NCAT: You Can’t Talk Your Way Out of By-laws

Ellen WoffendenOctober 26th, 2017

A recent decision from the NSW Civil and Administrative Appeal Panel has emphasised the importance of having a basic understanding of how the law impacts your strata scheme. Eadie v Harvey [2017] NSWCATAP 201 (18 October 2017) concerned a two lot strata scheme and the use of a driveway which was partly common property, partly the property […]

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 […]

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 […]

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 […]

No obligation on landlord re tenant’s quiet enjoyment

Natalee VenegasOctober 29th, 2016

In the recent decision of Abdel-Messih v Mao [2016] NSWCATAP 223, the NSW Civil and Administrative Tribunal found that a landlord was not liable for a third party’s actions disrupting the ‘quiet enjoyment’ of a tenant. Mr Abdel-Messih (‘tenant’) entered into a residential tenancy agreement with Mr Mao ‘(landlord’). Mr Abdel-Messih sub-let the premises (a strata lot). […]

The difficulty of repealing an exclusive use by-law

Savina YangFebruary 28th, 2016

In order for an owners corporation to repeal an exclusive use by-law that confers on the owner of a lot, or the owners of several lots, certain rights or privileges to use a part of the common property, section 52 of the Strata Schemes Management Act 1996 (“SSMA”) requires the written consent of the owner(s) […]

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 […]

Landlord fined $11,000 for smoking neighbour

Natalee VenegasNovember 29th, 2015

The NSW Civil and Administrative Tribunal Appeal Panel has upheld a decision to order a landlord to pay a tenant over $11,000 in compensation, declaring a unit that was permeated by smoke from a smoker downstairs was unsuitable for habitation. This is an important case because the landlord was liable for compensation even though the […]

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 […]

When the law is on your side

Savina YangSeptember 30th, 2015

In a previous article we set out the various options available to an owners corporation to enforce its by-laws. Recently, we acted in a matter where the Owners Corporation successfully undertook enforcement action against a lot owner who was in breach of a flooring by-law. The lot owner had installed hard flooring without the Owners Corporation’s […]

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 […]

Appealing to the Tribunal? Don’t miss the deadline

Amanda FarmerMarch 17th, 2015

Amended provisions in the Strata Schemes Management Act which came into effect 1 January 2014 were recently put to the test by Lawyers Chambers before the NSW Civil and Administrative Tribunal (“NCAT”). In the case of Malcolm Patrick and Margarita Patrick v The Owners-Strata Plan No 9079 [2014] NSWCATCD 232 (2 December 2014), the NCAT […]

Is your strata scheme dysfunctional?

Savina YangOctober 31st, 2014

You may have heard of the television sitcom Arrested Development. It’s about a man called Michael Bluth who tries to do the right thing and strives to keep his family together, despite his highly manipulative and materialistic parents, attention seeking twin sister, socially inept little brother and highly unreliable older brother. And how could we forget Tobias Fünke, his brother-in-law who is a self-diagnosed ‘never-nude’ (which is ‘exactly what it sounds like’).

What are unit entitlements and can they be changed?

Savina YangJuly 30th, 2014

If you are an owner of a strata lot, chances are that you may have come across the words “unit entitlements”. So what exactly are unit entitlements? When a strata plan is registered, each lot within the strata scheme is given a unit entitlement which is like a shareholding in the owners corporation. The amount […]

Keeping animals in strata – Part 2 – the road to approval

Savina YangJune 26th, 2014

Previously, I wrote about when and how a resident of a strata scheme can keep pets in their lot. Today, I set out the process than can be undertaken if the owners corporation has rejected your request to keep a pet. So, you have written to the executive committee, enclosing a photo of Max lying […]

NCAT weighs in on the section 80D debate – ratifying legal action in later general meeting

Amanda FarmerJune 26th, 2014

While the NSW Court of Appeal considers arguments in the Bakkante and Elizabeth Bay Road cases, the NCAT has decided the same question in Brodyn Pty Ltd v Auscore Pty Ltd [2014] NSWCATCD 22 (5 March 2014).

In summary, the Tribunal has followed the Supreme Court’s decision in the Elizabeth Bay Road case, finding that it is possible for the general meeting to ratify the commencement of legal proceedings otherwise in breach of section 80D of the Strata Schemes Management Act.

But what now? Options available to enforce by-laws

Georgia Kate MorganMarch 20th, 2014

Unfortunately many of us have to deal with lot owners or residents who simply will not comply with the building’s by-laws. The breaches can range from parking in the wrong place to making excessive noise or causing damage to common property. It is not only very frustrating to owners and residents, but can also be dangerous.

Continuing breaches of by-laws are not something that owners should just have to ‘put up with’, so it is important to understand the options available to ensure compliance and, if necessary, take steps to enforce the by-laws.

Upcoming Changes to the Consumer, Trader and Tenancy Tribunal

Savina YangDecember 18th, 2013

From 1 January 2014, the NSW Government will integrate the CTTT with more than 20 other state tribunals (including the Administrative Decisions Tribunal) into the NSW Civil and Administrative Tribunal (“NCAT”).