We would like to thank everyone who participated in the online consultation on Strata Law reform. We had an amazing response and your comments have been included in a report which was presented to the NSW Government in May 2012. While you are no longer able to comment on the consultation questions, we invite you to read the submissions which will remain on the site as a record. If you would like to receive updates on Strata Reform, please contact us at strata@openforum.com.au. Thanks again for your support.
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The close living arrangements in strata and community schemes, and the significant financial decisions that need to be made, mean that disputes are bound to arise from time to time. Many disputes can be resolved informally by the parties simply talking to each other, while others need to go to more formal dispute resolution such as mediation or adjudication. Most disputes are required to be dealt with by mediation, which has a 70% success rate. If a dispute is not resolved, the next step is adjudication on the basis of written submissions. Adjudication is less adversarial than a tribunal hearing, which is important for the ongoing relationship between neighbours. It has also been criticised as not being transparent, as the parties do not attend a hearing. Enforcement of by-laws is another area that can cause difficulties for owners.
Q4. Are there any changes needed to the way disputes in strata and community schemes are resolved?
DISCLAIMER: The comments published below represent a wide range of views and interests of the participating individuals and organisations. Statements made during online discussions are the personal opinions of the commentators and do not necessarily reflect those of the NSW Government or Open Forum. Open Forum, at all times and at its absolute discretion, reserves the right to remove offensive comments from the Strata Laws Online Consultation. For your reference, any comments/messages that are offensive for the online consultation would include any or all of the following: breach of privacy, defamatory content, profane content, risk of contempt of court, racial and religious hatred/vilification, confidentiality concerns.
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Comments
My experience in dealing with
My experience in dealing with CTTT is far from satisfactory.
1. There should be a provision to allow interested parties to use own equipment to make sound recordings of all preceedings. Currently, we have to pay exorbitant fees for a copy, which may come in weeks time. The Tribunal can make own recordings, for their own archives.
2. Provision for parties to access a whole file and being able to make own copies (for a nominal fee to cover a cost of a table and electricity)
3. CTTT to respect The SSMA. From my own experience, The Tribunal accepted OC submission without a common seal, signed by one member of the EE only, without even conducting a meeting to authorise the secretary to start legal preceedings. Contrary to CTTT obligations, preceedings were not impartial, time for presentation of facts was restricted. CTTT accepted false statements from some without investigating counterclaims. The whole strory will be submitted to the Minister.
4. Remove a compulsory mediation. An applicant should decide, if there is a chance of positive outcome from the mediation. Otherwise, it makes the whole process more expensive. An owner seeking resolution against EE/OC has to pay from his/her own money, while EE members use money from the administrative fund. Instead of compulsory mediation, the first step can be split in two, where parties would have opportunities to comment on submissions.
5. There must be an easy way to lodge complaints against memebrs of CTTT.
6. Make a special provision to enable single owner to lodge complaints against a managing agent, without support of OC/EE.
CTTT / OFT Mediation
Q4. Are there any changes needed to the way disputes in strata and community schemes are resolved?
Re: The dispute resolution mechanism
Mediation and adjudication, neither are a mechanism the public flock to if an issue arises in their SP, in fact a large portion of owners will not engage in dispute resolution due to the nature of the mechanisms, particularly the adjudication and tribunal levels of the mechanism.
Mediation needs to be quicker, not necessarily compulsory and the OC needs to be required / compelled to accept or decline mediation in a reasonable time frame. A paperwork EC meeting can be held within 14 days in any properly run SP, in some cases as few as 4 days. The Act needs provisions to force OC’s to expeditiously deal with mediation applications. At present the OC can ignore an application for months before OFT close a file. I personally had one mediation application open for 10 weeks before OFT closed the file after the EC repeatedly failed to put the matter on an EC meeting agenda and make a decision to accept or decline the mediation.
I have been led to believe that once a third party has actioned a decision of the EC/OC then it is a “done deal” i.e. it cannot be undone – money gets paid or some other consequence exists that is virtually impossible to undo. I come from an SP where action without resolution is common enough that it does lead to situations that could have been avoided if proper process was observed. The current system requires a person with an issue to apply for mediation, attempt mediation and then make application for an adjudicators order if unsatisfied. The whole process takes far too long.
Interim orders are rare so the idea a mechanism already exists to prevent anything but the direst situation is incorrect and I will add that it should be possible for an applicant to seek an interim order without the need to apply for mediation and to submit a substantive application at the same time.
Re: CTTT
I live in a large SP that is run with little regard for the SSMA. There are equity eroding deficits, the finances are not kept as required by the Act, interest on overdue levies is not calculated properly if it is calculated at all, 25-33% of owners are not financial, there is an unwritten policy not to pursue debt, the strata roll is a mess, the meetings procedures are not followed for both EC meeting and AGM’s, records are not kept as required by the Act, section 62 obligations are not met, the list of legislative failures is quite extensive. The last AGM was littered with motions from ineligible people, had ultra vires motions, included policies that were inconsistent with the Act and was highlighted by key individuals, literally, going out the back for a joint on a regular basis. The controlling interest in this SP hangs onto self management via disenfranchises, vilifying and ostracising people who question the poor management. CTTT have proven to be absolutely useless to resolve any of the numerous non-compliances.
I cannot speak poorly enough of CTTT. There are no “strata police” and I happily state that 95% or so of the SSMA 1996 need not be complied with because there is no recourse against most non-compliance because CTTT generally do not engage in enforcing the SSMA unless a matter deals with significant hardship, loss or unreasonableness.
