Townhouse Strata

Townhouse Strata NSW Premier Residential Townhouse Strata Management Specialists, covering Newcastle & Central Coast

06/12/2021

Construction Defects in Strata

Construction defects in a strata development can have an overwhelming financial and emotional impact on a unit owner. All industry players are impacted with the question of blame bouncing between architects, engineers, certifiers, developers and builders. In the meantime, hundreds of unit owners, investors and renters face uncertainty and many occupants are still unable to live in their units as the stability and safety of their buildings are scrutinised. Construction issues range from superficial cracking to major structural defects threatening the very stability of the building, and the use of combustible materials putting lives at risk.

Warranties for building work
As with all residential building work, a newly-built strata unit comes with various implied statutory warranties, even if these are not stated in the building contract.
These warranties not only apply between the builder / developer and original owner but, subject to time limitations, may pass onto subsequent owners. They cannot be avoided by contrary provisions in a building contract.

The Home Building Act 1989 (NSW) implies specific warranties into every contract for residential building work, namely that:
• the work will be completed with due care and skill and in accordance with any plans and specifications provided in the contract;
• all materials supplied will be good and suitable for the purpose for which they are used and, unless otherwise stated, will be new;
• the work will be done in compliance and accordance with applicable laws;
• the work will be done with due diligence and within the time set out in the contract and, if no time is stipulated, within a reasonable time;
• if the work is the construction of a dwelling or comprises alterations, additions, repairs or renovations to a dwelling, the work will result in the dwelling being reasonably fit for occupation as a dwelling; and
• the work and materials used to do the work will be reasonable for the specified purpose or result.

What is a building defect?
It is important to distinguish between major defects and minor defects as the warranty period differs between each. Major defects are covered by a six-year warranty and other ‘general’ defects (those not classified as a major defect) have a two-year warranty period.

A major defect is defined as:
A major element of a building (such as a fire safety system, waterproofing or structures critical to the building’s stability such as foundations, footings, walls, roofs, beams or columns) which causes or is likely to cause all or part of the building to be uninhabitable or unable to be used for its intended purpose, or which threatens or is likely to cause the collapse or destruction of the building as a whole, or part of it.

For further information on this topic contact [email protected]

01/12/2021

Smoking within a Strata complex.

Smoking is not banned inside of owners lots in strata schemes but is normally banned from common property.

Occupants must not create a nuisance or hazard or stop others enjoying the strata complex. If smoking is offending someone, the smoker could be taken to the NSW Civil and Administrative Tribunal and penalised. Smoke-penetration is the concerning issue. Strata schemes can adopt either option A or option B

Option A
1. An owner or resident, and any invitee of the owner or resident, must not smoke to***co or any other substance on the common property.
2. An owner or resident of a lot must ensure that smoke caused by the smoking of to***co or any other substance by the owner or resident, or any invitee of the owner or resident, on the lot does not pe*****te to the common property or any other lot.

Option B
1. An owner or resident of a lot, and any invitee of the owner or resident, must not smoke to***co or any other substance on the common property, except: (a) in an area designated as a smoking area by the owners’ corporation, or (b) with the written approval of the owners’ corporation.
2. A person who is permitted under this by-law to smoke to***co or any other substance on common property must ensure that the smoke does not pe*****te to any other lot.
3. An owner or resident of a lot must ensure that smoke caused by the smoking of to***co or any other substance by the owner or resident, or any invitee of the owner or resident, on the lot does not pe*****te to the common property or any other lot.

01/12/2021

Keeping Animals in Strata Buildings

Legislation governing the keeping of animals in a NSW strata scheme started on 25 August 2021. Under the new laws, keeping an animal in a strata scheme can’t be prohibited unless the animal unreasonably interferes with another resident’s use and enjoyment of their lot or the common property.

The laws were informed by public feedback received from the pets in strata survey. The survey was conducted earlier this year as part of the strata schemes statutory review.
The NSW Government has developed the Strata Schemes Management Amendment (Pets) Regulation 2021, which sets out circumstances in which keeping an animal causes an unreasonable interference.

Under the new laws, an owners corporation:
• can only refuse to allow an animal into the scheme if that animal unreasonably interferes with another resident’s use and enjoyment of their lot or the common property
• may still require residents to apply for approval from the owners corporation to keep an animal on their lot
• may still set reasonable conditions in their by-laws to manage the keeping of animals in the scheme. Strata by-laws that set a blanket ban on the keeping of any animals within a scheme are not valid.

The laws also include a list of circumstances where an animal causes an unreasonable interference to residents in a scheme. The owners corporation can take steps to prohibit an animal that is being kept in the scheme if the animal causes a nuisance, hazard or unreasonable interference.

01/12/2021

Owners Corporations - Getting Access to your Records

There seems to be a common misconception that an owners corporation requires permission from its strata managing agent to access the strata roll and other records maintained for it by its agent. That access is often denied, frequently citing privacy law concerns. This is a misconception, because these are the owners corporation's own records and it is entitled to them under various legal principles.

In particular:
• The general principle under agency law is that documents created or held by agents in that capacity are the property of the principal, in this case the owners corporation. Although this would be subject to any contrary provision in the agency agreement, such a provision would be unusual and is not contained in the most commonly used templates.
• Failure by an agent to provide access may constitute a breach of the agency agreement, the agent’s associated fiduciary duties or give rise to a cause of action in tort, e.g. conversion or detinue. In other words, the owners corporation may be able to sue the agent and hold the agent liable for any loss suffered by the owners corporation.
• Owners corporations also have powers under Section 181 of the Strata Schemes Management Act 2015(“SSMA”), which provides in effect that a strata committee can give notice to a person in possession or control of property (including records) of the owners corporation requiring the person to deliver the property to a specified strata committee member, non-compliance being an offence.
• Further, failure to provide access may constitute a "failure to account”, justifying appointment of a manager or receiver under Part 9 of the Property Stock and Business Agents Act 2002 or action of a type justifying disciplinary action under Part 12 of that act.

30/11/2021

Short Term Rental Accommodation in Strata

From 10 April 2020 owners corporations are now able to adopt by-laws limiting short term rental accommodation in their strata scheme.
These by-laws can prevent owners using their strata lot for short term rental accommodation, such as through Airbnb or Stayz, provided that lot is not the owner's principal place of residence. If a lot is a principal place of residence, that owner will still be able to let it out on a short term basis.

If an owners corporation wishes to restrict short term rental accommodation in its strata scheme, it will be necessary for the owners corporation to pass a special resolution to change its by-laws. For a special resolution to pass requires 75% of the votes at a general meeting.

Given the requirement for a majority of votes, if you do use an investment property for short term rental, it will be important that you keep appraised of proposed by-law changes and to actively participate in meetings of the owners corporation.

If you live in a primarily owner-occupied building with a few problem short-term rentals, this is an opportunity to revise your by-laws.

Address

38 Ocean View Parade
Caves Beach, NSW
2281

Telephone

+61249710363

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