Flat Chat Forum Common Property Current Page

  • Creator
    Topic
  • #53079
    AvatarEnterSandman
    Flatchatter

    I was wondering what advice could be given to a strata committee who has an owner who refuses to remove a camera from their common property door?

    The said owner had previously installed a camera on a common property wall, removed this at the request of the EC and has now installed a camera that acts as a peep hole/camera. It is not discreet and changes the appearance of the door and was installed without any approval.

    We have already applied to NCAT and the submissions made by the owner against the removal were conveniently lodged without us receiving them in time via post before the hearing. The case has now been adjourned to a full hearing.

    The member has advised we need to make a “legal argument”. I understand the individual wishes to have a camera for their own safety, however there is a right and wrong way of going about this. I would have thought that any by law stating that altering common property without the approval of the committee is enough to have NCAT order its removal?

    He has also been asked to not film during day light hours as per the order. Do we just have it removed by a third party when it is not being used? We will surely know if the order has then been followed.

    • This topic was modified 2 days, 4 hours ago by .
Viewing 8 replies - 1 through 8 (of 8 total)
  • Author
    Replies
  • #53385
    Avatartina
    Flatchatter

    @webman

    It’s not about getting free security surveillance from a neighbour.  We had an owner, who used the unlawfully installed security camera to cherry pick bits of footage and use them as evidence for an Apprehended Personal Violence Order application against a neighbour.  (The application was dismissed.)

    The owner of the security camera was frequently violating by-laws and making life unpleasant for the neighbours.  All of this would have been captured on the video stream.  The owner would never be obliged to show self-incriminating footage to the police because they own the security camera.

    If you really want to have security cameras, they must be owned by the owners corporation.  This article from Kerin Benson Lawyers touches on the need to have a policy of restricting access to that video feed.  If that material is not secured, anyone could be watching footage of our children.

    #53271
    Avatarwebman
    Flatchatter

    While I don’t know the specifics of your situation, everyone seems to think that the existence of security cameras is the end of the world and privacy forever. However, often security cameras are installed specifically to improve the security of the premises (either via deterrence, or via prosecution after the fact). Have you considered whether the owner might be willing to fund the purchase and installation of a OC owned security camera on common property to help with all owners of the building (or area of the building)? Doing it this way causes the OC to be responsible for future maintenance/repairs, but also adds benefit to other owners, in addition, it limits the loss of privacy given the added restrictions the OC can impose on access to the recordings.

    I really want a lot more CCTV installed through the car park and other common areas, but costs are such that it really isn’t a priority. However, if someone else wanted to fund it, then I’d be very happy with that result.

    Just my 0.02c….

    If you really want to prevent this current issue, then I would go with the fire rating of the device, I know more than one lot in my OC that has been forced to replace the door due to installing these peepholes for this reason.

    #53232
    Avatartina
    Flatchatter

    Hi EnterSandman

    Here are two cases you should read:

    Ghabour v The Owners – Strata Plan No. 53284 [2019] NSWCATCD (26 February 2019)
    Lai v Community Association DP 270214 [2016] NSWCATCD 58;

    Here’s an article published last year by JS Mueller & Co about the installation of security cameras on common property.   NCAT member’s name for both cases is Scott A McDonald.

    I was involved in the successful removal of security cameras installed on an external wall.  Breach of Section 108 of SSMA 2015 and Surveillance Devices Act.

    In your case, it seems the camera is located inside the lot but attached to the front door.  The front door is still common property.  In my case, the lawyer for the camera owner argued about “air space”.  He tried to say that even though the camera was affixed to common property, it was in the lot’s “air space”.  The member kept reminding him it is attached to common property.

    I would be really interested to know how you go.  Good luck.

    • This reply was modified 1 week, 2 days ago by .
    #53141
    Jimmy-TJimmy-T
    Keymaster

    NCAT is set up for lay people to resolve grievances, without having to pay unaffordable legal fees.

    It WAS set up that way, that’s true, and you have to apply for permission to be legally represented, but it is becoming more common as (I’m told) Members find that they are having to instruct unrepresented plaintiffs and defendants on basic strata law, just so they can hear cases on their merits.

