(NB: There are several readers letters at the end of this article)
It seems a great pity that, when the Office of Fair Trading doing its best to provide a service that reflects the importance of strata to this city and state, the branch of consumer complaints that can actually make a difference is stuck back in the 1950s.
This column is getting more emails than ever, these days, about how rubbish the Consumer Trader and Tenancy Tribunal is when it comes to strata matters.
Take the woman who wrote to me last week about her small block where members of the executive committee blithely break by-laws forbidding the removal of floor coverings.
They enrich their own apartments to the detriment of their downstairs neighbours who either have to listen to them clomping about on their illegal floors or lose money on their apartments when they come to sell.
But wait, here comes the CTTT which has the power to appoint a strata manager to either run the whole building or just deal with one specific problem. And this couldn’t be simpler – there’s the by-law, there’s the breach. Hurrah! They’ll fix ‘em.
Except they decline to do so, for no apparent reason. For the long-suffering owner, it’s more like send in the clowns than here comes the cavalry.
My theory, for what it’s worth, is that the CTTT is so bogged down in its traditional role of protecting individual consumers against businesses and corporations that many of its members can’t get their heads around the idea that in strata it’s usually the individual who is the problem and the corporation – their neighbours – who are the victims.
These are the twits who allowed a woman to build a shed right up to the edge of her parking space, meaning her neighbor couldn’t open his car door (an issue, believe it or not, that’s still unresolved after three years). These are the geniuses who recently refused to fine a persistent by-law breaker for a second time for the same offence – as the law clearly allows them to do – because that would be “double jeopardy”.
While the rest of us are trying to create homes and communities, we apparently have to accept the “rights” of selfish individuals to make our lives a misery.
Where does the CTTT get these people? All over NSW, villages are missing their idiots.
It has been opportune that I read your 28-29 June SMH article today re Tribunal Twits.
My wife and I also had an adverse experience with the CTTT after we were forced to apply for an Interim Order (IO) and an application for Adjudication against our Owners Corporation (OC) after they signed a building contract for $730K with an unlicenced and uninsured builder who did not even tender for the work + did not have Council approval.
In summary we were initially successful with the Interim Order by having the CTTT and the local council issue a stop work order against the OC & the builder. However the Strata Manager (whom we believe was in on ‘the deal’) as secretary of & on behalf of the OC appealed the IO.
The appeal was meant to be hear in mid Dec 07 but owing to delay in obtaining a s313 certificate from the NSW-OFT we were forced to adjourn the hearing until after the CTTT’s Christmas & New Year’s holiday break. Then the Chairperson decided to go overseas for two months which delayed the hearing further. At the hearing the solicitor for the OC, knowing that the OC were in the wrong, then argued the matter was out of time (3 months) -s107 of the Strata Schemes Management Act (SSMA). In essence the matter was out of time primarily owing to the CTTT’s own Christmas & New Year’s holiday break plus the Chairpersons overseas trip.
The application for Adjudication was dismissed on the basis that we did not go to mediation before hand.
We attempted to apply for mediation but was told by the secretary/receptionist at the CTTT when we took the application for mediation in for submission, that mediation was not necessary.
The above is only the tip of the ‘iceberg’.
Just had to let you know how much I and every one in the office enjoyed your article re Tenancy Tribunal very accurate and on the money ( I sincerely hope you never have to front these people). The last time I had to appear in the Tribunal (Retribution Chamber more like it) the chair was so rude that in any other place of law they would not conduct themselves in such an appalling manner. They seem to be totally disinterested in any thing other than if the correct form has been filled out and have you sorted out your problem. Oh to have a better system or different people with a fair approach to situations.
I am impressed by your factual approach in strata matters. Would you be able to enlighten a majority of over 95% of owners of a mixed block (commercial and residential) who want to claim back the access to the common property with a magnificent view of the harbour bridge, opera house and more. It is important to point out that an artificial wall (very unattractive) was built after the by-law passed to separate the exclusive use area (95sqm) from the rest of the roof top.
The owners corporation has passed a resolution with an 87.4% majority to have the by-law set aside. (7.6% of the owners were for the resolution but not ‘financial’ to vote at the extraordinary general meeting). As the lot owner did not consent, an unfruitful mediation at the department of fair trading was held and subsequently an application was lodged with the adjudicator at the tribunal.
The adjudicator made an order for the by-law to be set aside (findings that the arrangement was a windfall for the lot owner and that the common property was an asset of the owners corporation).
This all made very much sense. The adjudicator had read the submission and documents and came to this logical conclusion.
The owner of the lot to which the by-law is attached appealed and his solicitor engaged a barrister to represent him before the tribunal. The tribunal hearing was anything but profressional. Grinning, the ‘tribunal person’ advised that he had not read the submission and suggested that he would take 1/2 hour to do so.
Not only did he waste time, he also continued to confirm that he knew the solicitor of the lot owner in question and considered him an ‘old warrior’ furthermore, he used law principles that did not apply -It was all very strange and dubious.
