
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27/09/2017 - 3:01 pm
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At my recent AGM, the OC, which on this night was short of occupiers, voted against upgrading or repairing our 1983 year old lift. The SC consists of 7 members, only one of whom, me, lives in the block where the lift is housed.

The lift breaks down on a regular basis, is so noisy it keeps everyone awake at night, does not line up level with the floors, was made in Europe and is therefore increasingly hard to source spare parts.

Does the SC and/or the Strata Manager have an obligation to repair it? You may well know that this has been going on for three years now.

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dingo
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01/10/2017 - 10:08 pm
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Hi ziggy, one thing’s for sure the SM cannot decide to replace it as your SM cannot make any decisions of the owners corp under the ACT apart from what is agreed to in the contract. So it’s really up to the owners. The owners are obliged to maintain common property but that doesn’t necessarily mean they have to replace or upgrade the common property lift.
Do you know if the strata would have the funds to do this? This may be a key factor as to why they don’t want to, even though it may seem logical to replace it.

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Lady Penelope
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01/10/2017 - 11:32 pm
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Ziggy - Yes. The OC has an obligation to repair and maintain the lift.

Can you tell us the exact wording of the AGM Motion where the repairs of the lift were refused? Who raised the Motion? Was any explanatory material included with the Motion?

Industry best practice is for the OC to obtain an independent compliance and equipment assessment report every 5 years from a lift consultant. Has your OC had a report done recently on the lift? If not then you should raise this at your next committee meeting, and have the committee approve the obtaining of a report. The cost of a report should be well within the committee spending limit and should not need to be approved at a general meeting.

The findings and recommendations in the report will then be able to assist your OC in deciding what to do next.

As you are the only person on the SC who lives in the building you can request that you be designated as the person responsible to report to the lift service provider when defects occur such as: when the lift does not level correctly at floor level; lack of smoothness of operations; unusual behaviours such as stopping in mid flight; and noisy and violent door operations etc. These are all indicators of problems with the lift.

Current legislation states that a 10 Year Capital Works Fund Plan must be be place and must be amended and adjusted each year. CWFPs need to be approved annually at the AGM. Lift repair and replacement should be included in this Plan. Does your strata scheme have a CWFP and what does it say about lift repairs and/or replacement?

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JimmyT
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01/10/2017 - 11:50 pm
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dingo said
The owners are obliged to maintain common property but that doesn’t necessarily mean they have to replace or upgrade the common property lift.

It does if that's the only way to have a lift that's reliable and safe - at the very least they need to ascertain whether or not  they need to spend some money on repairs or refurbishment.

If you look at section 106 (below) it quite clearly states that the Owners Corp has a duty to maintain and repair common property and can only decide not to do so if that doesn't affect the safety or appearance of the common property.  I would think a lift that's noisy and unreliable has problems that are more than cosmetic.

It's also worth pointing them in the direction of paragraph 5 - if any owner loses money  due to a cranky old lift, (for instance through reduced sales price or lost rent) the Owners Corp could be liable.

Do you know if the strata would have the funds to do this? This may be a key factor as to why they don’t want to, even though it may seem logical to replace it.  

I'd bet my house on it being the lack of accumulated funds that makes them reluctant to spend money now.  This is a common result in a building where the owners have let things go to rack and ruin rather than spend a cent more than they have to on levies.  But it doesn't change their responsibility one iota. If the work needs to be done, then they need to find the money, by whatever means they can, be it special levies or a loan.

There seems to be a clear option here to pursue NCAT orders under section 232 to compel the Owners to fulfill their legal responsibilities.

106 DUTY OF OWNERS CORPORATION TO MAINTAIN AND REPAIR PROPERTY

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.

(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.

(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.

(8) This section does not affect any duty or right of the owners corporation under any other law.

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Lady Penelope
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02/10/2017 - 12:22 am
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Lift life expectancy is dependent on (1) age, (2) maintenance, and (3) usage.

