Who is responsible for balcony window in strata unit block?

Discussion in 'Legal Issues' started by Daydreamer, 18th Dec, 2017.

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  1. Daydreamer

    Daydreamer Well-Known Member

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    Could I please ask for advice, view and directions from the wise forum members on the following question/situation involving strata law and what constitutes common property ?

    I have an investment unit that is one of 9 units in an older small block of units in Sydney.
    Four of the 9 units have their balcony enclosed with sliding glass windows, whilst others including mine are open. Due to the changes to child safety window locks rules, the owner's corp has looked into quotes and
    it has come to their attention that these old balcony windows must be replace with safety glass in order to comply with Aust Safety Standards. This is going to cost around $42K and a special levy is being raised for ALL the unit owners to cover this cost according to their unit entitlements.

    Current strata is being managed by a handful of the owner occupiers in the building, and those on the committee also live in/own some of those units that benefit from upgrade to their balcony window.
    They have apparently sought "legal opinion" from lawyer and apparently, for Strata plans registered before 1974, with no amendments to By Laws (which would be the case for this unit block), the enclosed balcony external windows are the responsibility of the Owners Corp as they are on the boundary of the Lots and Strata common property (in this case, Strata airspace).

    Does this sound right ?
    I am just not sure it passes the common sense test. Do I, as well as other unit owners, who do not have enclosed balcony, have to pay around $5000 each, to pay for upgrade to balcony windows of the other unit owners? I have derive no benefit from this. They somehow had an AGM and had 5 people attend (or their proxy) to vote to get this across the line.

    If this is the case, can I request that the Owners corp also pay to install an enclosed balcony window on my unit, which would improve the utility of my balcony and probably enhance the value of my unit?
    If they argue that it is for safety reasons, why can't they just remove the enclosed window to match the majority of the units in the unit block? Having the balcony enclosed is not a safety requirement or necessity?

    What can I do about this situation?
     
  2. bunkai

    bunkai Well-Known Member

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    Join the strata committee and take an active role in managing the building. It sounds like you have left it too late though.

    The safety glass upgrade argument is a little sketchy as there is no requirement to do so but there might be more to it. If the enclosed balconies were added after the strata plan was registered then I would have a major issue.

    However, if you had joined the strata committee you would have been able to influence the discussion. With all the facts you could have proposed an alternative that benefited the overall value for all owners.
     
  3. Daydreamer

    Daydreamer Well-Known Member

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    Yeah, you are absolutely right about all of those points.
    If I was an owner occupier, sure I would want to be more involved, but as an investor, to be honest, I just don't have the time and energy to join the strata committee. Perhaps this is the price that I have to pay??

    But really, is it all too late now and there is no constructive solution for this?
    What if the enclosed windows were installed by the owners of the relevant units on their own accord after the strata was registered? How does one find this out?
     
  4. bunkai

    bunkai Well-Known Member

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    I think that once the OC has found the momentum to have something approved for such a major sum then changing it will be hard without being involved. But worth a go ;)

    Possible arguments:

    - If the balconies were enclosed by the owner without approval (there is no by-law) then the owners corporation should be asking the owners should be asking them to restore them to the original state not enhancing them. If the windows are a different style or type to the original building then you have strong evidence.

    - Win/Win: If balconies were enclosed over time, that is water under the bridge and the owner corp should enclose all balconies for consistency.

    You should look at the registered strata plan in your purchase documents.

    It is really important that you stay away from your argument that you aren't benefiting from a special levy because that is irrelevant and will erode your credibility. Owners corporation responsibility is to properly maintain common property.
     
    Last edited: 18th Dec, 2017
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  5. Marg4000

    Marg4000 Well-Known Member

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    If the windows were installed with strata approval, and no condition was imposed regarding their future maintenance, then strata is responsible.

    If approval was not given, or if owner maintenance conditions imposed, then the individual owner is responsible for his/her unit.

    It may be that the outcome is different depending on the above, I.e., some owners may be responsible, some not.

    This should all be found in past minutes of strata meetings.

    Or, if the four affected owners can get another to agree with them, then they may be able to get enough votes pass a resolution that strata pays for the upgrade.
    Marg
     
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  6. Daydreamer

    Daydreamer Well-Known Member

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    I have had a look at the strata plan and it was registered in 1970. The diagrams show balconies without any enclosed windows. So I think it was installed after the original strata plan was registered. But whether with or without OC approval, when it was potentially many years ago.... How does one find this out? Is there mandatory storage or lodgement of such minutes of meeting from years ago at a central location?
     
  7. Daydreamer

    Daydreamer Well-Known Member

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    The thing is some of the affected owners (with balcony) are related family members living in at least 2 of the units, and most of these people are on the strata committee, so one could say they have bias and vested interest. Having said that, I have been to one of the prior year AGM and they seem to be lovely people, and they do look after the building well. The OC in this building do the strata management and it has not been outsourced to professionals.

    Is the consensus that if they have managed to get some 5th person to agree (which they have done) then regardless of whether the balconies have been installed with OC approval in the past, and even if they were installed AFTER the strata plan registration, then there is not much more that can be done?

    Thanks again for your inputs. If for anything, it is a learning exercise for me/others to avoid this type of problem in the future !!
     
  8. Scott No Mates

    Scott No Mates Well-Known Member

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    In a perfect world, Body Corp should hold copies of all decisions made whether at AGM or at exec level especially where it affects the rights of owners or the appearance of the building.

    Strata managers also retain the records during their tenure.

    A poorly managed or self-managed BC may not have kept records or been less formal in meeting it's obligations.
     
  9. Daydreamer

    Daydreamer Well-Known Member

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    Given the passage of time and the largely self managed nature of this BC, I think the latter would be most likely. In the case of poor/no available documentation, what is the situation regarding proving whether a structure has been built with BC approval or not?
     
