Tribunal Confirms its Jurisdiction to Award Damages for Breach of Statutory Duty

Ellen WoffendenOctober 3rd, 2017

In an August 2017 decision, the NSW Civil and Administrative Tribunal has confirmed its jurisdiction to award damages for a breach of the Strata Schemes Management Act 2015 (NSW). Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 (29 August 2017) concerned the duty that an owners corporation has under section 106(1) of the Strata […]

A nuisance for Owners Corporations: damages awarded to lot owner

Natalee VenegasOctober 2nd, 2017

In February this year, we reported on the case of McElwaine v The Owners- Strata Plan No 75975 [2016] NSWSC 1589. To remind you of the facts, lot owner McElwaine pursued his Owners Corporation in a common law claim of nuisance, after alleging that his lot was damaged by water penetration caused by defective waterproofing. McElwaine […]

Balustrades and BCA requirements – when repair becomes upgrade

Amanda FarmerApril 28th, 2017

In Lipscher and Ors v The Owners – Strata Plan No 30995 [2017] NSWCATCD 2 (5 January 2017) three lot owners successfully challenged an owners corporation’s decision to replace balcony balustrades at the property. The decision to replace the balustrades was made via an ordinary resolution in a general meeting. The lot owners complained that a special […]

Proxy Farming Under the New NSW Strata Law

Savina YangApril 27th, 2017

What is proxy farming? If you happen to live in a strata title property, you may have heard of “proxy farming”, “proxy harvesting” or “stacking votes”. These terms all describe a process whereby one or more owners (a.k.a. the proxy farmers) of a strata scheme approach or persuade other owners, who are generally less active […]

How to enforce by-laws under the new strata law

Bianca BarryMarch 30th, 2017

The by-laws of a strata scheme are binding upon lot owners and occupiers alike (see section 135 of the Strata Schemes Management Act 2015 (“Act”)). If a lot owner or occupier breaches one or more of a strata scheme’s by-laws, the owners corporation has the ability to take steps to enforce those by-laws.   In […]

What a nuisance: the effect of strata legislation on common law claims

Bianca BarryFebruary 28th, 2017

The case of McElwaine v The Owners- Strata Plan No 75975 [2016] NSWSC 1589 was decided under the Strata Schemes Management Act 1996 (“Old Act”), which has now been repealed.   McElwaine was a lot owner who alleged that heavy rain caused severe damage to his unit through water penetration from the common property. McElwaine […]

Fraud and Indefeasibility of title

Savina YangNovember 30th, 2016

Torrens title is a system of land registration, in which a single register is used for each land holding and records all details and interests affecting that land, such as easements, mortgages, caveats etc. This is the system we have been using in Australia since the 1850s. Pursuant to section 42 of the Real Property Act 1900 (NSW) the […]

No More Strata Adjudications

Bianca BarryNovember 30th, 2016

Under the new Strata Schemes Management Act 2015 which commences today, 30 November 2016 (“New Act”), the process of strata adjudication has been done away with. Instead, all strata applications will be determined in hearing by the NSW Civil & Administrative Tribunal (“Tribunal”).   Under the Strata Schemes Management Act 1996 (“Old Act”), applications for […]

Abandoned Goods and Illegally Parked Motor Vehicles on Common Property – NSW Strata Law Reforms

Savina YangOctober 29th, 2016

In one of our previous articles, I highlighted the difficulties faced by an owners corporation trying to deal with motor vehicles parked illegally on common property. Fear not strata dwellers: the owners corporation will soon have an avenue available to it to remove these vehicles, under the new Strata Schemes Management Act 2015 and the […]

Smoking in Strata – NSW Strata Law Reforms

Savina YangSeptember 28th, 2016

In November 2015 we discussed a case where a landlord was ordered to pay $11,000 in compensation to his tenant when the unit was declared unsuitable for habitation due to the smoke that had drifted in to the unit from a chain-smoker downstairs. At the time when this case was determined by the NSW Civil […]

Renovation Works – NSW Strata Law Reforms

Savina YangAugust 30th, 2016

The new Strata Schemes Management Act 2015 (NSW) (“Act”) and the Strata Schemes Management Regulation 2016 (NSW) (“Regulation”) will commence on Wednesday, 30 November 2016. The new law has introduced a more simplified approval process for lot owners who want to carry out certain renovation works at their lots. In today’s article, we will explore the […]

Wheel clamping: what’s the deal?

Savina YangJune 30th, 2016

You may have heard through the grapevine that wheel clamping by an owners corporation is a big no-no, but is that really true? Does this mean the wheel clamping by-law at your strata scheme is unenforceable and is only as good as a toothless tiger? To answer the above questions, it is important to consider […]

Potential changes to qualifications in the property industry

Natalee VenegasJune 29th, 2016

Did you know that the person who makes your coffee each morning may have undergone more training to get their job than your local real estate agent? John Cunningham, President of the Real Estate Institute of NSW (REINSW) made headlines last month when he said “It actually takes more training to become a barista than […]

Tenants in Strata – summary of the NSW law reforms

Amanda FarmerJune 29th, 2016

Here are four ‘need-to-know’ items arising from the NSW strata law reforms (set to take effect at the end of this year), specifically relevant to tenants: Item 1 – notices of general meetings The owners corporation of a strata scheme where any lots are occupied by tenants must, at least 7 days before any general meeting: […]

To record or not to record? A strata living dilemma

Hallie WarnockJune 29th, 2016

Nowadays, almost everyone has a smart phone which can record conversations at the press of a button. The dilemma of whether to ‘record or not to record’ sometimes arises for strata owners in the context of a strata meeting. During strata meetings (whether annual general meetings, extraordinary general meetings or committee meetings), important matters are […]

