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12/10/2019 at 8:37 am #43210LaldyFlatchatter
I have an investment property in a block of 12 units. A by-law stating that people were not allowed to appropriate common property for their personal use was passed though the standard by-law on parking was deleted when the by laws were updated in 2017.
The strata committee members took to parking on the common property all the time which made access to my garage very difficult.
When I complained and pointed out the appropriation of common property by-law the committee members commissioned legal advice from a firm of solicitors who confirmed that there was a breach of a by law but the strata committee refuse to issue a notice to comply. Can they do this?
12/10/2019 at 1:10 pm #43216
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Strata committees are obliged to enforce the by-laws of the building when they are found to be in breach – a fact that was pointed out to me by then Fair Trading minister Victor Dominello, who referred to his citing of “duty of care” in his second reading of the current Act.
If they refuse to do so, you can initiate proceedings under a Section 232 (2) request for orders from NCAT, starting with the obligatory application for mediation at Fair Trading (a process that’s free of charge).
Fair Trading mediators won’t adjudicate – that’s not why they are there – but if you don’t get a written undertaken to take remedial action by a specfic date, you should consider moving ahead with the application to NCAT.
If you want to put a scare into the committee, you could suggest that since they got legal advice at the owners’ expense, and then chose to ignore it, you will also apply for costs to be awarded against the individual committee members due to their misuse of ownewrs corp funds.
I don’t know if that will fly, but it will probably get their attention.12/10/2019 at 3:02 pm #43235Colonel SchultzFlatchatter
You could also look at Ozslam Pty Ltd v The Owners Strata Plan No. 1436 2018 on the nsw case law website to see if any of that might be relevant to your situation.12/10/2019 at 3:13 pm #43242
Thanks you, Colonel Schultz. That’s a very interesting case (even though it doesn’t really set any legal precedent, it shows the way NCAT Members might think).
You can access the full Tribunal Decision HERE. I reckon if Laldy shows it to her strata committee, they might fold – and they would be well -advised to do so.13/10/2019 at 10:21 am #43254CosmoFlatchatter
I would have thought that even though “the standard by-law on parking was deleted when the by laws were updated in 2017”. The way they are parking is a ‘nuisance’ and denying you the quiet enjoyment of your property. Under both strata and common laws they can’t do that.
First you need to document the ‘nuisance’. These days, with everyone having smart phones that shouldn’t be hard. When it occurs. take a photo and make a note of the time, registration etc. Such evidence will be valuable if you have to take this further.13/10/2019 at 6:18 pm #43270Sir HumphreyStrataguru
I agree with Cosmo and was about to suggest the same. All strata legislation has catch-all provisions about no interfering with the reasonable use and enjoyment of the common property by other residents. If you can’t easily use a shared driveway because of vehicles parked so as to block the way, that is a nuisance and interference with your reasonable use of that common property.16/10/2019 at 3:47 pm #43414LaldyFlatchatterChat-starter
Thank you all very much. I used the information from these posts and now the strata manager has issued A Notice to Comply with a By-law to all in the building.17/10/2019 at 8:37 am #43439Colonel SchultzFlatchatter
In the case I mentioned above, the plaintiff did not get any damages awarded as was reported here.
That was covered by the member at 24 below;
I do not think that there is justification for the making of order 2. The applicant damaged her vehicle by her own attempts to get out of the car space. Although indirectly the need to do so has been occasioned by the circumstances involving the difficulties of exiting car space 4, the applicant nevertheless, on the particular occasion in question, chose to attempt to manoeuvre the vehicle out of the car space in a manner which she was aware was difficult. In that sense, it was her negligence and not any act or omission of the Owners Corporation which caused the damage…
Sending a notice to comply to the entire building is probably not right and raises a few questions, hopefully no handbags though!
17/10/2019 at 9:00 am #43454
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Ooops! I misread the findings in the original case – I’m blaming the flu – so thanks to Colonel Schultz for correcting that and I have now amended the story. I should have realised the the Tribunal rarely if ever awards damages.
As for the strata manger sending out Notices To Comply to all owners, I agree that it’s technically not the right thing to do, but it may be politically the most expedient move.
A Notice To Comply is effectively a warning that you have breached a by-law and there may be consequences if you continure to do so.
Thus, sending it to people who haven’t breached is a misuse of this official warning. However, given that members of the committee are among the culprits, it may be that rather than single them out, the strtata manager has managed to issue the wrning without compromising his relationship with the committee.
I am not in favour of warning being sent out before NTCs – the NTC is only a warning, after all – and issuing three warnings before you send an official warning, as some schemes do, is a piece of nonsense.
But this sounds like one case where a general warning to all owners would have been appropriate, followed by NTCs to the actual culprits.
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