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  • #8971
    Dudley
    Flatchatter

      I have a situation, which I’m sure has been experienced by others, which is causing me concern.

      I am an owner of a terrace style 2 story town house in a strata plan of 4 residences.  As I understand the strata rules the ceiling in the top floors is common property. Our town houses, which are full brick and tile construction, circa 18 years old have the minor wall and ceiling cracks that all residences have as a result of movement.

      My questions concern what is owner responsibility, what is “fair wear and tear’, is it a responsibility of the strata plan to rectify what is in fact a cosmentic detail? I believe that one owner in our strata plan is attempting to use the plan to establish a standard far beyond what is reasonable. Is there an established guide or some way I can determine if I or the other owner is being unreasonable?  The potential cost for the latest “complaint/request”, when added to previous repairs is, getting very expensive.

    Viewing 11 replies - 1 through 11 (of 11 total)
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    • #19159
      Sir Humphrey
      Strataguru

        Since all 4 units are in the same situation, you have an easier situation than some. It would be harder if only a minority of units/lots had the damage, the damaged areas were common property and it was reasonably debatable whether or not the damage was minor and cosmetic and could be reasonably left unrepaired. In that situation you might have a majority decide to not spend the money to the detriment of the minority who might then have a case that this was a ‘fraud against the minority’.

        However, since all are in the same situation, I would say the owners corporation as a whole could decide whether the problem was serious enough for the owners corporation to make the repair. Three owners might decide it was cosmetic only and was not going to become serious as a consequence of failing to make repairs now. In the ACT the Unit Titles Act says:

        “An owners corporation for a units plan may, by special resolution, exempt itself from 1 or more maintenance obligations …[mainly the common property]… if the exemption is not reasonably likely to have a significant adverse effect on—

        (a)  the appearance of the common property; or

        (b)  the safety of occupiers of the units or of the public.”

        Assuming you have some similar provision where you are, the test is whether deciding not to make this repair would be a ‘significant adverse effect’. IE it is permissible to have a minor cosmetic adverse effect but you would want to explicitly resolve that that is what it is. 

        If failing to make a repair now would mean the ceiling might fall in later or a subsequent repair might be considerably more expense then I don’t think you could decide to leave it. 

        If it really is only a cosmetic matter and it bothers some owners and not others, you could resolve to hand this maintenance matter over to the individual units owners to deal with (in the ACT anyway). In doing so you would want to make it clear that owners are only permitted to do the minor work and that any matter that could effect the structure or safety had to come back to the owners corp. 

        #19166
        Whale
        Flatchatter

          Peter – you’re spot-on; couldn’t agree more!

          Dudley – I think you’re in NSW, and you need to know that the Cl.62(3) of the Strata Schemes Management Act has an almost identical provision to the one referenced by Peter.

          By the way, if the owner who wants the Owners Corporation to repair cosmetic flaws has a gyprock ceiling, they haven’t experienced the mess that activity would cause!

          #19168
          Dudley
          Flatchatter
          Chat-starter

            Once again this forum has provided me with answers to “what do I do next”.

             

            Whale, you are right, I am in NSW, Sydney area.

            PeterC, your information, confirmed by Whale, has addressed the issues I am experiencing. As always – nothing is simple – there is a history of “bad-blood” between me and my neighbor, the subject of my initial inquiry. They (married couple) and I are on , the EC. I have over the last few years, since my retirement, have become more active in the decision process of the Strata plan.

            In doing so I have “locked horns” with my neighbors who have in the past more or less run the show. The 4 townhouses are all owned by the original owners, one owner lives in the country and has had a rather frequent turnover of tenants (multiple tenants at the same time) current tenants are the best – so far. The other owner chooses not to be involved and really wants a quiet life.