    Here’s an NCAT fact sheet on representation, either by supporting parties or by lawyers.

    #53127
    AvatarEnterSandman
    Flatchatter
    Chat-starter

    Thank you again for your time in providing some great advice.

    It is disappointing we have to go down this road, however we are most certainly going to engage a lawyer to prepare and attend the hearing. Wouldn’t a by law against serial pests be nice! None the less, we agree with you and will leave the arguing to the lawyer and hopefully get the outcome we are after and in line with our bylaws.

    #53126
    AvatarJonathanR
    Flatchatter

    There’s not much to add further, given the quality of the advice so far.  In addition to the obvious laws quoted previously, no changes can be made to the integrity of the Fire-rated Door. Spy holes that have been installed must be approved fire rated products that won’t
    compromise the fire rating of the door.  Even if this was the case, the legislation has been breeched in regards to Strata Law.  A compromise would be that they have an intercom professionally fitted with the permission of the OC, which does not need a camera but enables vetting, and therefore does not breech privacy of residents.  I’m assuming they don’t have one.  In terms of a ruling, the NCAT member does not bring the law to the argument.  That is the job of the parties.  You need to quote the relevant sections that support your argument.  Then the Member will review both written arguments in terms of the identified law and make a ruling.  Members must follow statutory law.  Statutory law takes precedent over common law.  Make the Member’s job easy and present the relevant strata law sections clearly and logically with your argument of how it is relevant to the situation.  This is exactly what a lawyer will do, but you may not have the funds for a lawyer.  NCAT is set up for lay people to resolve grievances, without having to pay unaffordable legal fees.

    #53118
    Jimmy-TJimmy-T
    Keymaster

    By the way, I suspect the Member is asking you to give him something he can rule on, rather than asking him to judge a beauty contest.  Don’t say, as a typical example, “this owner is a serial pest who knows he’s doing the wrong thing but does it just to annoy us …”

    Keep personalities out of it.  Nail the law and the Member will hammer the miscreant.

    #53087
    Jimmy-TJimmy-T
    Keymaster

    I have to preface this by pointing out that the following is my opinion and doesn’t constitute legal advice. If the NCAT member wants legal arguments, you should employ a strata lawyer and seek related costs at the tribunal.

    In my view, there are two issues here, and I’m assuming the spy-hole is a recent addition.  The first is the unapproved changes to common property, the other is the  installation of the camera covering an area where privacy is expected and, more critically, employees may be working.

    Section 108 of the Act requires special resolutions to be passed by the owners corporation before changes are made to common property.  This clearly hasn’t happened in this case.

    Even if the spy-hole was there before, the inside of the door is common property so attaching a camera to it could be a breach.

    Section 108 also states that without a by-law saying otherwise, responsibility for maintenance of the changes rests with the owners corporation.

    Section 110 allows for minor alterations to be approved without needing a special resolution (just a general resolution) but they have to be approved by the owners corporation.

    Camera and spy-holes are not listed among the permitted changes and, in any case,  section 7(c) excludes changes to the external appearance of a lot (which a spy hole in a door would be).

    More specifically, section 111 of the Act states

    An owner of a lot in a strata scheme must not carry out work on the common property unless the owner is authorised to do so:  (a) under this Part, or (b) under a by-law made under this Part or a common property rights by-law, or (c) by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws.

    In terms of building surveillance, your common property will at times be a workplace, for cleaners and the occasional tradie.  This website says that, under the NSW Surveillance Act 2005, notices must be placed in work areas covered by cameras.

    It is a subtle point whether or not this only applies to employers but, since the owners corp might be the employer and the owner is a member of the owners corp, it may be applicable.

    I think you have enough legal leverage to require this owner to remove the camera and repair the door.

    There is also the question of the external appearance of the spy-hole (if it is a recent addition) giving people the sense that the building is insecure, alarming residents and putting off potential purchasers and tenants, thereby affecting the value of the entire block.

    Again, I would talk to an experienced strata lawyer and hope you can recover the costs.

    • This reply was modified 2 weeks, 2 days ago by .
Viewing 8 replies - 1 through 8 (of 8 total)
  • You must be logged in to reply to this topic.

Flat Chat Forum Common Property Current Page