And he upheld the appeal on the grounds that the owners did not really want the common property back. – It was all a huge farce.
Of course the, the owners are dumbfounded about how a ‘person’ could come to such a conclusion.
It is not very comforting to know that you cannot trust a tribunal ‘person’ to be unbiased and trustworthy.
Regards, A reader
Great article. The CTT and it’s predecessors have been a sheltered workshop since inception.
All the best, KM
We read your article out loud at our office meeting this morning amidst laughter and nods of agreement. Clowns indeed.
Congratulations. You were spot on.
Keep them coming.
Our Strata Plan of twenty lots has been to the CTTT for nine years now because a Rogue owner built an attic staircase through his ceiling, through the common area and onto the roof, and there he erected a timber platform, all without Strata or Council approval. We are under orders from the Council, and the CTTT, to have it removed. The Rogue will not allow access to have it removed. The CTTT believes every lie, deceit, trick and fraudulent action, and encourages him every time; the Rogue lies under oath, lies on Statutory Declarations, presents Affidavits that have not be sworn, and all are accepted and acted upon. No matter what is presented by the Owners Corporation it is not believed. Recently,my husband rolled his eyes back in his head when the Adjudicator believed a lie from the Rogue, and the Adjudicator threatened to remove him from the room, as this is unacceptable behaviour! Are you aware of this rule?
As a JP myself, I am particularly upset by the fact that he writes his Statutory Declarations, stating that he is a JP and he signs them as a JP. He is not a JP. This is fraud. When I pointed this out to the Adjudicator, he said that it was irrelevant!
The rogue at the moment, has applied to have the Owners Corporation fined $5,500 for not removing the unauthorised staircase. We have been told that we must present proof that he is denying access. We have a great deal of documentation, but I have no faith in the fact that the CTTT will look at it, or even allow us to tell them about it. (Last hearing I was told to sit down when I went to state our side of the saga!)
Four and a half years of Solicitor cost us $45,000 and there has been approximately another $15,000 spent with us trying to carry out the Council and CTTT order. It has cost me over $10,000 personally having to take leave without pay for nine years to attend hearings!
We have used many forests in paper work, as each hearing requires huge amounts of documentation. In nine years, I haven’t been aware that any Adjudicator has ever read it.
The Rogue this week has had builders up on the roof with plans to build a three tier extension on his unit! He has no doubt been buoyed by the CTTT’s acceptance of his lies, deceit, devious tricks and fraud.
As you might guess, I have thousands and thousand of pages of documentation.
What can be done about it?
Keep up the good work,
I have read your column with interest and agree with you generally. OFT are public servants and we all know about that quarter but I feel that it is up to OC’s do ensure that bylaws are adhered to by the EC. After all, it is our property and laws are in place to assist the EC. We (owners) keep wanting by laws to evolve so we have more control but we keep leaning on OFT and strata managers to “referee” the problems. I feel that more education must also be provided to all prospective buyers so everyone is aware of the possible restrictions that are in place within strata living.
In my own strata scheme, we constantly dealing with issues that require the EC to make decisions regarding the by laws. It is frustrating when one or two of the EC state “it’s fine with me” but disregard the actual by laws regarding the issue. It is up to the rest of the EC to say “the bylaw states” etc. My feeling is that :-
1) the ECM may be concerned about the possible repercussions from the owner requesting the change to his/her property
2) if it doesn’t affect them directly they will agree to anything from other owners.
3) they do not know or understand the strata laws.
4) the process that the OFT and the strata manager employ to deal with maters is so convoluted the EC are left with unresolved issues for months.
5) that all EC minutes be accurately documented to show how the issue is debated, the dissenting ECM and not just the resolution !
I have made comments to the OCN that all ECM should have some degree of certification regarding strata laws and a willingness to undertake some course BEFORE they can sit on what can be a minefield (EC’s.)
I also feel that at AGM’s there should be a declaration by the ECM to agree to uphold the bylaws without fear or favour. This would ensure that executive members take this position seriously and not to be seen for any possible personal benefit.
My committee has taken steps to “record” the meetings with a laptop. That way we can refer to what was said and who said it. My experience has also been that when a strata manager records meetings the minutes are produced and circulated without the EC ‘s sight or approval and typed in accordance with the SM view. This has been contentious within the scheme and had resulted in miscommunications and delays to resolutions. While live recordings are not permitted it may be something for all owners to consent to in the future?
Todays’ column continues this debate…. bully boys who have the resources to challenge the EC… we must work to change these by laws, where are our strata law experts to promote government changes? How can any government allow this to continue?
Thanks so much for your column, it continues to challenge areas on behalf of owners who may not have the knowledge or strength to speak out against some threatening tactics. While it is great to see some government changes especially with developers there is much more needed to ensure that EC have education and skills to manage their properties. I would like the opportunity to discuss some time the methods strata managers use to manipulate EC to use contractors of their choice (do they get a kickback?) and to delay maintenance work in order to promote their own ancillary companies.i.e building managers