            The reason for my increased involvement was the amount of owner specific and cosmetic expenses being charged to the strata plan. In addition the “straw that broke the camel’s back” was the direction that the strata plan would change our garbage collection arrangement from shared green, glass and paper recycle bins to individual bins for each townhouse. As you can imagine this, with garbage, would result in 16 bins for 4 terrace style townhouses with limited bin storage room. I might add that my neighbor locks their garbage in their garage. The council was advised of this decision without any discussion with any other owner. I was successful in stopping this plan.

            Since then our communications have deteriated to the point that all contact is via e-mail. The strata manager has been placed in the crazy position of ensuring that he confirms that any decision is agreed to by both members of the EC. Enough of the dramas.

            The current position, as I see it.

            I need to get an “expert” opinion on the problem – which is occurring in all residences to my knowledge – structural or cosmetic.

            If cosmetic, discuss with the other owners the various options available to us. I might add that I have repaired minor cracks caused by settlement of the residence over the circa 17 years of living here.

            I know I’ve rambled but I appreciate the advice I get from this forum. I am so uncomfortable with the tension this is creating.

            #19189
            Dudley
            Flatchatter
            Chat-starter

              Further to my previous post,

              Can I, as a member of the EC, ask the other owners to support a special resolution  – in line with Sect 62 (3) (a) & (b).

              If there are 4 owners, with equal voting entitlements, and 2 are for and 2 against the special resolution – what are the next steps?

              #19190
              Jimmy-T
              Keymaster

                If there are clear anomalies with the way the building is being run and the way common property is being managed you can apply to the CTTT for a order, forcing the Owners Corp to pass a by-law to put things right. You’ll find out how to apply to the CTTT for an order HERE.

                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.
                #19191
                Sir Humphrey
                Strataguru

                  …Can I, as a member of the EC, ask the other owners to support a special resolution…

                  I would say that as an owner (on the EC or not) you can ask any other owner to support or not support any motion proposed by anyone.

                  #19192
                  Jimmy-T
                  Keymaster

                    @Dudley said:

                    If there are 4 owners, with equal voting entitlements, and 2 are for and 2 against the special resolution – what are the next steps?

                    Your special resolution would pass with 3 of the four votes on the basis of the  “not more than 25 percent voting against” rule. Lobby hard!

                    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.
                    #19205

                    Minor settlement cracks are common and are usually treated by the application of a flexible sealant prior to carrying out normal regular painting (as part of the normal preparation for painting).

                    It follows that any internal painting of the unit is the lot owners responsibility and this should be taken care of by the lot owner with their standard maintenance of their lot.

                    However – take care not to always label the cracks as cosmetic as if they are constant and continuing to get works (whether in one unit or more) they could be an indicator of other significant issues. In this circumstance, ignoring the request of the other owner could lead to liability issues further down the track.

                    #19414
                    Dudley
                    Flatchatter
                    Chat-starter

                      Good Afternoon All,

                      A few extra questions re the ceiling cracks etc.

                      1. Are the ceiling cracks, in top story of a two story townhouse, always a strata issue? The cracks have been identified as cosmetic NOT structural.
                      2. As well as the ceiling cracks there are issues, separation gaps and fallen cornices, are these also strata?
                      3. The property is 17 plus years, would painting also be strata?

                      I feel that “somewhere” the owners should be responsible for the ongoing maintenance of their own properties.

                      Dudley 

                      #19419
                      leif
                      Flatchatter

                        62 What are the duties of an owners corporation to maintain and repair property?

                        This clause 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

                         

                        We are quoting a special resolution but that is only applicable if:

                        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

                        Not having seen the cracks do they not detract from appearance? And if not why raise the question?

                        #19420
                        leif
                        Flatchatter

                          Although maintenance of common property is an obligation the maintenance of internal walls and roof that is common property still is to some limit the owner’s responsibility.

                          In summary it is the size of the cracks that determines if the fix is owners or owners corporations responsibility

                          The extremes are easy, cracked paint owner, large cracks Owners Corporation but I have not seen any clear definition of in between nor any definition of large enough to change from owner to owners corporation.

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