  10. Scott No Mates

    Scott No Mates Well-Known Member

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    There may have been council approval required (if prior to delegated authority or PCA).
     
    Last edited: 19th Dec, 2017
  11. Daydreamer

    Daydreamer Well-Known Member

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    Current situation, no matter how fair or not, is that they have managed to get 5 out of the 9 units to agree to strata paying for the upgrade (noting that 4 of them are the owners of the enclosed balconies, so of course they would want strata to pay).

    Is the consensus that it is "game over" with regard to this, whether the balconies were approved by strata or not? It saves me trying to be a private investigator trying to chase all this documentation, which may not exist and/or trying to chase council. If I have no chance to over turn the decision then I need to consider whether my time and energy is worth spending on this in addition to $5200 I need to pay over 2 instalments to pay for other peoples beautifully new enclosed balconies with fly screen....

    Perhaps on a more constructive note, do you think it is possible to try to get OC to pay for similar enclosure to those balconies that are open? Or is OC responsibility for the maintenance of the existing balconies ?
     
  12. Daydreamer

    Daydreamer Well-Known Member

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    An update to the situation... I spoke with one of the committee members, who says that there is circumstantial evidence that the 4 enclosed balconies are of the same age and were there from the beginning when the building was built. One of the owners who has lived there for 30 years says that it was there when they moved in. He says the strata plan only shows the floor plan and not elevation, so it is not possible to see from the strata plan if the balconies were enclosed or not? Is this true? Is there somewhere I can find the detailed drawing of the strata plan or is the one with the purchase documents and contract of sale it?

    So, with the strata plan registered before 1974 and that law saying that this is common property whose responsibility of the OC, then I think there is no choice but for me to comply and pay. They said that if I can provide evidence to the contrary, they are willing to consider, but I don't think there is anything that I can do. Only thing I could see as a viable argument was if the balconies were enclosed by the owners at a later date, but it will be near impossible to prove one way or the other.

    I think I move on and do more constructive things. Perhaps I do look at enclosing my own balcony at my own cost, so at least it will be then looked after by the OC in the future.
     
  13. bunkai

    bunkai Well-Known Member

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    At least they are willing to have a discussion and that they have reasonably thought this through.

    The only place you are going to find any info is in council records, they will have the approved plans in their archive.

    Btw. If you enclose your balcony, and the strata was on top of their game, they can pass a by law transferring maintenance to you.
     
  14. Ted Varrick

    Ted Varrick Well-Known Member

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    @Daydreamer , maybe your Committee should have a look at

    NSW Legislation

    which refers to Windows Safety Devices (ie, things like Venlocks) that only allow windows to open to 125mm, so tenants/children/pets etc cant fall out of them.

    Another option is to get flyscreens/securtiy grills replaced, see Flat Chat: Window locks must be fitted – but can be removed

    From your posts it looks like your Committee might be erring in their assumption that actual windows need to be replaced. Perhaps they should consider some advice from a professional strata manager, as you have indicated your building is self-managed, and the Committee might not be up to speed.

    If the enclosed balconies are not part of the original build, it's probably only peanuts to get a complying Venlock attached to the window, so is probably not worth fighting about.

    If you want to fight about it you will need to go to Fair Trading for a mediation, and then NCAT for a punch up, which will be fairly expensive for both parties (see the price of your special levy and add 50% or so...).

    If you want to enclose your own balcony, you will need a by-law to do it, and the future maintenance will then be at your own cost.

    Your Committee has until about mid-March 2018 to get this Window Lock Compliance issue dealt with so your building is compliant.

    I understand that if only one resident/owner does not allow access (which is a whole other conversation), then the entire building is non-compliant as at that date.

    And the first injury/fatality in a non-compliant building post March 2018 is probably going to result in the first bankrupt Owners Corporation.

    And that's probably going to motivate every Committee in the state that hasn't dealt with the compliance issue.

    All at the same time.

    And real fast.
     
  15. Daydreamer

    Daydreamer Well-Known Member

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    What the self managed body corp are saying is that they got a few window people to quote on doing the window locks to comply with new legislation, but none of them wants to touch it because the existing (old) window glasses are thinner/non compliant with new building compliance rules, eg. I think they can shatter more easily, etc.

    So that is why they are looking at replacing the whole window glass/frames/locks - hence why it is no trivial cost.

    What I am trying to find out from Randwick Council under Access to Information, is whether they can dig up old archive information and see if these enclosed balconies were part of the approved building registered with the council back in early 1970s. There is a charge to ask them to look for this, and I'm not sure if back then how well these things were required to be documented. I don't know if it is worth the effort, or I just pay up the $5000 or so.
     
  16. bunkai

    bunkai Well-Known Member

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    That sounds like a person who replaces windows quoting on window locks. Talk to Urbanblox.
     
  17. Antoni0

    Antoni0 Well-Known Member

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    The problem is once it's been brought to attention that the glass doesn't comply, if something was to go wrong it might make the people making decisions partly responsible and it might affect insurance also.
     
  18. bunkai

    bunkai Well-Known Member

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    More information is needed because it doesn't have to comply to the current code.

    You will find most of the building doesn't comply with the current code because it doesn't have to. Only needs to comply to the standards at the time unless it is modified or there are other requirement imposed (e.g. fire, fall safety).

    Fall safety seems to be just the max gap and 25 kg pressure resistance.
     
  19. Scott No Mates

    Scott No Mates Well-Known Member

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    Some other laws also require a retrospective upgrade eg: safety glass in windows adjoining doors.
     
  20. Antoni0

    Antoni0 Well-Known Member

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    If that's the case I can't see what the problem is. Fitting of child locks will be a modification so I suppose the company is covering its back side.