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  • #56136
    Ozzietars1992
    Flatchatter

    Can an OC legally take over the responsibility for testing and maintenance of smoke detectors from owners?

    Our small 40 year old NSW property is a class 1a building with 50% of lots tenanted. A recent free testing of smoke detectors in 60% of all units by the fire brigade required 90% of those to either have batteries or the device replaced. Not having up to date fire protection is potentially an issue with insurance cover in the event of a fire.

    Our strata committee would like assurance on this issue but it seems we have no mechanism to receive verifiable proof that property managers in particular, as well as resident owners, are fulfilling their responsibility to test and maintain smoke detectors in accordance with NSW fire safety regulations.

    So our strata committee wishes to put a motion to our upcoming AGM that OC annually engage a fire protection service company to service our smoke detectors. However, as a class 1a building, NSW regulations brought in 2017 do not require us to have a fire safety schedule or annual fire safety certification so we seem to have no legislation to rely on for OC to assume responsibility from owners or their property managers. Is there any legislation preventing OC from assuming responsibility?

    Can anyone correct or add to the above please?

    • This topic was modified 3 weeks, 1 day ago by .
Viewing 6 replies - 1 through 6 (of 6 total)
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  • #56205
    Ozzietars1992
    Flatchatter
    Chat-starter

    Thanks all for your interesting and helpful responses. It does seem that a by-law is what we need and if the AGM agrees we’ll probably purchase OCN’s pro forma by-law.

     

     

    #56176
    Jimmy-T
    Keymaster

    If using section 122, one needs to be careful that the action is lawful, even if there is a bylaw. Trespass is a serious offence.

    Funnily enough, I would never envisage Section 122 actually being used.

    You’d pass a by-law saying everyone needs to have their smoke alarms tested, cite 122 as legal grounds for being able enter owners apartments if they refused or were unmotivated to comply, and hope no one saw the potential flaw in the logic – that the by-law might not be valid.

    Sure, you’d get some bush lawyer in the block who would add this to their anti-vaxxer, anti-masker campaigns, but if 90 per cent of owners went along with it, you’d be happy to let the “rebels” feel they’d won another victory against “the man”.

     

    #56169
    kaindub
    Flatchatter

    I agree with most of JT reply.

    My stance in my first reply was to try and say that whilst by-laws are an effective tool In strata, they need to be used judiciously.

    If a non by-law way can’t be used to convince owners to fit working smoke alarms, then the application of  bylaw can lead to lawyers at 20 paces. For me its just  common sense to have them fitted and working. But sense is not so  ommon sometimes.

    And yes some strata managers propose bogus by laws

    If using section 122, one needs to be careful that the action is lawful, even if there is a bylaw. Trespass is a serious offence.

    #56157
    Jimmy-T
    Keymaster

    This is my personal take. I accept that others may vehemently disagree.

    I disagree with some of your response, but not vehemently

    … smoke detectors are there to save lives not property. Therefore the risk to property is neither less nor more, without a smoke detector.

    The risk is the same regardless of the intended purpose of the smoke detector.  Smoke detectors alert people to fires, the sooner that occurs, the less damage will be done to the property.

    The question is, should the OC be concerned about the effect on other lots and residents of a fire in one lot.  The law implies not, but that doesn’t mean that other owners can’t or shouldn’t.

    The Bylaw proposed by JT could be unenforceable.

    Perhaps, but I’m looking at Section 122 which says “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 (a)  work required or authorised to be carried out by the owners corporation in accordance with this Act  …”

    One of the take outs of the Cooper dog case, is that the OC cannot regulate the use of an owners lot. What one does behind closed doors is owners business.

    Well, no, that’s not what the Cooper case said.  It was resolved that strata schemes can’t have blanket by-laws that don’t allow for any variation or consideration of the circumstances of specific cases.  As you’ll see from this story, a Tribunal subsequently allowed dogs to be banned, rather than all pets.

    What you do behind closed doors may be no one else’s business, but only in so far as it doesn’t affect other owners or common property.  You still can’t play your stereo at maximum volume all day, or renovate without notice or, in some cases, permission.

    But let’s assume you are right and my suggested by-law is “unenforceable”? The only way to establish that is to breach an owner and let them challenge it at NCAT.

    In my experience, most people will assume that an OC-dictated inspection of smoke alarms is generally a good thing (if irritating at the time) and go along with it, regardless of whether the by-law is technically valid or not (and I’m not convinced it isn’t).

    If we agree that having smoke alarms is a good thing, wouldn’t the potential “encouragement” for the majority of people be worth the risk of losing a case at NCAT.

    One final point, this website is replete with stories about strata lawyers and managers approving deterring by-laws that they must know would never stand up in court, but assuming they are unlikely to be challenged.  Sometimes the end justifies the means.

     

    • This reply was modified 3 weeks ago by .
    #56152
    kaindub
    Flatchatter

    This is my personal take. I accept that others may vehemently disagree.

    Firstly there is no Insurance issue. I hear people too often site this to justify their actions.

    Since the building is. Class 1a it’s up to the owner to install smoke detectors. There is no legislation commanding the OC to take this on. It’s an offence to not have a working smoke detector installed in a rental property, but that comes under a different act. If the property is not rented it’s recommended to have a smoke detector, but retrofitting them to older properties is not required.

    Since the maintenance of smoke detectors in this building is out of the control of the OC, there is no effect on the strata insurance. And in any case smoke detectors are there to save lives not property. Therefore the risk to property is neither less nor more, without a smoke detector.

    Secondly, the Bylaw proposed by JT could be unenforceable. One of the take outs of the Cooper dog case, is that the OC cannot regulate the use of an owners lot. What one does behind closed doors is owners business.

    Thirdly, you want to consider whether you want to start yearly fire inspections. Being an older building, there may be aspects of the build which met the fire regulations when built, but may need upgrading . That can be a very expensive exercise . For what? satisfying your pet peeve?

    #56150
    Jimmy-T
    Keymaster

    Our strata committee wishes to put a motion to our upcoming AGM that OC annually engage a fire protection service company to service our smoke detectors. However, as a class 1a building, NSW regulations brought in 2017 do not require us to have a fire safety schedule or annual fire safety certification so we seem to have no legislation to rely on for OC to assume responsibility from owners or their property managers. Is there any legislation preventing OC from assuming responsibility?

    First of all, for the benefit of our high-rise dwelling readers, a Class 1a building is, according to government websites, “a single dwelling being a detached house, or one of a group of two or more attached dwellings, each being a building, separated by a fire-resisting wall, including a row house, terrace house, town house or villa unit.”

    The simple answer to the inspection question is to pass a by-law (requiring 75 per cent of votes cast at a general meeting) that says every lot should allow access once a year for inspection by an accredited fire safety professional.

    The by-law should include provisions such as the minimum number of days’ notice to lot owners and allowance for a “call-back fee” payable by owners who don’t allow or arrange access.

    Owners who refuse to ever allow or arrange access would be subject to standard Notices To Comply and potential fines from the Tribunal for breaching the by-law.

     

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