CTTT’s reputation is poor and CTTT are often viewed by peak media, the peak owners group and peak management representatives as more of a strata problem than a strata solution.
The strata division of CTTT needs to be made a specialist division financed by 2.5% of the CTTT budget but still using the CTTT infra structure for paperwork shuffling. The current collection of adjudicators need to be sacked and a new job description and criteria put in place that sees people with real world strata skils and knowledge dealing with adjudications.
When Senior CTTT members act as adjudicators and are clearly seen to have no idea about something as simple as who is entitled to submit a motion or vote at an AGM then it is time to start trimming some of the dead wood.
I will give the example of trying to get an interim order to keep ineligible motions from being put to an AGM. This is too trivial a matter to bet an interim order for and by the time the whole mediation/adjudication process is over the motions have been put to the meeting and some outcomes actioned such that there is no going back. The motions should never have been before the meeting but the current system is so lethargic and poorly operated it is easy to compromise the Act. I have even had a case where the adjudicator acknowledges that owners were not given proper notice for there AGM but that didn’t matter because there were still good numbers at the AGM.
The whole dispute resolution mechanism works sometimes but it is rubbish in too many circumstances.
There should be a way to get an order on short notice even for “trivial” matters and the whole process of mediation/adjudication needs to be speeded up dramatically and decisions in matters need to be more consistent and usable as precedent within the same jurisdiction.
CTTT needs to have the strata division removed from its jurisdiction. People at CTTT should be sacked for some of the nonsense that has come out of CTTT.
I find the concept of strata police appealing and I also find the concept of replacing CTTT with a panel consisting of a good strata lawyer, a good strata agent and a strata savvy EC member appealing.
To get a feel for the publics opinion of CTTT then the “think tank” should sign up to Flat Chat (flat-chat.com.au) and read how those strata owners are appalled with CTTT.
CTTT has failed section 3 of the CTTT Act. Section 3 of the CTTT Act is useless legislation that is little more than a “feel good wish list” because there is no consequence for CTTT’s failure to meet with the objectives.
CTTT / OFT Mediation
We completely agree with your points. You are a hero! You can speak out for our owners. We believe many owners will appreciate your points and opinions. We also disappoint of CTTT and Fair Trading for long time already. Some of commissioners and members of CTTT should be sacked immediately. We also have many evidences.
We help government can open heart to listen public opinions.
CTTT Mediation
I have been concerned for a long time regarding the CTTT not rejecting certain applications for mediation when it is blatantly obvious the mediation is not suitable.
Mediation is not suitable when the Owners Corporation resolves an issue at a general meeting. An example of this would be in the event that an Owners Corporation has resolved at a general meeting that an owner or occupier cannot have an animal. The applicant is not satisfied with the outcome and makes application for mediation. Mediation cannot give the applicant the outcome of approval to keep an animal. and so mediation fails.
The CTTT should reject all applications for costly mediation when the Owners Corporation has resolved the matter at a general meeting and advise the applicant to seek an order.
Accountability of Office Bearers and cost of mediation:
Why should the person taking the Owners Corporation or Executive Committee to mediation have to pay the financial costs when the Office Bearers are acting contrary to the Act? Example: I requested an Executive Committee meeting with three members of a nine member committee in accordance with the Act, i.e. greater than 25%. The Office Bearers refused to call the meeting because they felt it wasn’t necessary. I took the matter to mediation and holding of an Executive meeting was agreed. I had to pay the fee and they weren’t held to account for their actions. Strategy: The OC should cover the cost when Office Bearers are ‘at fault’. What’s more, Office Bearers contravening the Act should be named in the Strata record for awareness of prospective purchasers when obtaining a ‘Strata Search’.
MEDIATION & ADJUDICATION
I refer to the "Mediation" decision, quoted proudly in the CTTT annual report for 2010-11.
A strata scheme, comprising 10 units and 4 shops in a 1930’s art deco building, had ongoing issues with water penetration through the roof. Numerous repairs to patch the leaks had been made but they failed to fix the problem.
One of the lot owners, whose unit was most affected by the water penetration, lodged an application with the Tribunal for Adjudicator’s orders that the owners corporation carry out a complete replacement of the roof and undertake repairs to her unit including replastering and painting of damaged walls. She provided photographs showing extensive mould and water damage to her ceilings and a quote for the repair work coming to a total of $170,000.
A number of submissions were received from other lot owners who generally supported the application. The submissions confirmed that many attempts had been made to patch and repair the leaking roof and that water penetration into the applicant’s unit had been an ongoing problem. However, it was apparent there was much disagreement between the lot owners about how and when the roof repair work should be undertaken. Some submissions contended that other common property repairs were more of a priority than repairing the roof.
After reviewing the submissions and evidence, the Strata Schemes Adjudicator was satisfied that there was a problem with water penetration into the applicant’s unit and that extensive repairs were required. However, the Adjudicator considered that the owners corporation should be given an opportunity to obtain a report which clearly articulated the scope of works.
The Adjudicator declined to make the orders sought by the applicant, and instead ordered the owners corporation to obtain a report from a suitably qualified person to investigate the cause of the water penetration into the applicant’s unit and provide options and solutions for the repair works.
Who's interests are being served by such decisions, and what's the point? Why should the OFT retain the right to force people to undertake the time and expense of "mediation" when such outcomes are being frustrated by adjudicators without any sense of justice?
