25/03/2019 at 8:06 am #36565
Not a fine, but what can OC do about extra charges when, despite having a decent reason and giving proper notice, OC doesn’t get access to some units for fire inspections etc? Repeat visits cost $250 each. Is there precedent for a by-law giving the OC power to charge owners? For tenanted units, presumably the lease should be drafted to let the owner charge the tenant.25/03/2019 at 10:22 am #36573
My original response to this question was written back in 2015 and these days I am a lot less sure that OCs can have by-laws that appear to impose fines or “costs” on owners. I know that some strata lawyers are advising owners corps to have such by-laws as deterrents, but I seriously doubt if they will stand up if challenged at NCAT.
There are provisions in strata law for NCAT to award costs and I think that is the way to go. You could howver include in your by-laws that the OC will pursue the matter of costs as vigorously as possible at NCAT.25/03/2019 at 11:27 am #36575
I am surprised this seems so hard in NSW. The ACT has section 31 of our act which explicitly empowers the OC to bill a resident for expenses it has incurred, including a reasonable legal expense reasonably incurred, while carrying out its functions, including maintenance or anything else it is authorised by the act to do, if the expense was caused by a wilful or negligent act or omission or a breach of its rules by an owner or an occupier of a unit. The amount spent by the OC is recoverable by the owners corporation from the owner as a debt.
So, here in the ACT, for the example given, if reasonable notice and other proper procedures were followed in order to gain access to a unit for a required safety inspection and the owner then did not allow that access and that required rebooking of an inspector at a further cost, then I would say an ACT OC would be on solid ground to just bill the owner for that extra expense caused by the owner unless the owner had some reasonable excuse such as sudden illness that meant it was not a wilful or negligent act or omission. If it were challenged, I’d expect the OC would succeed at the Tribunal.
Does NSW not have something similar? Usually the NSW seems more comprehensive in covering such things.25/03/2019 at 12:59 pm #36579
chesswood – The OC would have to have very strong evidence that they did everything that they could to obtain access to an apartment before issuing a $250 call back fee.
Sometimes it is just not convenient for an occupant to be present to allow access at the time that everyone else does. Other access times should be accommodated by the OC.
An occupants’ “refusal of access” is quite different from an occupant not being able to provide access at the time that the OC wanted.
In my opinion the latter would not be defined as “refusal of access”.25/03/2019 at 1:19 pm #36580
One of the ACT’s default rules does not require more than ‘reasonable notice’ and a ‘reasonable time’. Nonetheless, I agree with LP that a time that suits everyone else might not be a reasonable time for some owners and the OC should be accommodating.25/03/2019 at 10:54 pm #36605
Regarding failure to allow access, Section 122 of the Act allows the Owners Corp to apply to the Tribunal for fines to be imposed. Those fines would normally be paid to the OC, covering the call-out fee, but the threat of them might motivate the owner to allow access.
122 Power of owners corporation to enter property in order to carry out work
(1) An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
(a) work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
(b) work required to be carried out by the owners corporation by a notice given to it by a public authority,
(c) work required or authorised to be carried out by the owners corporation by an order under this Act.
(5) A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.
Maximum penalty: 5 penalty units ($550)
And then there’s this:
123 Access for fire safety inspections
(1) A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises that is part of a strata scheme for purposes relating to fire safety may give a written notice to the owners corporation requiring the owners corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the lots in the strata scheme.
(2) An owners corporation must comply with a requirement of a notice given to the owners corporation under this section. Maximum penalty: 20 penalty units. ($2,200)
(3) It is a defence to a prosecution for an offence against this section consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation.
29/03/2019 at 1:01 pm #36669
- This reply was modified 2 weeks, 3 days ago by Jimmy-T.
The case below is a good read in relation to this thread.29/03/2019 at 1:03 pm #36675
The interesting part of the above case – a matter in a district court, not NCAT – is the confusion caused by the “over-reach” of charging for legal costs when no such costs had been awarded by the Tribunal.