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. Ted Varrick

    Ted Varrick Well-Known Member

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    I understand from your OP that this has been through and AGM and been voted on and passed.

    As long as your whole (and this might be another conversation...) building has the issue dealt with by mid-March 2018 then your building will be compliant, and if not, it won't.

    And, if a non-compliant building, after mid-March 2018 in NSW, has an "incident" where someone falls out of a window and is injured or killed, then it's reasonable to assume that the Owner's Corporation of that building will be bankrupt, unless they have very deep pockets.

    And one might speculate that insurance companies that receive premiums from those non-compliant buildings will not be answering their phones that week, should such an "incident" occur.

    ie. the OC will be on their own, so your Committee pulling their finger out might be given some consideration, and who has to pay might need to be argued about in Tribunal or court later, given the time frame.
     
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  2. Daydreamer

    Daydreamer Well-Known Member

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    Yes, I agree and I will just pay the special levy so as to not delay the necessary works - safety and compliance first. In fact, I have pretty much given up on the possibility of any other alternative outcome.

    The council is not sure what the archive records will show. If they dig this up and it shows that the enclosed balconies were not part of the original building at the time of strata plan registration AND there is no evidence of any subsequent council approval of such balconies, then what would this mean in the context of my post? Is it still the owners corp that should pay for the upgrade? Or since it has already been passed at the AGM (which was only passed on the basis of the information that the strata plan registered before 1974, such balconies are the responsibility of the OC - however the context is somewhat different if they were never approved by council or OC). Is this worth pursuing do you think?
     
  3. Ted Varrick

    Ted Varrick Well-Known Member

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    It's not an easy answer. I would take a guess and say the enclosed balconies were approved (nudge, nudge, wink, wink) by a number of owners/committee members in a manner of "who wants to have their balcony enclosed?" at some informal meeting where the cost was shared by the owners of the time (maybe with a group discount). Or maybe was pushed through an AGM as general business, Special Resolutions in those days may have been viewed as "that paperwork stuff".

    From your OP:-

    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).

    and given the forum you are in, and given your block is being self-managed, maybe you should get some legal advice.

    From a specialist strata lawyer. Cost is approximately $500/hr, so getting your issues across to the strata lawyer in a concise manner would be worth considering.

    Before you consult the lawyer, you might want want to get a copy of the agenda from when "..they somehow had a AGM..." and the minutes to that meeting.

    And also, see if you can get a copy of "the legal opinion" to the Committee.

    And get on the Committee, as you are just an email away.

    Let us know how you go, as you might just be dealing with Window Issues now, but there's rarely just one cockroach in the kitchen (to quote Warren Buffett..

    TV
     
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  4. Antoni0

    Antoni0 Well-Known Member

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    Looks like you are digging deeper into the can of worms. It shows you the stupidity of these safety laws, if nobody has hurt themselves within 30~40 years in these buildings the odds are very low that they ever will. Is the window height lower than a normal handrail, if not what's the difference between someone throwing themselves over the hand rail compared to out of a window.
     
  5. bunkai

    bunkai Well-Known Member

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    To be fair, the laws are about child falls and there have been more than a few.
     
  6. hobartchic

    hobartchic Well-Known Member

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    Councils can require older buildings to meet the current BCA. I was looking at purchasing a property where the local council required the stairs to be replaced; balcony demolished; bathroom demolished and rebuilt to current standard and no occupancy allowed until this was fixed. The house was built in the mid 1970s approximately and a report was triggered when part of the house was renovated a few months prior.
     
  7. Antoni0

    Antoni0 Well-Known Member

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    You don't get it, wouldn't an open balcony be worse than enclosed glass one ?
     
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  8. Scott No Mates

    Scott No Mates Well-Known Member

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    AFAIK, the concrete below comes off unscathed either way.
     
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  9. bunkai

    bunkai Well-Known Member

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    Depends on your preference - bbqing in an enclosed glass balcony would be unpleasant particularly if you were into smoking.

    A balcony is obviously a risky area - a glass enclosed space is not necessarily obviously a risky area. Many people would assume it to be the same as a room.

    Yeh. But the mess, the hassle. Is it a strata or lot owners responsibility to clean up? It is a minefield!
     
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  10. Ted Varrick

    Ted Varrick Well-Known Member

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    Antoni0, if the window is less than or equal to 1.7m from the floor (in NSW) it will require a lock that will only allow it to open 125mm.

    Alternatively, the screen must be able to withstand a force of 25kgs against it (ie. a flyscreen is not going to be acceptable).

    Odds are irrelevant, stupid safety laws or not.

    Either the building is compliant by mid-March or the OC is in breach of the Act.

    Clear as day, and no can of worms.

    I'm sure there are plenty of strata lawyers ready to crank up their invoice printers, not only for tribunal access orders (for those those lot owners who have the view that "this is just stupid."), but also for the filthy lucre that on offer when the first kid/person falls out of a strata window and injures or kills themselves after mid-March.

    It will only take one lot owner to deny access and the whole building is non-compliant.

    And any of the OC or Committee members who will be relying on insurance? The only insurance company that pays out on a policy where the building is in breach of the Act, is "Insolvent Insurance", so let's hope all the owners have deep pockets.

    The clock is ticking for any Committees reading this thread.
     
  11. Antoni0

    Antoni0 Well-Known Member

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    I understand what you're saying but the can of worms is that the enclosed balconies have no documentation that they even exist. Most likely as suggested above built on the sly.