Below is a small sample (from various sources) of the frequently made commentary on the life expectancy of a lift. I live in a 1970s building with an old lift. Some of the comments are sobering: 

How long elevator equipment should last
"A common rule of thumb in the industry is an elevator older than 20 years is a probable candidate for modernization." 

"Equipment from the 1970s generally had a life span of 25-30 years and lifts from the 60s even longer."

"The refurbishment of a robust lift may even give you 25-30 years’ service with the potential to refurbish again after that time."

"After 20 to 25 years of service elevators will reach the end of their cost effective lives.  During this period the building may experience decreasing performance along with a increase in service calls. These indicators are clear signs of potential problems and slipping reliability."

"Remember, it is better to plan for major works to the lift, rather than fire fight as components fail."

"An independent survey report is the most cost effective way to check on the current condition, future life span and potential expenditure over the short, medium or long term." 

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Ziggy
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04/10/2017 - 9:00 pm
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Thanks so much everyone for your help. Lady P, the motion I raised was this:

that the lift be upgraded or fully replaced without delay and a date for completion be confirmed.

And here's what we have on the lift so far:

  1. 11 feedback forms out of 19 units from owners/tenants complaining about the lift;
  2. A very recent quote from the original lift company to fully replace the lift for $210k, which will be fully compliant (as new car size will allow medical stretcher into the lift) and energy efficient;
  3. Email recommendations from a qualified lift consultant on recommendation of full lift replacement;
  4. Emails from two SC members saying that spare parts are increasingly hard to source and that current service and operation is not satisfactory and a major overhaul should be carried out as soon as is practical;
  5. Service dockets from our current lift maintenance company indicating the lift controller needs replacing;
  6. A recent report from a highly qualified lift expert recommending a particular company carry out upgrade works on the lift. This was tabled at our AGM in September.

What do you reckon?

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Lady Penelope
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05/10/2017 - 10:08 am
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Ziggy - This is my opinion ...... Your Motion was probably not specific enough and was probably not adequately professionally justified enough, perhaps that's why it failed.

These types of costly projects probably require a more measured approach. 

Your OC appears to have attempted a rather 'scatter gun' approach to the issue - would the lift function better with a new controlling mechanism or does the whole thing need replacing??? It all seems rather confusing. Have your owners been sufficiently informed enough of the best options to make this assessment?

Also, your OC has not appeared to have followed through in obtaining the sufficient number of quotes for any of the types of works - either refurbishment or replacement. 

Are you on the Committee? If you are then if I was you I would raise a Motion at the next Committee meeting to commission an independent survey of the lift  to be undertaken by a Lift Consultant.

Your Motion should specify that the lift be surveyed and a Report be written and received by the OC within 4 weeks.

Your Motion should specify that the Survey Report from the qualified Lift Consultant will do the following:

  • Assess the condition of the lift.
  • Assess the life span of the lift.
  • Outline the expected expenditure over the short, medium, and long term. NB: These costs will need to be factored into your scheme's 10 Year Capital Works Plan.
  • Analyse the lift requirements of the building.
  • Specify a replacement or refurbishment to give the maximum value allowed within the budgetary constraints of your strata scheme.
  • Suggest cost outlays for each option.
  • Provide specifications for the works.
  • Offer guidance on which course of action to take.
  • If recommending refurbishment over replacement will highlight key areas to address to ensure the lift does not fail through neglect.

When the specifications are clear in intent, the correct pricing from the lift contractors can be achieved, which results in savings for the residents in the long run. 

NB: An email recommendation from a lift consultant (as per (3) is probably not sufficient).

If a need for replacement or refurbishment is identified then the committee should adopt the recommendations in the Report, and recommend the implementation of the findings in the Report to the owners.

