Flat Chat Forum Common Property Current Page

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  • #52370
    AvatarManta
    Flatchatter

    I have a ground floor unit built 2004. The previous owner bought off the plan and had a gate installed in the corner of the balcony. It cannot be seen due to privacy screen shrubs.

    I bought in 2005 but have never lived in the property. Only a few excellent tenants – never a complaint.

    After a petty disagreement, the neighbour – committee member ( who has always been jealous of the gate) has convinced the committee to issue a Section 108 breach (unauthorised works on common property) via letter and demanding removal within 6 weeks – after 15 years “it has been brought to our attention.”

    She bought in 2006 and would not have missed any work being done!

    No Emails, phone call or attempt at getting the facts.

    Trying to track the original owner and [developer] records from the time  – waste of time for a lot of people.

    Is there a statute of limitations applying to this sort of heavy-handed action?

    • This topic was modified 1 week, 3 days ago by .
Viewing 7 replies - 1 through 7 (of 7 total)
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  • #52468
    AvatarManta
    Flatchatter
    Chat-starter

    Committee withdrew their letter and denied I was actually accused or threatened.

    Didn’t actually get an apology but a good result.

    #52460
    Jimmy-TJimmy-T
    Keymaster

    It sounds like you got a result but I’m not sure what happened here.

    Which letter was withdrawn, yours or theirs?

    #52435
    AvatarManta
    Flatchatter
    Chat-starter

    A letter was sent yesterday morning advising that the gate would not be removed, there had been no attempt at mediation and I would start the proceedings at NCAT.

    Committee managed to convene a meeting by lunchtime and the letter was withdrawn.

    Thanks for your help.

    #52393
    AvatarManta
    Flatchatter
    Chat-starter

    Thank you for the info. I will be happy  to go to the NCAT and I don’t think it will be difficult to prove vindictive behaviour.

    They haven’t provided a date when this work was done but is a “Direct contravention of Section 108 of the Strata Scheme ManagementAct 2015” . This act was not in existence in 2004 so couldn’t have been contravened anyway.
    Shouldn’t be relevant anyway as it was done by the builder of the complex. Materials and current condition all the same as the rest of the fence.

    The AGM is being held next week so I will be able to question the committee directly (via Zoom unfortunately). An opportunity for all the 156 owners to hear about the committees actions. The committee and maybe 5 others!

    Other approach is to get their reasons in writing and go to NCAT – telling them what I really think might be counterproductive!

    #52394
    Jimmy-TJimmy-T
    Keymaster

    OK, let me stress this is not legal advice and it is just my personal opinion, but I can’t see any contravention direct or otherwise of Section 108 of the Act.  It says:

    108   Changes to common property

    (1) Procedure for authorising changes to common property

    An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

    (2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

    OK, you have neither added to common property, changed common property nor erected a new structure under the terms of S. 108, so that claim is highly dubious.  In any case, their claim should state how this “direct contravention” exists – not just some airy-fairy waving of generalisations.

    If the gate has been there since the original owner sold it to you, then it was installed under the terms of the 1996 strata Act, and there is an interesting item in that Act.

    113 Restrictions on powers of owners corporation during initial period
    (1) An owners corporation must not, during the initial period … alter any common property or erect any structure on the common property otherwise than in accordance with a strata development contract.

    A smart lawyer might argue that since the gate was installed when the block was new, it can be assumed it was part of the strata development contract – unless they can provide proof to the contrary.

    And talking of smart lawyers, our sponsors Sachs Gerace Lawyers have this case study on their website. It’s not exactly the same but it’s worth a read.  In it, an owners corporation tried to force an owner to reinstate common property because they said the lot owner didn’t have proper permissions for work (installation of skylights).

    The lot owner sought a retrospective by-law and the owners corp refused.  The owner challenged this at NCAT and lost initially but won on Appeal (thereby creating a precedent for future NCAT cases of this nature).

    The point I would make is this, if you were prepared to agree to a retrospective by-law, taking responsibility for the maintenance of the gate, then they can hardly refuse and expect that refusal to be upheld at NCAT.

    If you want the owners corporation to accept responsibilty for the maintenance of the gate, then you have a longer and tougher fight, but you would have grounds (although no guarantees).

    But they should know that any attempt to force you to remove the gate is on very shaky grounds and could cost the owners (but not you) a lot of money if they are determined to pursue it.

    FYI, the general meeting of the owners corp can order the committee and the strata manager to drop the case, if the item is on the agenda.

     

    #52390
    AvatarManta
    Flatchatter
    Chat-starter

    Thanks for the info.

    Their wording is “a direct contravention of section 108 of the Strata Schemes Management Act 2015” .
    They have not mentioned a date when they believe this work was done but is there retrospectivity with the act?
    The previous act appears to be 1996 which would have applied  Not really relevant but may be an example of their lack of thought in starting this.
    Swimming pool fencing legislation is not retrospective.

    The AGM is been held on Thursday via Zoom unfortunately but I have registered to speak so will able to address these issues directly and make other owners aware of their actions. Of the 156 owners there will be a large number watching – maybe as many as 5 plus the committee!

    #52384
    Jimmy-TJimmy-T
    Keymaster

    There is no “statute of limitations” that I know of but there are (probably non-legal) principles of accepted practise.

    I draw your attention to this discussion about the grounds under which you can demand costs be imposed against the other side in a case at NCAT.

    Now, I would be writing to your committee to ask specifically what the problem with the gate is and what you can do to remedy this.

    If it is the mere existence of the gate, that is probably not enough.  If it is concerns over the future maintenance of the gate, then that can be negotiated – and you are happy to commence negotiations whenever they are ready.

    However, if it is in any way a malicious or spiteful move by the committee or any of its members, you will be happy for them to take the matter to NCAT where you will claim full legal costs against the strata scheme for  “special circumstances” under which costs may be awarded, specifically, that the matter had limited or no possibility of success and where the claim was “weak, misconceived and bound to fail”.

    In the meantime, you might want to talk to our sponsors StrataAnswers who offer low-key, low-cost assistance in exactly this kind of issue.

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Flat Chat Forum Common Property Current Page