Buyer beware: new requirements for real estate transactions over $2m

Bianca BarryJune 29th, 2016

On 25 February 2016 legislation was enacted to amend the Taxation Administration Act 1953.  The amendments introduce a new capital gains tax withholding scheme for certain taxable Australian assets (“Scheme”), including real estate.  The purpose of the Scheme is to assist in the collection of foreign residents’ capital gains tax. The Scheme applies to contracts for […]

New swimming pool regulations: a floaty for apartment and free-standing home owners

Natalee VenegasApril 28th, 2016

There is something quintessentially Australian about relaxing around a backyard swimming pool on a hot summer’s day. Unfortunately, drowning is the third leading cause of unintentional death amongst children and youth, and in high-income countries like Australia, most of these drownings happen in swimming pools (WHO Children and Drowning Report).   The Swimming Pools Act […]

New off the plan provisions tested for the first time

Bianca BarryMarch 31st, 2016

In November I wrote about the Conveyancing Amendment (Sunset Clauses) Bill 2015 (“Sunset Clauses Bill”) which rid the Conveyancing Act 1919 (“Act”) of the sunset clause loophole.   The new section 66ZL of the Act provides that a developer may rescind an off the plan contract under a sunset clause in circumstances where:   The buyer consents […]

The boy who cried “defamation!”

Hallie WarnockMarch 31st, 2016

At one point, Sydney was the defamation capital of the world, which is not hard to believe when it seems as though everyone is ready to cry “defamation” at any and every comment. However an action in defamation is not that simple.   What is defamation and what does the law actually protect? Does it […]

Should juries be reintroduced for civil trials?

Natalee VenegasMarch 31st, 2016

Last month, the NSW Bar Association, through its president Noel Hutley SC, called for juries to be reintroduced in civil matters in NSW.   While juries have previously been used in civil matters, section 85 of the Supreme Court Act 1970 (NSW) and section 76A of the District Court Act 1973 (NSW) were amended in […]

New ban on excessive credit card surcharges

Bianca BarryFebruary 28th, 2016

On 22 February 2016 the Commonwealth Parliament passed the Competition and Consumer Amendment (Payment Surcharges) Bill 2016 (“Bill”).   The purpose of the Bill is to amend the Competition and Consumer Act 2010 to ensure that payment surcharges are not excessive and reflect the actual cost of using the payment methods for which they are […]

Dividing fences in disrepair: which neighbour has to pay?

Hallie WarnockJanuary 28th, 2016

If two neighbours share a fence and it is in need of some fixing up, who has to pay? Is one neighbour completely liable for the costs? What happens if a fence is dangerous and one neighbour is refusing to pay? Are any legal actions available to make the other neighbour pay? These questions and […]

Buying off the plan – part 3

Bianca BarryNovember 29th, 2015

In September I wrote about the risks of buying off the plan. Last month I reported on the case of Wang v Kaymet Corporation, in which a group of off the plan buyers was caught out by a sunset clause. This month, the Parliament of New South Wales passed the Conveyancing Amendment (Sunset Clauses) Bill 2015 to rid […]

Failing to be clear is fatal in litigation

Amanda FarmerSeptember 30th, 2015

In APX Projects Pty Limited v The Owners Strata Plan No. 64025, a lot owner attempted to:- argue that a large payment made to settle debt recovery proceedings should have been allocated to sinking fund levies rather than outstanding legal fees; and bring an action against the treasurer, on behalf of the owners corporation. The owner failed […]

Strata levy recovery: the requirement for expenses to be reasonable, but not proportionate

Amanda FarmerAugust 31st, 2015

The NSW Supreme Court has reminded us of the requirement for section 80 levy recovery expenses to be ‘reasonably incurred’ and ‘reasonable in amount’. If there is any doubt, costs will be referred for assessment. IIB Australia Pty Ltd v Owners Strata Plan 76024 (No 2) [2015] NSWSC 929 (16 July 2015) was an appeal […]

Asbestos in strata: a reminder of your obligations

Amanda FarmerAugust 31st, 2015

Since 1 January 2012, all strata buildings containing a common property workplace built before 1 January 2004 must comply with certain legislative requirements relating to asbestos. In summary, these requirements relate to (a) the identification of asbestos (b) the creation of an asbestos register and (c) the creation of an asbestos management plan. The relevant […]

Summary of strata law reforms

Bianca BarryJuly 31st, 2015

This month, the New South Wales government released for public consultation the draft Strata Schemes Management Bill 2015 and Strata Schemes Development Bill 2015. The drafts are the culmination of 5 years of efforts to reform strata laws and the first major proposed reform since the legislation was introduced in 1973. As yet, no date […]

Voting on behalf of a corporate lot owner

Bianca BarryJune 29th, 2015

A corporate strata lot owner is entitled to appoint a company nominee to vote on its behalf at general meetings (Sch 2, cl 10, Strata Schemes Management Act). That person must be shown on the strata roll. What if that person is unavailable to attend a meeting? Can they then appoint someone to vote on […]

Resolving not to repair and maintain common property? Don’t forget the exclusive use by-law

Amanda FarmerMay 27th, 2015

In Owners Corporation SP 32033; Patrick and Valerie Mullins [2015] NSWCATCD 23 (27 February 2015) the NSW Civil and Administrative Tribunal upheld an Adjudicator’s order declaring a special by-law invalid. The by-law in question recorded a resolution by the Owners Corporation not to maintain external common property windows. The by-law purported to place the obligation […]

Same sex marriage: what Australia can learn from the United States

Hallie WarnockMarch 17th, 2015

On Thursday 12 March 2015, Cardozo School of Law Professor Edward Stein gave a lecture on same sex marriage rights in the United States and what Australia can learn from them on its own path to equality. This article was inspired by Stein’s speech. For more information on Professor Stein and his speech ‘What can […]