Disppointment of CTTT
As an owner, I agree with your point 1, 2 and completely agree with your point 3 such as CTTT accepted false statements from someone without investigation counterclaims and even some adjudicator make their decisions base on the false statements and lack of investigation.
CTTT
My experience in dealing with CTTT has also been far from satisfactory. I received a valid develpment consent from council for a storage shed- acknowledged by CTTT as valid and current. The owners corporation asked CTTT to order its demolition and when i had my chance to make a submission the CTTT did not even read it, then apolgised for the error, but said the decision stands. Denied natural justice!
The orders to demolish were issued, but the council development conset, construction certificate and occupation certificate all remain current and valid - so we have competing instructions - council says erect and CTTT says demolish. Regardless of the merits of the argument it is clear this is an impossible situation that should not occur. There are many other contradictions & inconsistencies to this case that cannot be explained due to lack of space.
I have repeatedly asked Minister Roberts to have this case investigated by an independent person, but he simply responds by saying the CTTT is satisfied with its own handling of the case - they would say that !
zenon
Enforcement of By-laws to be made easier
Enforcement of By-laws needs to be made easier
PROBLEM
The problems are:
1) the enforcement procedure is not timely, is inefficient and works in favour of the offender and against the owners;
2) the CTTT fines are inadequate in some circumstances, and do not act as a sufficient penalty or economic disincentive to offenders;
3) Owners Corporation incurs legal costs on enforcement which are not recovered against offender.
EXAMPLE
An owner consistently breaches a By-law for his or her own convenience.
The Executive Committee is required by law to enforce compliance with the By-law.
CURRENT SOLUTION
Executive committee gives notice of meeting, passes resolution, must attend compulsory mediation at CTTT, matter not resolved, Owners Corporation retains solicitor, gathers evidence, files application at CTTT with evidence, procedural fairness requires parties to have right to make submissions. Dispute then determined by an Adjudicator, and Orders made, with rehearing and appeal rights.
This process might take four to six months and incurs the Owners Corporation in legal costs.
PROPOSED SOLUTION
The following process provides a solution:
1 Owners Corporation (through Chairman or Secretary of the Executive Committee, or building manager, strata manager) serves Warning Notice (pro forma in Regualtions attaching copy of By-law and particulars of breach(es)) on offender requiring compliance with By-law within seven days (no need for meetings or resolutions by AGM, EGM or Executive Committee);
2 Offender may give written undertaking within seven days to Owners Corporation to comply, and if offender complies, no need for further action;
3 If Offender does not comply (including a later breach of the undertaking) the following simplified procedure occurs :
(a) Owners Corporation may immediately file application in CTTT for orders that offender comply and for fine or civil damages and any legal costs , supported by evidence consisting of the Warning Notice served on the respondent offender;
(b) respondent has seven days to file and serve either :
(i) an undertaking to comply; or
(ii) notice of dispute setting out why the orders should not be made with supporting evidence;
(c) if notice of dispute is filed and served by the respondent, the applicant Owners Corporation to have seven days to Reply to the notice of dispute and any evidence filed by the respondent.
4 The Application is then assigned to a CTTT Adjudicator for review and conciliation;
5 The Adjudicator may decide an appropriate course :
(a) to make orders based on the material in the Application, the Notice of Dispute and Reply; or
(b) direct the Parties to a mediation/ conciliation conference, including the Adjudicator having power to give an 'early neutral evaluation' of the dispute to assist the parties in coming to a settlement;
6 If the dispute is not settled at this stage, the Adjudicator may decide the matter should be set down for hearing in the CTTT for Orders, including Penalty and or Damages (where proved), Interest on damages, and Costs.
7 The usual rehearing and Appeal rights to be available.
ADVANTAGES OF THIS PROCESS
1) It provides a regime for speedy and efficient resolution of the dispute at two early stages :
a) the Warning Letter and undertaking;
b) The Application and second opportunity to give an undertaking;
2) It provides an opportunity for settlement where there is a genuine dispute by the Notice of Dispute, mediation/conciliation;
3) It enables an Adjudicator to form an opinion which gives the parties access to 'just, quick and cheap' justice :
(a) make orders if the evidence does not indicate a genuine dispute, ie a good reason why the By-law should not be enforced;
(b) give an 'early neutral evaluation';
(c) conduct a conciliation conference;
(d) determine that the matter should go to a hearing in the CTTT.
4) It balances the need for speedy resolution with the rights of the parties where there is a genuine dispute.
5) It provides for real enforcement by fine and or Damages, Interest and Costs where the dispute is not genuine.
Note:
In my experience many disputes involve inadvertent transgression by oversight or carelessness rather than wilful default, and once the matter is brought to the attention of the offender, the matter is finally resolved - the Warning Letter stage.
On the other hand, there are some persistent and wilful defaulters (includes reckless indifference) who will comply once they realise the Owners Corporation will enforce the By-Law - the CTTT Application stage.
That leaves the party who wishes to challenge the By-law because for example, they are making money from unlawful use of the premises (hotel style commercial operations, overcrowding, prostitution) and the current delay and economic gain far exceeds the amount of any penalty - the CTTT Hearing stage with appropriate orders. Damages can be the equivalent of the economic gain.
I will be pleased to debate this through this Forum.