    People act as if they're Patron Saints, how many people get speeding tickets, drive with bald tyres or a tail light out. An old building like that I would hate to see how many non compliancing issues it will have.
     
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  12. Daydreamer

    Daydreamer Well-Known Member

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    There is no debate about the safety aspect and need to get compliance so that OC are properly insured, etc. My only line of investigation/question is about the case where only some of the units have these enclosed balconies and who knows whether these were approved by OC or the council at the time. If the search of the Council archives show that these were NOT part of the original building approved by council and there is no documented approval of any balconies ever... then where do we stand?

    I would think that then the owners of those lots need to pull down their enclosure rather than upgrading them paid for by the other lot owners.
     
  13. The Gambler

    The Gambler Well-Known Member

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    Totally agree. Even if they arent, morally the owners of these apartments shouldn't expect you to pay an equal share. It feels like these owners deliberately got the fifth vote so they didnt have to pay themselves.
     
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  14. Daydreamer

    Daydreamer Well-Known Member

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    You would think so right? But this is an example of a situation where the strata law is non-discriminatory and going by the "law", it is the responsibility of the strata to pay for these, whether it defies common sense or morals. They only had to get one unsuspecting, possibly non-English speaking owner who does not have a balcony to agree and they just got it over the line....

    Anyway, my fault.. but when you are busy working your day job to pay for an investment property, how do you find the time to read all the AGM agendas and attend them all ? An example of the negatives of a strata property - much better to own houses (as OO or IP).
     
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  15. Antoni0

    Antoni0 Well-Known Member

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    I went through a similar situation with a commercial building that was recently built and guess what, the council mysteriously lost all the documentation on anything about how and who complianced the structure and by the time the original builders got wind of it they all they claimed bankruptcy. So we wasted a heap of money with a solicitor and then everyone had to fork out more for the repairs.
     
  16. Ted Varrick

    Ted Varrick Well-Known Member

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    AGMs happen once a year and you dont need to attend them, which is what proxies are for, so you might consider treating them with a little more importance (noting that I have zero idea of your personal circumstances).

    I realise some comments here are about safety and morality and etc, and I actually agree with some of the posters, and also your comment about defying "...common sense or morals."

    However, unfortunately a lot of strata owners, managers, tenants, and other stakeholders don't seem to realise that the only thing that matters is:-

    1. Is there a meeting?, and

    2. Who gets to vote, Committee or Owners?, and

    3. Is there an Agenda with relevant items?, and

    4. Did the vote get passed or not?

    If Point 4 gets passed then the agenda item gets actioned, and if not then it doesnt.

    And, whatever you think is really irrelevant, because the only thing that counts is the majority vote.

    This is why stratas have disputes regarding neighbours, noise, nuisance from smoking various substances and poor behaviour, dumping of rubbish, illegal parking, strata managers who "underperform" (and that's not to say that a number of them do not fit this description), damage to common property, etc etc.

    And it's probably the best of a number of bad alternatives.

    And also why the OP is gonna have to just pay up, and resolve the "Who's Responsible?" issues later.
     
    Last edited: 14th Jan, 2018
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  17. bunkai

    bunkai Well-Known Member

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    The horse has probably bolted here and the OP is pretty aware of this (kudos).

    My experience has been that if you are not a member of the EC/SC then you have no idea what is going on. Even as a passive (but helpful) member you still get the internal communications and that is what is really important.

    Of course, if the risk is low then you can let it run by itself. I think joining the EC/SC every couple of years at a minimum keeps your profile up and they know you are interested.
     
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  18. Daydreamer

    Daydreamer Well-Known Member

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    Thanks for all your inputs and comments. Some wise words and good pointers for future reference. All taken aboard. This recent experience was certainly an eye opener for me and does highlight some potential downside to strata property (either as OO or IP).

    My wife and I had ideas of eventually downsizing to a nice strata apartment with Sydney Harbour views when we get "older", retired and kids have left home (still many yrs away).... thinking it would be less hassle, less maintenance, allow us to just lock up and travel more, etc. However, I think there is value in owning your own home (torrens tiltle) vs potentially not having total control (as in strata setting).
     
  19. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Its like being on the Titanic. Your cabin doesnt have to have a hole in it from the iceberg. The ship will still sink and take out your cabin. When you bought you acquired a 1/9th interest in all common property. The roof, the driveway, the upstairs windows etc.

    Your pre-purchase inspections may have identified the defective windows ? .

    You would need to ask the strata to consider improvements. A separate issue.
    You could seek strata approval to modify your balcony at same time as others at your own expense if it enhances your unit value.
     
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  20. Paul@PAS

    Paul@PAS Tax, Accounting + SMSF + All things Property Tax Business Plus Member

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    Yep - I worked with a guy who went to buy a place. Had a strata inspection done on the three year old building and it was appalling. If he had bought the expected special levies would have been $90K plus. And they can be made compulsory. He didnt buy but watched as the issue become known and units prices plummetted. Loads of for sale signs, unwilling buyers, agents all knew of issues and had to disclose. The unit he looked at later sold $140K lower.

    Pre-purchase strata building inspections should include building and committee reports to identify a timebomb or deficiency in general / special purpose sinking funds. Common issues incl structural, balcony structural failures, windows, sprinkler defects, cancer and facsades etc. The modern day one is unrated cladding and balcony mods.

    Most developers underfund sinking funds leaving it to the new owners several years later after they sell final units and handover the Committee with a list of defects all unfixed. Its become a problem in each state.
     
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