17 October 2013

With summer approaching fast so is the desire to have a great summer barbeque outdoors, or should I say, on strata unit balconies.

Smoke from charcoal and woodfire barbeques can be more of a nuisance for some people than others, especially for occupiers who have breathing difficulties, asthma, children and the elderly.

Whilst one occupier may wish to enjoy a barbeque outdoors, another occupier may be suffering from fumes being transmitted into their own unit.

Section 117 of the Strata Schemes Management Act 1996 provides that an occupier of a lot must not use or enjoy the lot in such a manner as to cause a nuisance to the occupier of any other lot. Given the trend of decisions in the NSW Consumer, Trader and Tenancy Tribunal supporting the view that smoking cigarettes on balconies may constitute a nuisance, there is no reason why charcoal or other fumes and odour emitted from a barbeque on a unit balcony should be treated differently.

Also, there is nothing to stop an owner or occupier of a strata unit commencing legal proceedings in the courts against another owner or occupier in nuisance claiming damages.

To avoid unnecessary litigation between neighbouring strata occupiers, we recommend the owners corporation register a section 47 by-law restricting the use of charcoal or woodfire barbecues on selected balconies.

If you would like further information in respect to amending your strata by-laws, please contact our specialist strata lawyer Michael Pobi in Sydney on 8710 3420.

This year has seen an influx of compulsory strata managing agent applications before the CTTT.

Despite the increase, it is quite common for such applications to be fraught with difficulty and always need to be handled delicately from the beginning.

Section 162 of the Strata Schemes Management Act 1996 allows an Adjudicator to make an order appointing a strata managing agent to a strata scheme compulsorily if certain requirements are met in that section of the Act.

An order for a compulsory appointment will be made if an adjudicator is satisfied, in accordance with s162(3A), that one or more of the following is found:

the management structure of the strata scheme is not functioning or is not functioning satisfactorily; or
an owners corporation has failed to comply with a requirement imposed on the owners corporation by an order made under the Act; or
an owners corporation has failed to perform one or more of its duties; or
an owners corporation owes a judgment debt.

An Adjudicator may also give a compulsorily appointed strata managing agent the power to exercise all the functions or specific functions of the chairperson, secretary, treasurer or executive committee of the owners corporation. The following persons only have standing to apply for an order:
a person who obtained an order under the Act that imposed a duty on the owners corporation or on its executive committee, chairperson, secretary, treasurer and that has not been complied with; or
a person having an estate or interest in a lot in the strata scheme concerned.

In Jennifer Elizabeth James v The Owners Corporation Strata Plan No. SP 11478 (No 4) [2012] NSWSC 590, Justice Ball of the New South Wales Supreme Court examined the power of a compulsory appointed strata manager. Justice Ball found, at paragraph 39 of his reasons, that “if a function of the owners corporation is to be exercised by a strata managing agent pursuant to section 162 of the Strata Schemes Management Act 1996, that function is not exercised by the owners corporation itself and any requirement of a general meeting has no application”. In other words, the compulsory appointed strata manager is the owners corporation!

If you need advice or assistance with an application to appoint a compulsory strata managing agent, please contact our strata law specialist Michael Pobi of Pobi Lawyers on 8710 3430 or email at michael.pobi@pobilawyers.com

A retaining wall is a structure that supports excavated or filled earth on a property.

Dividing Fences Act 1991

Since 2008, under amendments to the Dividing Fences Act 1991 (NSW) (“DFA”), an adjoining
owner can seek a contribution for the carrying out of work to a retaining wall where the wall is
necessary for the support and maintenance of a dividing fence.

Law of Support – Conveyancing Act 1919

In New South Wales, land has a right of support. Formerly the law of nuisance applied to the
act of tampering with your land in a way that removes its support to other land. However, the
law of negligence now applies.

Under section 177 of the Conveyancing Act 1919 (NSW) (“CA”) a person has a duty of care
not to do anything on or in relation to land that removes the support to any other land. This
includes tampering with the soil surface, the subsoil, any part that is reclaimed land and even
the water beneath.
Section 177 of the CA allows a person to bring an action in negligence, that is, a breach of
duty of care, for damage caused by the removal of any natural support or structure that has
replaced that natural support.

Section 177 of the CA allows a person to bring an action in negligence, that is, a breach of
duty of care, for damage caused by the removal of any natural support or structure that has
replaced that natural support.