John Levingston
Enforcement of By-laws to be made easier
John Levingston's proposal is an interesting contribution to the problem that so many strata managements face. However it still seems to be a lengthy, time-consuming and costly process that does not distinguish between by-law offences that require speedy resolution and those or lesser urgency. In the latter category I would place hanging washing on balconies or smoking in common areas; in the former, I would include repeated parking in visitor spaces and creating noise and disturbance. What is lacking in the proposal is a form of summary jurisdiction, to eliminate the steps in 3 (b). In practical terms, all that should be needed to obtain an expeditious hearing by an Adjudicator is the failure of an offender to make a satisfactory response to step 1. When the Registrar sets a date for the hearing, the offender is served with a notice to attend if he wants to defend his actions. As in a magistrate's court, a decision should be given immediately in most cases, certainly if the complaint is not defended. Far too much time is lost serving papers and giving rights of reply - both parties know the facts, and too-extensive protection of the rights of the individual (presumption of innocence) only favours wrong-doers.
The proposal raises a more important issue. As it operates, the Tribunal may dispense law but not justice. Members and Adjudicators are so bound up with following the literal law they frequently cannot see the wood for the trees. I know this raises the philosophical questions that have plagued legal interpretations of justices right up to the High Court, but there is no reason why Tribunals should not adopt a more interpretative approach when the evidence shows that to be appropriate. I cite an example given by a friend who struggled for six months to obtain justice for his strata, only to have the case denied on jurisdictional grounds. A liberal instead of a literal interpretation of the Home Building Act would have allowed the complaint to be heard.
A contractor to the strata defrauded the residents by falsely claiming for work that was not done. The documentation he submitted to the owners' committee was complex, contradictory and in some cases falsified. The complaint to the Tribunal was supported by dozens of documents and a lucid analysis to assist the Tribunal to understand the intricacy of the frauds. To protect the contractor and committee members who had failed to detect the frauds, the committee refused to initiate the complaint. It was therefore brought by an individual who sought to recover the lost money on behalf of the strata's residents. The Tribunal however refused to hear the complaint on the grounds that the complainant was not a party to the contract, which was between the owners' corporation and the contractor. This was a strictly correct but academically narrow interpretation. The Tribunal could just as easily have "seen though" the jurisdictional issue to the substantive matter of the frauds. Independent legal opinion was that the relevant section of the Home Building Act could well have been interpreted as empowering the individual to act in lieu of a recalcitrant and conniving committee. A factual basis for such an interpretation could have been built by calling and examining under oath the principals involved. Instead, the Tribunal took the easy way out, leaving the appearance it was guarding its own back. We do not expect to find a Lord Denning in the CTT Tribunals, but the members might at least try to emulate his clarity of thinking.
Development of Ancestor's comments
A refinement to my proposal (based on Supreme Court injunction procedure):
1) Applicant may make ex parte application for interim order restraining breach of By-Law with evidence of by-law and the breach(es);
2) CTTT to make immediate interim order as sought by applicant;
3) Offender has choices
(a) accept interim order - which then becomes Final Order;
(b) oppose interim order (which contiunes until set aside, if it is, after hearing) by filing evidence within three to seven days ;
3) Applicant has right to Reply to offenders evidence
4) Final hearing by CTTT Adjudicator and Orders made as Final Order or interim Order set aside if offender successful.
John Levingston
Ps The parking problem issue is addressed in my Blog under Item 1 - based on Admiralty law. It has the nice effect of putting the whole of the cost onto the offenders who are also inconvenienced by having to apply to the CTTT to have their thing released from arrest
comments
I see where you an ancestor ar going with the idea but my SP is run by an EC so caught up in making the SP their own little kingdom that by-laws are selectively enforced and at least one lot was sent a notice to comply for matters he had nothing to do with. My SP is not alone in being in this situation. It happens too often whether it be large or small strata and it needs addressing before any proposal can be seriously considered
My EC sends white powder in the minutes if they do not like an owner. I am happy to put a link to the media report of the local police station being shut down when the minutes, with powder, of the EC meeting were presented at the station.
What ever the proposal is you put forward i feel there needs to be some sort of framework that an EC /OC / agent must work within that ensures unbiased and professional performance from those in positions of managment. That is a bigger problem than how to address reprobates breaking by-laws.
I also have major issue with anything that involves CTTT - they are absolutely hopeless and should have the strata division removed from their portfolio.
P.S.
John writes
"CURRENT SOLUTION, Executive committee gives notice of meeting, passes resolution, must attend compulsory mediation..."
No no no. The EC does not have to give notice of a meeting, or give a detailed agenda or pass a resolution or attend ... if you think so then come to my SP and see they do not do it and CTTT do not care.
To be fair; what John writes is what is supposed to happen but CTTT are fickle.
If CTTT still has a strata division after the reform process is over then those behind the reform process should be sacked.
More Power to EC
The EC should be able to enforce by-laws by taking necessary action. Our complex has not gone down the road with the CTTT. We went straight for lawyers. Quicker. Didn't have to lodge anything, take day off work to go into mediation. More expensive though. But shouldn't have to come to this. An EC should be able to say comply or else and be able to mean it!
able or compelled?
"The EC should be able to enforce by-laws by taking necessary action "..... NO; they should be compelled to have to take action, everytime, and be personally accountable if they get vexatious or selective or use the power to harrass.
"An EC should be able to say comply or else and be able to mean it! " ... absolutely agree.
