- This topic has 5 replies, 4 voices, and was last updated 5 years, 1 month ago by .
-
Topic
-
This unit is in Sydney, NSW.
The tenant’s boyfriend was parking illegally.
Notices to comply were issued to the tenant, according to the minutes of a strata general meeting. The owner did not receive information pertaining to this.
The tenant was apparently sent 2 bills for $550 each that the owner was totally unaware of at the time.
The strata manager is saying they are not fines, rather cost recovery for legal advice and the strata manager’s time.The tenant has moved out without paying these costs and the Strata manager has transferred the cost recovery of $1100 to the owner.
What is the owner’s legal standing in this case? Seems to me that the SM should be pursuing the tenant’s boyfriend if indeed he has the right to charge him in the first place.
-
Replies
-
If I was the owner I would email the SM and state that it is not the owner’s responsibility to pay for the tenant’s bills whether they be a fine or an admin cost.
The SC and SM cannot impose a fine unilaterally for a by-law breach in NSW. Only NCAT can issue fines.
This extract is from the Office of Fair Trading web site:
“The owners corporation can apply to the NSW Civil and Administrative Tribunal if a notice to comply has been issued and the conduct continues. If the Tribunal believes that there has been a breach of a by-law and the notice was given validly, they can issue a penalty of up to $1,100. If the Tribunal has already fined the owner or occupier within the last 12 months for a breach of the same by-law, the penalty imposed by the Tribunal can double to a maximum of $2,200. In this case, the owners corporation does not have to issue another notice to comply before applying to the Tribunal to impose the fine.”
So ….Wait for the SM to take this to NCAT if they dare. I personally don’t think that the SM will stand a chance of winning this by the methods that they are currently using. They possibly issued the initial $550 fines to the tenant without proper authority.
As Lady P rightly points out, these are not charges, they are de facto fines and as such will probably not stand up to scrutiny in NCAT.
It seems some lawyers are encouraging strata managers and strata committees to pass these by-laws, despite knowing full well that they are of dubious legality and probably unenforceable.
Why do they do it? Because the majority of strata residents – owners and renters – have no idea of their rights and may be scared into behaving more considerately.
So is that such a bad thing if it makes people better behaved? Bad by-laws eventually encourage bad behaviour because their flaws undermine the whole system. Lose once at NCAT and any future deterrent is diluted.
Have a look at this story where an owner was told by an NCAT Member that her scheme’s “costs” by-law wasn’t worth the paper it was written on.
You can’t charge people for a service they didn’t require or agree to. And you can’t say that an allegation of a breach of by-laws can be charged back to the alleged culprit (especially if there is a question over their culpability).
NCAT has the capacity to award costs (although traditionally they don’t). It’s up to the owners corp to make a strong case for fines and costs and that should be deterrent enough. But rest assured any claim for costs will be undermined if the scheme has a dodgy by-law in place that tries to award the strata scheme the same powers as the Tribunal.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
I am less familiar with NSW than ACT legislation. Here in the ACT, a consideration would be sections 31 and 107 of our strata act. These enable the OC to recover costs from an owner for breaches of the OC rules (aka bylaws) and hold the owner and tenants to be jointly and separately responsible for breaches. Does NSW have anything similar? In that case, perhaps the owner can be held responsible?
In line with this, if similar provisions exist in NSW and I were on the committee, I would have sent any breach notice to both the owner and the tenant. Otherwise the owner could claim they were unaware of the breach of the rules by the tenant (or invitee of the tenant) and consequently unable to do anything about it. If the owner had been aware, they might be able to do something about it because a condition of the lease would probably include compliance with OC rules.
Here are the ACT provisions:
s.31 Recovery of expenditure resulting from member or unit occupier’s fault
(1)This section applies if an owners corporation for a units plan has in carrying out its functions incurred an expense, or carried out work, that is necessary because of—
(a)a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or
(b)a breach of its rules by a member of the corporation, or an occupier of the member’s unit.
(2)The amount spent or the cost of the work is recoverable by the owners corporation from the member as a debt.
(3)If the owners corporation recovers an amount under subsection (2) from a member for an act, omission or breach of an occupier of the member’s unit, the member may recover the amount from the occupier as a debt.
(4)In this section:
expense, includes a reasonable legal expense reasonably incurred, including a legal expense relating to a proceeding in the ACAT.
work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.
s.107 Effect of rules
(1)There are taken to be agreements under seal between an owners corporation and each of its members, and between each member and each other member, under which the corporation and its members agree to be bound by the rules of the corporation.
(2)An occupier of a unit (who is not the owner of the unit) is bound by each rule of the corporation as if the occupier were the owner of the unit, unless the rules provide otherwise.
(3)If the unit owner does not occupy the unit, the owner is liable separately and together with an occupier of the unit for any breach of the rules of the owners corporation by the occupier, unless the owner proves that the owner took reasonable precautions and exercised appropriate care to prevent the breach.
(4)An occupier of a unit who occupies the unit under a residential tenancy agreement within the meaning of the Residential Tenancies Act 1997 is not bound by any rule of the owners corporation to the extent that the rule is inconsistent with the prescribed terms (or terms to the effect of the prescribed terms) to which the agreement is subject under that Act, section 8.
A recent (i.e. 2019) NSW NCAT decision relating to an owner’s obligations with regard to their tenant’s by-law breach may prove to be helpful.
See link: https://www.lookupstrata.com.au/nsw-ncat-says-landlords-are-not-responsible-for-tenants-noise/
In summary:
“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”.
Please also read the comments in the link for a suggestions on how to resolve by-laws breaches against tenants in NSW.
Why wasn’t the owner informed their tenant wasn’t complying with the by-laws?
Was the REA informed?
It might even be argued that the OC was more interested in the money than resolving the issue.
- You must be logged in to reply to this topic.