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Goodbye lawn, hello concrete
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Curly
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26/05/2018 - 9:27 am
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Hello All,

I came home from work and noticed a large amount of the common property lawn outside a nearby villa has been removed and the area prepared with formwork for concrete.

The lot owner and son, both fairly intimidating characters have been parking their cars in front of their garage and this adjacent grassed area since they moved in last year. 

Last year as Secretary of the SC I approached them about not parking on the lawn as it was damaging it. I explained that they should be parking in their garage and that extra vehicles should be parked on the street as should their visitors vehicles. Unfortunately nothing improved so I asked our strata manager to write to them warning that the next step would be the OC issuing a notice to comply.

I had a motion to issue a notice to comply included for our AGM.  I also got quotes for bollards to stop the parking on the lawn and presented this motion at the AGM. I provided photos of the cars and the damaged lawn at the AGM however after a heated debate both motions were rejected by the majority of owners. The villa owner also attended the meeting and was rather hostile saying there were more important issues than parking to worry about – totally ignoring the issue of the damaged lawn.

Most owners have numerous vehicles and park on common property in front of their garages, which the majority of our OC have decided isn’t an issue when it causes no damage and doesn’t impact anyone else. However now we fast forward to this week and the grassed area has been dug up.  No OC meeting held and no approval sought for this land grab.

I have sent an email to the Strata Manager advising that this unauthorised work is currently occuring and that if the OC chooses to ignore the proper process for dealing with this issue I will be taking the OC to Fair Trading. I have received no response, how long should I wait and what should I do next?

After four years I chose not to sit on the SC this year. 

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scotlandx
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27/05/2018 - 2:25 pm
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Please don’t wait, the owner is appropriating property that doesn’t belong to them for their own use. They are also changing/damaging common property.

It sounds like the OC is useless so make an application for an urgent order to stop them and require them to restore the common property.

http://www.ncat.nsw.gov.au/Doc…..cation.pdf

I think this is the second time I have suggested this in a week, I don’t think it is me, I can’t believe what people think they can get away with.

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Curly
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27/05/2018 - 8:27 pm
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Thank you for your response.

I’ve had a look at the NCAT interim orders form and note that all details in the application would be provided to all parties.  This means that a very intimidating man and his adult son would know that the application was made by me as I would be listed as the applicant and he’d be the respondent. He would also have all my contact details including phone and email from the application.

While it is obvious that this owner is making an unauthorised land grab for more illegal parking I would feel very uncomfortable once he knew that I personally applied for the interim orders against him and not the OC. Is there anyway I can get the OC to progress this?

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scotlandx
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27/05/2018 - 10:23 pm
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I think you’re best placed to answer that – you have indicated the OC hasn’t shown any interest previously. Have you called the strata manager?

You have to consider how important you believe this is. I stuck my neck out and pursued a matter a number of years ago – it made me very unpopular at the time, but I believed the issue was more important than what random people thought of me.

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Curly
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31/05/2018 - 1:48 pm
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The Strata Manager has advised that the Strata Committee initiated this unauthorised change to common property and not the lot owner. After my email threatening to go to Fair Trading, the SM has advised that the work has stopped and the SC has been advised to hold an Extraordinary General Meeting.

Sadly it seems that rather than follow the legislation and deal with continued by-law breaches the new SC has decided to reward lot owners and their visitors who illegally park on common property by using OC funds to pay for the removal of established lawn areas and concreting them, so that lot owners and their visitors can continue to illegally park on common property.

I’m at a total loss to see how if this alteration to common property if approved it would improve or enhance the common property for the rest of us.

I am concerned it would set a very dangerous precedence. Will other residents who continue to park on the lawn also be rewarded with lawn near them converted to concrete for them to illegally park on.

Over the years various real estate agents who have appraised my property have commented that the cars parking on the lawn makes our complex look like housing commission.

I’ve told owners this at the AGM when my motion to issue notices to comply was defeated.

I’d appreciate any ideas on how to stop this, would I have a case to present at NCAT?

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dech
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05/06/2018 - 4:46 pm
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  Presumably no one involved with the exception of at least someone associated with the Strata Mgr’s. has any understanding of Strata law so you may be able to buy time i.e. if the EGM doesn’t get a quorum or more likely they fail to make the item a Special Resolution thus rendering any vote invalid.  Your view of whether replacing a grassed area with concrete (probably soon to have oil stains) enhances the block is worth whatever your unit entitlements add up to but legally those approving of concrete require 75% agreement of those who attend (including proxies) a properly convened meeting.