But what if the EC is
But what if the EC is dysfunctional?
excellent question
my EC is in the dysfunctinal basket and i have great issue with ECs being given more power unless they are under legisation that requires them to be professional, impartial and personally accountable.
your point is very valid ... ECs need to be functional before they get empowered.
more power to the EC
The above comment by struggler for more power to the EC is a very tricky one. On the one hand, the EC must have some serious punitive powers so that they can enforce the responsibilities foisted upon them by the SSMA 1996. At the other extreme, I am reading accounts where some EC's run the SP to suit themselves and tough luck for the other lot owners. However, one particular power I would like the EC to have, is the ability to write out "on the spot" fines for any by-law or other breaches. This would be similar to the old parking tickets we have all had to pay at some time in our lives. The ticket would have to be signed by an EC member and counter-signed by another non-EC lot owner (so rogue EC's do not run amok). The fines would be processed by the local council with a split say 70% to the OC coffers, and 30% to be retained by council. Under the current regime, it is such a convoluted and time-consuming process to enforce such action. This may not be the answer but something has to be done so the EC can act quickly if it is required. You only have to enforce these situations a few times and lot owners/residents will get the message by the twitching of their hip-pocket nerve.
more power to EC
I just posted under this topic then had a "rush to the brain" on another EC-oriented matter. I absolutely agree that lot owners should be able to contact the EC members and be able to establish what is going on in the strata complex. They should also be able to question the EC if the EC is not doing their job. However, what happens when you have a particularly vexatious and persistently troublesome lot owner whose sole purpose is to hound the EC because the EC is not running the strata in the same way that person did it when they were an EC member several years ago. We have a strata that has been subject to neglect for many years, mainly water penetration in specific common areas (that probaly covers most strata units in NSW). This prior EC member (despite being part of a committee that paid for an expensive report highlighting the problems) did absolutely nothing because the report indicated it would cost a few hundred thousand to bring the complex back from the brink. Recently some new blood has come into the strata complex and onto the EC, with the aim of gradually fixing up the problems that have been ignored. Without sounding off, in just a few years, the new EC has managed to fix many of the major problems that previously plagued the complex. Now I can understand if a lot owner kept complaining if NOTHINg was being done, but this one keeps complaining (and telling the EC how it should be running the show) even though things are being done that had been ignored when that person was Secretary of a prior EC group. In short, there should be some kind of "on the spot" penalty or mechanism that can be used to shut this person up. The current EC has a policy of responding to lot owner concerns, but this person is using this opening to drain the energy and patience of hard-working EC members, and distracting them from more important matters. So there should be some provision in the Act that can be used to protect the EC from vexatious lot owners and/or residents. You would not believe the kinds of insulting, time-wasting and plain stupid e-mails I have been getting..... but the more I read these postings, the more certain I am that I am not alone in my misgivings.
more power to EC
Marksman you are definitely not alone. The only thing that keeps me sane in strata is that someone somewhere is probably suffering as much as I am.
Yes I can believe the stupid time wasting requests/emails you get. Hows this one - an owner here removed a part of common property (with jackhammer) and changed it. On our demands to have common property put back to original (with use of lawyer - notice to comply did not good) this owner stated the change was an "improvement" and owner said should have charged the EC for the work carried out! This same owner has again done unapproved works to other than own lot again - and sent the EC the bill this time!
Then there are all the requests from owners who believe everything and anything is covered by the EC/OC. They want to pay a "backpacker" levy but want the "five star hotel" treatment - with a servant at their beck and call. All while they do absolutely nothing to maintain their own unit. "I noticed the leak for 4 years but now the roof has fallen in" is one example of how owners here sit and watch their place fall apart - because someone else pays for it! So what does it matter how bad it gets when I don't have to pay!
And don't get me started on the visitors car park. In this complex it is a case of "But I have 4 cars and only one car spot....". Not from one unit, not from two.... This is a common "problem" for our owners. Luckily we can direct them to the more than ample street parking but this seems just too hard for them - another waste of EC time.
I believe that when an owner purchases in strata they should have to read and sign a "Terms and Conditions" contract between themselves and the EC/OC stating they have understood the conditions on which they move into strata and agree to abide by them. Won't stop someone doing something they shouldn't but perhaps if we had a signed legal document stating that they will "obey" then may be easier for EC's to take action. Just a thought.
It should be easier for an EC to take action on an owner/resident who breaches by-laws - but within reason. A one time park in the visitors car spot does not call for clamping and towing. a continual disregard however, with adequate notification they they are in breach and the consequences of doing it, then the EC should be able to take action without having to jump through hoops. And EC's have to be fair in their decisions making. A "yes" decision for one owners means yes to all and same with a no decision. Perhaps EC's and their deisions should be audited by an outside party to ensure there is no "taking care of your mates" to the exclusion of others. Our EC has always been fair in their decision making.
posting applications and determinations on scheme's noticeboard
When I applied for mediation, adjudication and appeal in the CTTT, those applications and their written arguments were posted on the strata scheme's noticeboard. My arguments included financial information because I was concerned about such large and sudden levies. The tenants of one owner who owns 88% + of lots wrote harassing comments against me on them.
Comments by these residential tenants were "Stop hurting people!" and "REAL OWNERS PAY THEIR LEVIES ON TIME". This owner even gave one of his tenants correspondence and witness statements from the proceedings when they were not even concluded yet and she posted them on the noticeboard.
When I invited he and tenant 1 to confidential mediation about this, he gave tenant 2 the written application of that and she posted it on the strata noticeboard.
