Flat Chat Forum Two-unit strata Current Page

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  • #10351
    AvatarHamish
    Flatchatter

    I naively purchased a villa in a two lot Strata Plan in 2012.  My building inspection indicated possible termite damage.  The vendors were the executors of a deceased estate.  Their solicitor gave me written permission to repair the damage.  I proceeded with the purchase. I then had verbal approval from the other owner to repair the damage.  When the gyprock was removed I had to replace the external stud frames of three bedrooms.  The bill was $4885.  I also had to replace the back boundary fence which was dilapidated and falling down in sections. My strata plan neighbours paid their half. I paid the balance.I am asking the Owners Corporation for payment of half of my costs.

    The Owners Corporation has not had a meeting since 1995. There has not been an administrative Fund or Sinking Fund since 1995.  There is no explanation for whereabouts of funds balances as of cessation of self management in 1995. The villas were under insured by $270,000 until I suggested the amounts insured werinadequate.                                         

    I am referred to by my neighbour as money grabbing and toxic.  I have a mediation session shortly.  Adjudication resulting in an appointed strata manager has been a failure. They took three months to call an AGM.

    How do I recover my money?

Viewing 6 replies - 1 through 6 (of 6 total)
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  • #26267
    AvatarCamRob
    Flatchatter

    first off I’m sorry to hear things have gotten complicated like this. I’m just wondering if all of this could have been avoided if the terms and conditions for repairs could have been outlined before purchase of the property since the damage was noticed before finalising the sale? If so, what could have been done and how specific would one need to be in order to make sure that the lines are extremely clear on who actually needs to pay for what? 

    #24612
    AvatarWhale
    Flatchatter

    James – I can’t help wondering how it is that a Strata Managing Agent who was statutorily appointed following your Application to the Tribunal attended mediation presumably in support of the other Owner (?).

    Anyway, Sect.62 of the NSW Strata Schemes Management Act (SCMA) requires that Owners Corporations (O/C) properly maintain and repair common property, that in the circumstances that you’ve describe yours didn’t do, because you arranged for some repairs yourself, it would seem without prior written consent from anyone who was empowered to provide it.

    So have a look at Chapter 5 of the SCMA and particularly Part 4, and see if you can find any provision under which the Tribunal can Order an O/C to reimburse an Owner in the circumstances described (above), and particularly so where any consent of the former would likely have required a special resolution that the Tribunal may require an O/C to vote upon in that way after the fact, but cannot itself rule upon or make an Order that would bring into effect the same outcome as such a vote would if properly resolved. 

    Then… perhaps consider who will be funding the O/C’s costs to attend the Tribunal, and the fact that it rarely (if ever) awards costs to either party.

    Then… think about a second legal opinion!

    #24611
    AvatarHamish
    Flatchatter
    Chat-starter

    Thank you for your advice.  I had legal advice yesterday to take this matter to adjudication under section 62 outlining my claims for monies expended on common property issues.  The back fence would also come under this category not the Fences Act.

    I also have the appointed strata manager working in collusion with the other owner as was abundantly clear at mediation this week.  They kept looking at each other and rolling their eyes and flicking their necks as I put my case.  I am now referring the matter to strata lawyers to deal with the matter.

    #24608
    AvatarWhale
    Flatchatter

    James – the best outcome for you would in my opinion be for mediation to result in your adjoining lot owner agreeing to reimburse the approx. $3K that represents 50% of the costs that you incurred to attend to works that would otherwise be the responsibility of the Owners Corporation (O/C).

    Otherwise, I don’t believe that you could take the matter to the NSW Civil & Administrative Tribunal (NCAT) due to its statutory appointment of a Strata Managing Agent, who in both legal and practicle terms is now the O/C of your Plan.

    So unless the NCAT’s terms of appointment for the Strata Managing Agent specifically sets out what’s required of them, and that would be unusual, then they have carte blanche to, without prior referral to you and your neighbouring lot owner, do whatever they consider is necessary in order to bring your O/C into compliance with the Act with or without a formal General Meeting.