   It would appear from what you have stated that there are grounds for the Owners Corp. to explore litigation against whoever authorized the destruction of common property thus far which presumably also included mis-appropriation of money i.e. legal appropriation=approval by special resolution anything else=mis-appropriation.

  You might also politely ask the Strata Mgr. whether anything in the contract states or implies that they provide advice as to the legality of any action prior to it’s commencement.  Or maybe you can leverage some of all this to get the OC to pay for screening. 

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Curly
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09/06/2018 - 8:47 am
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Thank you Dech for you response.

The EGM agenda arrived yesterday and the motion is a special resolution to replace the grass with concrete. Interestingly a P.S. is included in the motion that in the event the motion is not approved reinstating the grassed area will cost approx $3000.

Would I be able to get the motion declared out of order at the EGM because the sole purpose of this change to common property is to allow a lot owner to continue to illegally park on common property which is a breach of one of our bylaws. I certainly can’t see any motion giving anyone exclusive rights to park anywhere. If this tack fails could I get an order at NCAT? 

I’ve got a motion on the agenda to issue Notices to comply to the lot owner and other residents who are also currently parking on our lawns, so I doubt I’ll be popular at the EGM, however I don’t want this precedent to occur – removing lawn to allow for illegal parking on common property will only devalue the complex. 

If people come to their senses and the motion is not passed and the grass is reinstated how can I get the SC to pay rather than the OC since it was the SC that didn’t follow proper procedures and commenced this work without OC approval? 

Hopefully someone can suggest some ideas I can explore.

Thank you  

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dech
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10/06/2018 - 4:38 pm
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   This sounds like a Third world village type of situation; NSW law may protect you from losing your home but if not even one more than a quarter of Owners who vote disagree (or feel intimidated by the “big men” to not vote) with giving away common property and spending probably hundreds of dollars each to concrete over grass then welcome to my world.

  A few possibilities come to mind; presumably everyone concerned is aware that you are the objector so the advice given in “Hamlet” may apply viz: “Beware Of entrance to a quarrel, but being in, Bear’t that the opposed may beware of thee”.  

1.  Ask the secretary to send out a new/revised EGM agenda or at least a note advising that the $3K re-instatement cost will not be bourne by the OC but by whomever authorized the work and they may also bear legal costs should they wish to dispute this (I suspect someone will find a “mate” who can do it for far less cost/ request something like this on an interim order and or the mediation/ and NCAT order which I think are mandatory with the interim order (call Fair Trading for conformation on 133220 there is only a two min. wait in my experience) ; this blackmail like element in particular is a gross affront to the rule of law and should get a strong response from NCAT.

2.  New/modified agenda that the common property be sold to the parkers at market rates.

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artarmonite
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14/06/2018 - 12:12 pm
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I don’t know what state you are in or council area but in NSW most council areas have a ratio of hard to soft surfaces that cannot be exceeded. It is done to minimise and control stormwater. Most developers use as much hard surface as possible – this includes any buildings so any increase in hard surface is often not possible as it will make the hard surface exceed this ratio and so the development will be non compliant. In most medium or high density areas in NSW any change to soft to hard surface needs a DA at least.

I would contact your local council and ask to speak to the duty planner. They should be able to tell you if the Owners Corporation needs to submit a DA. If the OC needs to submit a DA at the very least this will give you time to discuss the implications with other owners.

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Curly
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17/06/2018 - 7:13 pm
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Thanks for the advice, I had emailed council a few weeks ago and haven’t heard back. I’ll phone up and speak with the duty planner as you have suggested.

I’ve just looked over the financial report that was sent out with the EGM agenda and note that our Secretary wasn’t financial for the previous quarter – we have an EC of just two. There hasn’t been any EC meetings this year however OC funds have been used for new sandstone garden beds for certain lots owners, these garden beds are new and never existed before.  These changes to common property were never discussed or agreed to. I’ve emailed the strata manager and asked him to add these to the agenda for discussion however the work has already been done and paid for with OC funds. 

It appears these selfish lot owners who continually park on the lawns seem to have been rewarded by the SC with lovely new garden beds and no one wants to issue anyone a notice to comply to stop parking on the lawns…. 