Both of these tenants are on Centrelink benefits, so are vulnerable to his incitement. It's sad.
There was no by-law made at the time that the scheme have a noticeboard, but he made one after I complained that I was being harassed so. If a by-law exists then the OC must post notices of application on the nb.
The noticeboard is not being used in the best interests of all of the owners. Notices of things we need to know, for example currently likely upcoming large expenses for an impending fire safety upgrade, are not posted there. But he places notices of challenges to his hegemony there to make me uncomfortable in my home.
I am the only owner who lives there. This is common as most schemes in the inner city are comprised of tenants.
In an internet age there is no need for a noticeboard in a residential building. When there is a challenge, this causes harassment. We have professional strata management who have an online portal kimited to owners with a login and password, but this is too slow to be accessible.
If we must have one, an electronic noticeboard would solve this problem so the OC can control and index what has been offically posted. It will stop ppl ripping down notices and scribbling comments and will update postings. Or at least a lockable noticeboard. But I say a noticeboard only causes harassment and it should be removed from the Act.
A professional communication and information policy controls levels of access to different groups. You identify your primary target (eg: owners) and publish full info to them via an online portal with restricted access, you identify tenents and publish relevant need-to-know-only info to them publiclly. This avoids confusing people and will avoid violence.
See also my posting about tenents with a psychiatirc disability.
By-Laws
The By-Laws need to be enforced and breeches need to be able to be punished.
Improving Dispute process in Community Eststes
Allow a easier way and expedite time frame for fines for complete disregard of bylaws after written warnings.
Q 4
Have a simple arrangement, eg have strata disputes heard initially by a panel comprising a strata lawyer, a strata manager & an experienced Executive Committee member, based on one question: Has a bylaw been broken? The verdict should be binding. If the losing party appeals to the CTTT they should wear all costs if they lose
Q4
This posting from 0141 leaves no room for an owner to state if the by law was fair and legally complying with all other laws and regulations or not. I don't think this is a balanced view at all. There should be that a panel of open and fair minded people available at some level of government, to discuss and try and address issues rather than pressuring an individual to comply and pay up. The CTTT does not meet this end at the moment.
Prevention
Have strata disputes heard
Have strata disputes heard initially by a panel of a strata lawyer, a strata manager and an experienced executive committee member based on one simple question: has a by-law been broken? The verdict should be binding and let the losing party appeal to the CTTT if they don’t like it, wearing all costs if they lose. Let the Owners Corporation go back and amend their by-laws if they feel the decision is bad for their strata plan.
The Fair Trading mediation system has been made a mockery by those who refuse to concede anything. The statistics mean nothing – what is a “satisfactory resolution”? Someone giving up even though they are right?
The CTTT adjudication system has lost the trust of people in strata who can’t understand why simple issues about whether or not a by-law has been broken can become the basis for confusion, discussion, debate and legalistic wrangling. The CTTT has become the opposite of what it was intended to be – a simple and low-cost alternative to litigation. Nowadays many people, including strata professionals, see it as a waste of time, money and energy and a statutory roadblock on the way to a sensible result at a District or Supreme Court. There is no “strata” in Consumer, Trader and Tenancy – it’s time there was no CTTT in strata.
Strata Disputes
Does this mean rather than mediation, the so called win win scenario we move to an expert panel to resolve issues? Certainly it is a different approach and has my vote. You see I'm only a supporter of the mediation process on limited matters.
On the point of statistics I approached OFT when they advised that mediation had a very high success rate. My question was how they defined success to which they advised the matter went no further. This to me is not success! How many participants were satisfied, the matter resolved or just gave up. I think the latter is a high percentage.
It’s time to think outside the square and look at alternatives as it probably will be another 20 years before this review occurs again. The last major review started in 1994 and concluded with the Strata Schemes Management Act 1996 followed by numerous bandaids.
Online Consultation Q4
A thorough, exhaustive review of the CTTT with the objective of getting an acceptable level of professionalism into the organisation. I and my wife have been involved in three executive committees over the years and our experience has left us with a very low view of the effectiveness of the CTTT,particularly the sometimes seriously illinformed judgements handed down. The CTTT is very much a last resort for any executive committee,no one wants to go there, you can never be sure of where you will end up.
CTTT experience, suggetions
CTTT File SCS 08/30677 was a lengthy application by a solicitor for the owners' corporation for orders by an adjudicator, which was granted.
The Adjudicator totally ignored my submissions in response, made without legal assistance, and accepted false evidence to the contrary from the owners' corporation. This false evidence was subsequently either withdrawn by the owners' corporation, or was ruled against on appeal, in file SCS08/42440. I note that the Adjudicator's name is no longer on the published list of Adjudicators at the CTTT.
Subsequently, I made further applications to the CTTT on a number of matters:
File SCS 10/43793 requested an order to invalidate a by-law, on the grounds that a proxy at an extraordinary general meeting of the owners' corporation was unlawfully disallowed by the meeting chairman. Another CTTT adjudicator ruled that the proxy in question was invalid, but her rationale was based on minor technicalities and was plainly wrong in fact. Her adjudication appeared to be prejudiced.
File SCS 10/41908 included a request from us for an order to amend an existing special by-law by adding our lot number to the schedule therein, on the grounds that the owners' corporation had unreasonably refused to do so. The same Adjudicator refused this application, again on minor technicalities. Had it been approved, it would have ended the dispute and saved thousands of dollars to both parties in further prolonged litigation. Again, this Adjudicator appeared prejudiced and in error.