An express agreement between the parties can reduce or exclude the duty of care. If the
agreement is formulated and registered as an easement for removal of support relating to that
land, it can be binding on subsequent owners of the affected land.

Trees

The Trees (Disputes Between Neighbours) Act 2006 (NSW) (“Trees Act”) provides a much
cheaper and simpler method for resolving some of the tree disputes between neighbours than
the legal remedy that was previously available. Before the Trees Act, a common law action for
nuisance had to be taken. Now, an application can be made to the Land and Environment
Court of NSW for orders concerning a neighbour’s tree or trees that cause or are likely to
cause harm, or trees that form high hedges obstructing sunlight or views.
Under the Trees Act, the Court can order a range of actions to stop, prevent or remedy the
harm or obstruction. Failure to comply with an order can result in further proceedings and a
fine of up to $5,500. In addition, it can result in the local council carrying out the work required.

Author:

Michael Pobi
Pobi Lawyers
Suite 1308
109 Pitt Street
Sydney NSW 2000
T (02) 8710 3430
F (02) 8088 6265
E michael.pobi@pobilawyers.com
W www.pobilawyers.com

The strata and community title laws cover some 72,000 strata schemes and 1,500 community schemes, and it is estimated that up to one quarter of the state’s population live in or own a strata unit. By 2040, we anticipate that around half of Sydney’s housing stock will be multi-unit dwellings.  Surprisingly, a report from the City Futures Research Centre published earlier this year that found 85 per cent of owners surveyed living in apartment blocks built since 2000 had experienced building defects. Of those, 75 per cent said defects still existed.

A number of provisions of the Home Building Amendment Act 2011 (NSW) recently took effect which significantly alter the application of the Statutory Warranties.  Prior to the Amending Act, proceedings for breach of the Statutory Warranties could be brought within 7 years of the ‘completion’ of the work.

The Amending Act has amended this as follows:

• proceedings for breach of a Statutory Warranty which results in a ‘structural defect’ must be brought within 6 years from ‘completion’ of the building work;
• proceedings for breach of a Statutory Warranty which does not result in a ‘structural defect’ must be brought within 2 years from ‘completion’ of the building work;
• however, if breach of a Statutory Warranty becomes apparent within the last 6 months of the relevant 6 or 2 year period, proceedings may be commenced within a further 6 months after the end of the 6 or 2 year period.

This obviously represents a serious curtailment of the rights of unit owners in strata schemes as buildings built with defects must now have these defects discovered very soon after the construction of the work in order the litigation will be successful.

There is currently a review of the NSW Strata Schemes legislation.  This is because There are currently five separate Acts of Parliament and five Regulations that regulate strata and community schemes in NSW.  Parts of the law have been in place for 50 years and many people believe they are due for a complete review and update. A range of issues have been raised by owners, strata managers and others in the industry over recent years. Concerns raised include the process for making changes to common property, difficulties chasing up unpaid levies, overcrowding, illegal parking and deciding what is the common property to work out who is liable for repair work, to name just a few.

The Strata Laws Consultation questions were:

Q1. What are the main areas of the existing strata and community scheme laws you would like to see changed?

Q2. Can you see any future issues that need to be addressed in the legislation?

Q3. How could the management of strata and community schemes be improved?

Q4. Are there any changes needed to the way disputes in strata and community schemes are resolved?

Some of the conclusions of the report were that it was designed to foster participation from the wider community in the discussion of the future direction of strata laws in New South Wales.  It said that The range and variety of views  expressed, as well as participation statistics, indicate it was highly successful.  One of the highlights of the consultation was the organic conversation between participants, enabled by Open Forum’s email alert functionality, e.g. the ability to request an email if someone replied to your comment. This encouraged the refinement of statements, saw participants further develop solutions or elaborate on the issues, and overall created a strong sense of community engagement. In some cases, comments were community policed, with participants calling order to statements, agreeing with or defending their fellow commentators. Future consultations could have an authorised panel of experts who are responsible for responding to questions or issues raised by participants. This would further strengthen the ability for quality debate.

It will be interesting to see what the outcome of the review is and, if any, recommendations are made to parliament from the consultation process.  Hopefully the more problematic aspects of the law in New South Wales will be changed to allow for a more harmonious operation of the strata law system.