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Curly
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30/06/2018 - 8:39 am
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Well we had our EGM and after the Secretary clarified that the lawn area was being concreted to allow a lot owner to park there most attendees voted for this change and for the OC to pay – I kid you not. The lot owner said they’d continue parking on it whether it was lawn or not – I kid you not.  I asked the Chairperson to rule the motion out of order stating that if passed it would be in direct breach of our bylaws against parking on common property. Some attendees actually asked that the by law about parking on common property be abolished! 

I asked that the OC seek confirmation from Council whether a DA was required as we were changing the footprint by increasing the the ratio of hard surfaces.  At this point the strata manager said they’d consult with their boss and get back to us on the matters I had raised . I advised that I would take the matter to NCAT if due diligence wasn’t adhered to. My motion to issue notices to comply to lot owners who also park on the lawn was also rejected. 

I’d appreciate some guidance on what orders I can/should seek at NCAT about our parking bylaws not being enforced and whether I can get the original motion to convert the lawn to concerete disallowed as the work is purely being done to allow illegal park on common property?   

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Jimmy-T
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30/06/2018 - 11:22 am
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Depending on how efficient your strata managers are, the first thing you might need to do is to apply for an interim orders instructing the owners corp not to proceed with the work.

You would do this using THIS FORM. The application for interim orders does not require mediation but it must be related to an application for orders which does.  

So, at the same time you could apply for mediation, then orders, under section 24, revoking the decision of the general meeting, on the grounds that it a) contravened the terms of a by-law already in place and b) gave exclusive use of an area of common property without appropriate common property rights by-laws being passed. 

Once that has been resolved, you could apply for mediation, then orders under Section 232, due to a failure of the owners corporation to enforce a legitimate by-law. You probably have to do this after the Section 24 matter has been resolved, due to the conditions laid out in Section 232.3 (below)

In both cases your mediation application would be on THIS FORM and your subsequent NCAT application would be on THIS FORM.

Here are the relevant sections of the Act and how they may apply in your case.

24 Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of … the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.

Section 135 of the Act requires all owners to comply with by-laws.  The decision of the meeting is one that allows owners not to do so and is therefore probably in breach of the Act.

(3) The Tribunal may refuse to make an order under this section only if it considers: (a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person …

The granting of exclusive use of a section of common property and the payment of the costs of concreting are both at a cost to other owners and the actual use of this new parking area may also adversely affect other owners (if that’s the case).

231 Interim orders
(1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may:
(a) make an interim order in the form of any order that could otherwise be made by the Tribunal …

This is worth pursuing if you think the strata committee and strata manager are likely to move quickly on this to avoid orders not to do so.

232 Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if: a) it decides not to exercise the function …
(3) Other proceedings and remedies
A person is not entitled:
(a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or
(b) to make an application for an order under this section if the person has
commenced, and not discontinued, proceedings in connection with the
settlement of a dispute or complaint the subject of the application.

So your owners corp is in breach of section 232.2 (a) because it has clearly and openly decided not to exercise its duty to issue a notice to comply.  Your strata manager should have cautioned them that this might be the case.

This could turn out to be complicated so you might want to consider getting legal advice from a specialist strata lawyer …

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Curly
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05/11/2018 - 8:05 pm
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Here’s an update on the above issues. The area has been concreted and the lawn is gone. 

Interestingly the meeting minutes include the following note. “this approval does not provide any owner permission to park on common property and is not considered as creating a new parking space. The reason for the works is to provide better access to the garage for lot x as they were driving over the lawns due to the restrictive nature of the driveway”. 

This is not true as the previous owners seemed to have managed for the previous 10 years, anyway to add insult to injury the lot owner and his son now park on the new concrete every day as their garage is converted to a games room. 

I did apply to NCAT and we recently had our Fair Trading mediation stage. The Secretary who attended said they want eveyone to get along and don’t want to Issue Notices to Comply to the other people who park on the lawns. The Secretary said they would instead speak to the people parking on the lawns and tell them to stop. When I mentioned the new concrete area is now being used for parking which contradicts the note on the EGM minutes and is in breach of one of our existing bylaws I was told to get over it. So I now have the option to pursue these matters at NCAT.

I don’t think it’s worthwhile going to NCAT about the lot owner and his son parking on the new concrete area as all they need to do is ask for and get permission to park there and they are off the hook.