A further request in this file was for an order for costs on the grounds that our appeal was successful and that the owners' corporation had acted vexatiously in conducting the dispute, in corrupting the adjudication process by presenting false evidence and in failing to correct it in a timely manner. This application was also refused by this Adjudicator on the mere technicality that while the tribunal set aside the original Adjudicator's orders, it nevertheless ordered us to reinstate the common property tiles, and that the owners' corporation was therefore no more than partly unsuccessful in relation to the appeal. This issue of the reinstatement of these tiles was always a minor technicality. The owners' corporation's prime objective was always the reinstatement of carpet in the dining area, where we had extended the kitchen and our appeal against that order was successful. It appears that the CTTT never grants costs to a successful appellant, despite CTTT Regulation 20 Costs Generally (5)(b) which says the Tribunal may order costs where it considers the case to be vexatious, be paid by the person who instituted the proceeding.
The CTTT website publishes its stated objectives, including efficient proceedings in an informal and inexpensive manner, with fair and consistent decisions. (It previously said without regard to technicalities, but that objective appears to have been dropped.)
My experience has been that the tribunal acts in a manner, completely contrary to these stated objectives. I have found the experience to be extremely expensive and totally unfair. I found both of the Adjudicators who dealt with my files to be prejudiced, unreasonable, and bound by their perceived interpretations of technicalities. I found the CTTT to be a feeding ground for lawyers instead of an inexpensive and informal process where justice prevails.
Witnesses at the CTTT are sworn to tell the truth, but many then provide false and misleading testimony, and later even admit that their testimony was not true, and nothing is done about it. I complained to the CTTT Chairperson of this and on 15February 2011, she virtually conceded this when she wrote, "The tribunal plays no regulatory or prosecutorial role regarding such breaches." It is common knowledge among legal practitioners at the CTTT that witnesses lie to the tribunal with impunity.
Suggested changes needed in the way disputes are resolved are as follows:
1 Train and instruct Adjudicators to find the essential truth of the matter and not to take decisions based on technicalities.
2 When it is evident that witnesses are not telling the truth, their testimony should not be relied upon, and appropriate penalties should be applied.
3 Whilst parties may employ professional solicitors, the Tribunal should assist and encourage principals to argue their own case.
4 Reform the Strata Schemes Management Act to make it simpler to understand, not only for laymen but also for professional solicitors.
5 Reform the current practices regarding costs. Discourage litigants from unnecessarily prolonging cases and escalating costs by awarding costs against them according to justice.
Keep it simple...
Have strata disputes heard initially by a panel of a strata lawyer, a strata manager and an experienced executive committee member based on one simple question: has a by-law been broken?
The verdict should be binding and let the losing party appeal to the CTTT if they don’t like it, wearing all costs if they lose.
CTTT
If ever there was an organisation that needed overhauling it is THIS ONE and the Department of Fair Trading. I can empathise with Smiller112 (18/1/2012) and have my own story to share.
I own one lot in a TWO lot scheme that was compulsory appointmented by the CTTT. To my horror the otherside is a lega person. His version of events that led to the scheme being compulsory administrated RELIED on the member not knowing much about strata schemes. This particlar strata has no common property and this is noted on the Land Titles Folio. BUT the member did not have any pursuasion as to the truth rather he lent heavily toward someone telling him how to decide. So much for the peoples court. This person knew that the CTTT had really no idea and basically capitalised on it - I think many others do the same. And for everyone's information the members are generally rude and arogant - demonstrating their superiority over the little people seems to counter to the role. But I digress.
My two lot scheme with only one insurance payment went into administration. The first years strata fees were $4800.00 and this particular Strata Manager refused and, yes he did refuse to say why the fees were so high. Many attempts were made by myself and legal representative but the strata manager HID behind the appointment. The strata manager refused to allow the owners in to the meeting and just made up the fees, sued when they were 14days late and refused to correspond with me or allow me access to the books. All this was told to the Department of Fair Trading who are supposedly the people who have the authority to help. No they dont. What they did was accept everything this Strata Manager said without question after all HE was the PROFESSIONAL and the layperson was cast aside. So back to the CTTT to have the orders revoked. NOPE - the member didn't even bother to listen as he FLICKED HIS WRIST in a gesture of get out - and ordered the strata manager to stay. Such arogance was unbelieveable.
The strata thereafter was appointed by the neighbour for the following 6 years. The othe owner used the CTTT lack of inquisitive nature to really find out about the scheme. However I as a layperson spelt it out as clearly as any one could. I provided them with a copy of the strata plan and the special notation - yet for reasons UNKNOWN to me they simply re-appointed this man each and every year. The CTTT were NOT interested in the fact he never held a meeting with the owners EVER never consulted them on anything and the minutes of the meetings only ever included HIMSELF - Totally dictatorial. I complained the past 3 Ministers of the Department of Fair Trading all of whom where lame. They simply allowed this to happen because the CTTT appointed him - Regardless of how he acted and how much of the legislation he breached. The Ministers office and my bug is you never get past the self important "Chief of Staff" as if they are on West Wing advising the President or something. The Ministers know nothing about the strata laws nor do the Department of Fair Trading. I put it to them over and over to show me where it states an OWNER is banned from attending a meeting. Even if you are unfinancial you can attend a meeting. But to ban an owner from the begining when no fees were established is extraordinary and I hold the CTTT responsible for what happened next.