    Despite your objectives, that I can appreciate, the Strata Managing Agent’s objectives likely won’t be limited to setting contributions at a level that they consider is sufficient to raise the required funds to properly maintain the common property, as after all an O/C’s responsibilities go far beyond that.

    I hope that gives you some insight to the situation that you’ve stumbled into, albeit with the best of intentions and encouragement from worthless permissions and verbal approvals.

    So how best to proceed?

    As I said successful mediation is the best outcome, but if that doesn’t eventuate or if your neighbour renigs, then I’d approach the Strata Managing Agent with a formal /written request for entire cost of O/C works for which you alone have paid to be recorded as a credit towards your future contributions (levies).

    That’s somewhat complicated I agree, but less so than the Strata Managing Agent, who remember IS the O/C, automously determining to raise those same funds and more from the proprietors of the Plan in circumstances where one of those (i.e. you) has already paid some of those.

    In conclusion, I’ve probably painted a worst case scenario with regard to how a statutorily appointed Strata Managing Agent can elect to perform their duties, when how yours may act could depend upon a number factors including how much work’s on their table, how much of a mess your Plan’s in, how many of your O/C’s functions are out of control, and how urgently all of those need to be reigned-in.

    #24607
    AvatarHamish
    Flatchatter
    Chat-starter

    Whale thank you for your response. I answer your four questions as follows;

    1. I have paid the full amount of the cost of the back boundary fence and the repairs of the termite damage. Namely $6065.00.  I am asking the owner of the adjoining villa on my Strata Plan to pay half that amount  namely $3032.50. The adjoining neighbours of two different properties have paid their half of the fence.

    2. My scheme has been run by the same person since 1989.  She dispensed with meetings, administration and sinking funds to become “self managed” to save money.  She said her then neighbour agreed to this arrangement.  It is a case of my way or the highway.  The only shared expense was insurance on the two separate villas.

    3. A strata manager was appointed by an Adjudicator after I made an application to NCAT claiming the Owners Corporation was dysfunctional.  The managing agent was appointed on November 2 for 12 months. We have yet to have a meeting.

    I am hoping to create a working Owners Corporation which addresses the strata laws of New South Wales.  This OC will be responsible for the maintenance of the common areas.  I also wish to get back the $3032.50 that is owed to me for replacing the back boundary fence and repairs of the common walls of my villa.

    I would appreciate your comment and advice.

    #24598
    AvatarWhale
    Flatchatter

    James – I’m inclined to agree with you about your decision to purchase being naive, as was your decision to undertake and pay for any works that should have been paid for from funds held in your Owners Corporation’s (O/C) accounts.

    The easiest answers first…….

    1. Regarding the sinking fund (or the probable absence thereof), a two (2) lot scheme is exempted from having a sinking fund if the buildings comprising each of the lots are physically detached, and each building is contained wholly within the boundaries of its lot, and the O/C (i.e. the two owners) has unanimously resolved at a General Meeting not to have that fund, and;
    2. That same criteria applies to the requirement for an O/C to hold building insurance, so it could be that under-insurance is not an issue in your situation if the above has been unanimously resolved, and;
    3. There’s no requirement for a two (2) lot scheme to have its accounts audited.

    Now I’m a little confused about who it is that you expect to pay half of your costs particularly in circumstances where the O/C, who you indicate may have some funds in its accounts, is in fact you and your neighbouring owner.

    So I have some questions to assist in further responses by me and others:

    1. What half of your expense has been paid – for the back boundary fence, for the gyprock, or both, and does your reference to “my strata plan neighbours” mean those in the adjoining villa or in a different property on the other side of the back boundary fence?
    2. Who if anyone took over the management of your scheme after the cessation of self-management in 1995?
    3. Is there currently a strata managing agent for your scheme; it sounds like one was compulsorily appointed, and if that’s the case what were the terms of any appointment and is it ongoing?
    4. What exactly are you hoping to resolve post mediation?
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Flat Chat Forum Two-unit strata Current Page