We have our AGM in December and I’d like to include a motion to get the lot owner to pay for the concreting as he is the only one who has benefitted from the change.  At last year’s AGM he did volunteer to pay for the concreting when I raised the issue of the damage caused to the lawns.

Hopefully depending on how it’s worded when the lot owner sees it in print they will realise that OC funds shouldn’t have been used for this work as no one apart from him has benefitted.

Would this motion be possible and how should it be worded?

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Jimmy-T
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06/11/2018 - 8:39 am
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So, your neighbours have effectively annexed common property for their private use so they can extend the effective living area of their homes, without compensation to the Owners Corporation.

This is a land-grab by any other name and your Owners Corp should be asked exactly why they are allowing this to happen without any payment to the OC.

Maybe they don’t want to call it a parking area because that would involve a DA from the local council, but a parking area is exactly what it is.  And while they are pleading innocence and trying to show that they are just being good neighbours, they are also deliberately playing fast and loose with the truth.

Is it a parking area? If it has feathers, waddles and quacks like a duck … it’s probably a duck.  But it’s time to stop fighting aboput who parks where and say – OK, if you want to play it that way, there a re rules and processes that you have to follow.

Your motion at the AGM should be that the Owners Corporation seeks suitable compensation from the beneficiaries of their generosity  as well as a by-law that passes ongoing responsibility for the parking area to the people who park on it so that they can have a games room.

Otherwise the OC should order the owners not to park there and pursue them with notices to comply if they do so. If they fail to do that, then you can (and probably should) pursue the committee through NCAT for failure to fulfil their responsibilities under the Act.

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dech
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06/11/2018 - 5:28 pm
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   About a decade age a developer built a whole shopping centre without approval and ultimately it was ordered that it be demolished – which seemed like a pleasing outcome for those who value (and can comprehend) the rule of law.      This case would appear to be a case where NCAT -if involved- should appoint  a Strata Mgr. to take over control for a period and arrange/negotiate suitable recompense.   

    I haven’t re-read all the previous mail on this but my experience with most SC members have a somewhat similar disregard of the law but present a strong defence that they are “doing the right thing/avoiding trouble” etc.  Although phrases such as “Special Resolution” occasionally appear on some paperwork I don’t think anyone involved has ever spent two minutes attempting to comprehend what the Law requires; they probably think that something like building a swimming pool or removing balconies require a special resolution in order to awaken the majority of un-involved investors who otherwise don’t want to be disturbed by agenda’s and minutes of SC meetings.  Your case seems similar except that some/most owners think of the offenders as a “mate” and thus I would think that legally they could do what they have done except that they would chip in from their own pockets to pay for the ownership of the land to be transferred to the “mate” if they didn’t think he should have to bear the burden.

    I note that NCAT doesn’t get good press but this is the sort of situation for which it exists.

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Curly
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01/12/2018 - 8:18 am
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The AGM agenda is now out for our December meeting and my motion to seek compensation from the lot owner has been included as per Jimmy’s suggestion above…..

Another lot owner has included the following rather bizarre motions:

“an owner or occupant may without consent, park or stand a motor vehicle on any common property adjacent to their property, for a period of 24 hours”….  This effectively means all the time! 

“an owner or occupier may not take a photograph of another owner’s property without prior written consent” … I assume he means their illegally parked cars…..

” that the owners corporation specially resolve to convert the grassed areas located in front of six of the lots to concrete”…… goodbye lawn, hello concrete seems to becoming a reality…

Would any of these motions be valid?

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Jimmy-T
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01/12/2018 - 9:30 am
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No by-law can be valid when it supersedes a superior law.

Number one, you could argue, turns common property into permanent parking spaces, which would be in violation of your Development Approval, and does not adequately compensate the owners corporation for removal of common property for use by individual owners.

Number two would be invalid because it infringes your legal right to photograph anything on or from public property, or from your private property, subject to specific laws related to behaviour that you would reasonably expect to be private (like bathing or sexual activity).  Technically, if you are on public land or your own property the law means you can photograph someone in their home washing their dishes, but not taking a shower. However, the owners corp can restrict behaviour on common property, so it’s all about where you stand when you are taking the pictures.

Like number one, number three also contravenes your DA and does not adequately compensate the owners corporation for removal of common property for use by individual owners. 

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