Then, send the report to all owners. Have an informal meeting of the owners to discuss the report if necessary. This will ensure that all owners are informed of the need for the works. The plans for the lift works need to be clearly identified and explained to the owners e.g. explaining why the works are to be undertaken and what they are planning to achieve, outlining the budget costs and timescales for the works.

The correct level of information to owners is critical at this stage to ensure the project is well received and can be accepted by all. Often major works cost substantial sums of money, which can be an emotive subject, but well produced evidence and plans can ensure the reason for the works is clearly demonstrated. 

In the meantime obtain at least 2 quotes based on the specifications outlined in the Report by the Lift Consultant. Then present the Motion with the quotes to a General Meeting as a Motion with Alternatives.

If the refurbishment or replacement fails at this point then you have a trigger to go to NCAT. Your owners would be failing to act on a problem that has been identified in a professional report. 

When your OC has approved one of the quotes then the work can begin. Try and negotiate a longer warranty period for the lift and/or parts if possible.

I would recommend employing the services of the independent lift consultant to oversee the work of the lift contractor if you are undertaking a full replacement to ensure all works are in accordance with expectations. 

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Ziggy
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05/10/2017 - 1:49 pm
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Thanks Lady P. We have two main problems to deal with. At the recent AGM, there were more non-ocupiers than owner/occupiers. The strata of 7 is made up of 5 members who don't live here and one who lives in one of the SC's unit. This unit does not reside in the section of our complex that has the lift. I am the only one on the SC who is affected by the lift.

Therefore they do not want, or care, to replace the lift, not because of money, but because they are trying to get a new air conditioning system to replace their old one, which is now housed in a residential unit that was formerly a commercial unit. Access to this has been only very recently raised by council.

So all the reports in the world, will not persuade them.

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05/10/2017 - 3:45 pm
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Ziggy said
... all the reports in the world, will not persuade them.  

As has been stated many times already - you don't need to convince the committee, you need to convince the Tribunal (and if what you say is true, you have all the evidence you need).

Apply for mediation, then move to orders at NCAT, even if it is just to compel the committee to seek an expert report and three quotes for the necessary repairs.

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Ziggy
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05/10/2017 - 5:41 pm
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Thanks Jimmy. I hear you. We have been to mediation but that was a disaster as the member representing the SC ridiculed, mimicked, interrupted and made various accusatory statement to me and the other owner he was also there.

So we already have the letter from Fair Trading recommending we go NCAT. My only question now is do we need a lawyer?

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JimmyT
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05/10/2017 - 6:20 pm
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It would certainly be worth talking to a lawyer, including asking them what your chances of recouping some of the costs are.  But make sure it's anexperienced strata lawyer.

Having said that, the tribunal encourages owners to appear themselves and leave lawyers out of it, where possible.  But I would say yes, especially if you can find one who has successfully run a case of this general nature.

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Ziggy
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05/10/2017 - 8:32 pm
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Thanks Jimmy. Am I allowed to say on this site who the lawyers are that have lined up? They featured in a story you ran... PS do you ever get sick of this job?

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JimmyT
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07/10/2017 - 3:00 pm
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Ziggy said
Thanks Jimmy. Am I allowed to say on this site who the lawyers are that have lined up? They featured in a story you ran... 

I don't see the point, really.  Wait till you get a positive result.

PS do you ever get sick of this job?  

I like to think I'm helping people who have nowhere else to turn.  And I get a buzz out of making a difference (like getting legislation changed).

But little things get to me - like people who write their whole issue out as a headline. 

At the other extreme, there are those who go into the section, say, on Common Property and create the headline "common property" or "problem" or "strata".  Yeah, we know - we need something specific.

Oh, and I get the irrits when people write "I complained to the strata ..." meaning what? Who?  It's forgivable in newbies - we've all been there - but I once kicked someone off the site who purported to be an expert but, despite several polite requests,  used that phrase for everyone from the strata committee to the building manager. Lazy and misleading!

I get irritated by people who go all "Rumpole of the Bailey" (sorry, that should be "Good Wife" for our younger readers), arguing their point interminably, choosing bits of the law that support their argument and ignoring the bits that don't.  Really, what's the point?

And I get a wee bit frustrated with people who say they want advice on what to do but what they really want is someone to fight their battles for them.  As a result, Flatchatters' good and well-researched advice goes unheeded.

But I have to say, I enjoy this most of the time although if it weren't for my loyal, smart and committed Stratagurus - Sir Humphrey, Lady Penelope and ScotlandX - I could not do this every day.

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Ziggy
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10/10/2017 - 5:43 pm
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I love your response Jimmy. Made me LOL. The advice from you and your stratagurus keeps me going. Where to, we'll see. THANKS everyone.

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Ziggy
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18/10/2017 - 8:47 pm
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Just an update. Our lift maintenance company has been in to look at the lift because it is bypassing ground floor and going to the basement. Then it goes back to ground floor. It often gets “lost” (who knows where) and does not land level with the floor; well over the acceptable level. All a safety issue. The maintenance guy said that no-one is going to replace/upgrade the lift until ”someone has an accident”.

A motion that the lift be replaced at a recent AGM was defeated. Did this defeat need to be a special resolution? Who is the first to be blamed if there is an accident? The OC or the lift company? 

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JimmyT
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18/10/2017 - 11:41 pm
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It's quite clear that no one is going to do anything until they are compelled to.  The lift engineer is probably not a strata law expert.  The processes required to compel the owners corp to fix the lift have been explained already. You have already had mediation so now go to NCAT for orders.

You don't need a lawyer to proceed but you should probably talk to one.  There really isn't much more to be said. Although, perhaps you should think about a strata loan to cover the costs.

By the way, if the inevitable accident happens, the whole owners corp, you included, will be culpable.  I wonder if your insurance covers you and your neighbours for willful negligence.  

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Ziggy
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20/10/2017 - 12:47 pm
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Goodnees me! I thought that the SC and the OC were automatically covered in an event such as an accident.

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scotlandx
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20/10/2017 - 6:12 pm
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If the OC is given advice that an item of common property is dangerous, and they actively refuse to rectify it, then the likelihood of insurance agreeing to pay would be low.  An insurance contract is of a particular nature, both parties have to act in good faith.

Ziggy if an accident happened the OC would be to blame, not the lift company.  What is the lift company supposed to do?

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Ziggy
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22/10/2017 - 4:42 pm
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Thanks Scottie. A few years ago, the lift company recommended that a number of issues with the lift be fixed. So, as we all have that in writing, it would be hard to blame them. 

Back to my earlier question above, if a motion that the lift be replaced at a recent AGM was defeated, did this defeat need to be a special resolution? Regardless of the defeat, is the OC still obligated to fix a dangerous, noisy unreliable lift?

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JimmyT
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22/10/2017 - 6:26 pm
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Ziggy said
Regardless of the defeat, is the OC still obligated to fix a dangerous, noisy unreliable lift?  

We seem to be going round in circles on this and it really could not be simpler.

Under section 106 of the Act (below), the owners corporation has a duty to "properly maintain and keep in a state of good and serviceable repair the common property ... "

That duty remains regardless of whether it has the funds or inclination to do so.

The OC can decide by special resolution (only) not to not to do so provided "it is inappropriate to maintain, renew, replace or repair the property" AND "its decision will not affect the safety of any building, structure or common property in the strata scheme."

You have enough ammunition right there to get orders from NCAT under section 106.  You have already had the mediation.  I think it's time to get on with it. The decision of the owners corp to do nothing has no standing in this regard. 

The law was designed precisely for situations such as yours. I suggest you use it.  Costs etc are not an issue at this stage so don't even go there.  The simple fact remains that the Owners can decide to do nothing if they want, but that doesn't alter their statutory obligations.

106   Duty of owners corporation to maintain and repair property

(1)  An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3)  This section does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

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