For the past 6 years I have fought to have this so called self appointed dictator to be removed. It has cost the strata tens of thousands of dollars for the decisions he has made in isolation. In 2009 he took out a loan on the stata without the approval or knowledge of me as an owner (until after the event) he has always refused access to the financials and despite my numerous attempts to get the DOFT invovled they have allowed him to continue to operate in a manner that would be unacceptable in any other business.
Furthermore each time I complained to the Depart of Fair Trading this strata manager placed a special levy on me. In 2008 when I again took the matter back to the CTTT (what for they are useless) he charged the strata $2250.00 and never even showed up. My application was on the purple form not the green form and it went through the system and up to the date of the hearing when the arogant member said without even looking up from his papers "I can't deal with this - it is on the wrong form" THis form was given to me by the people at the counter of the Department of Fair Trading. When I tried to enquire as to what he meant - he just became aggitated and closed the file got up and left! There is no recall to the poor behaviour demonstrated by these so called members. And to remind everyone, they are paid handsomely to treat us like this.
The latest eposide into the CTTT was last year when the other side again applied for this strata manager to be reappointed on once again more lies. The other side makes things up about the strata such as we need maintenance we need to keep the garden tidy etc.. all of which are irrelavant when each owner owns their own external wall roof, guttering is serviced separately and even rated separately and all the land contained within each lot is owned by each owner. The only common property is the internal wall that divides the townhouses and because of the word strata the only other thing to attend to is the yearly insurance. Yet no matter how many times I said this and no matter how many documents I had it was as if the Tribunal member didn't want to know - or to hear - always taking deference to one of their own (a legal person). This brings me to the last Tribunal member - I show up at the appointed time, the other side sends in a letter saying they can't come. The member accepts the letter (I don't think it would happen if a lay person did that - ) saying how polite he was - but most interesting is the fact the member referred to the otherside as a Barrister. I had never mentioned this only referring to him as legally trained and the letter he sent which I asked for a copy, did not mention it. So how did the member know - could it have been the phone call the member found necessary to make when it was my appointed time for our hearing. I had to wait 15mins while the member went out to make a phone call - AND to whom? Then when he "heard" my story again with everything I had said for the past 6 years, he said , well the other side complains about the trees - "they are on my property and do not affect the otherside" I said. The member "mmm, maybe but the otherside say the trees above 10metres over the roof space belong to the STRATA" I could not believe it. The air space above the 10metres was common property is what this member was going to rule on to have a strata manager appointed for another year. And why because my neighbour said so. This member showed so much bias I thought he would run the case for the other owner by himself. It was disgracefull and quiet openly favoritism. This is how the CTTT operate. If they like you - good - if you are the legal person - goof for you too. It has nothing to do with the strata legislation until they use it as a weapon.
The CTTT should be accountable to the public - they should also show they are inquisitive rather than judgemental - this is supposedly the peoples court - low cost with access for everyone. What is turns out to be is an expensive exercise in frustration as the members think so highly of themselves to get through their day. Make them investigate more - this is in the legislation by the way. Yet they don't do it. Make mediation more robust. And above all listen.
After encountering this member the matter went over to hearing just recently and another member attended as I seriously was considering putting in a complaint of bias - not that I believe that would have much impact other than the usual insult of acknowledgement and thereafter business as usual. This member listened verbally to what was going on in this two lot scheme and how the other side had frequently misled the Tribunal made a mockery of it and had not been open and frank. Alll these are issues the CTTT can address but don't. I repeated the story about the trees and the garden saying there was nothing he could do as I own the garden - not the strata. And for the first time this appointment was overturned. After 6 long frustrating expensive years.
Now comes the problem of getting the records from the strata manager. I went to his office and asked for the records of the strata - he refused - what he did after that was totally unbelieveable. Now we have to enforce the return of the books - yet it is the role of the Department of Fair Trading to assist and fine or reprimand this person. My job to have them do their job.
The CTTT is a waste of time and energy and most people agree. There needs to be new and better system that is fair and equitable. Give these over paid public service the door and bring in proper mediators and more specialised skilled individuals (and I don't refer to other lawyers) to help sort things out for strata owners. I will post on another question to say what this strata manager did during his dictatorship.
Compulsary Appointment
I noted you comments with interest.
In past years I have been appointed as an administrator of Strata Schemes and have been very concerned regarding my role and responsibility to the owners. I have carried out my appointment by issuing notices of meetings in the normal manner, continuing to hold meetings with the owners, discussing issues and including owners in the decision making process. In the event that the owners wishes is in conflict with the legislative requirements I advise the owners of my decision, the reasons why and record the outcome as a minute of delegated authority.
The above practice assists the owners in understanding their legal requirements as well as assisting in an informed outcome. Owners should not be excluded.
Compulsory appointment practices - not so pretty.
A member of the strata Management Association was appointed under s.162.
He was appointed because he was the cheapest, a way to get in and make sure to look after your side. He wrote on his letterheads to the owners against whom CTTT orders were made to ignore the orders, continue to park on common property and ignore the by-laws. He refused to hold meeting or speak to me or respond to correspondence, which of course it is his fiduciary duty. He refuse to repair any part of the common property.
Last but not least, he appointed the lawyer for the owners mentioned above, who was his mate, to be paid from administrative fund. (thousands of dollars). What the lawyer did is strictly illegal. But then again, it is a jungle out there.
I wish you well Mr. Holloway, you are not common. I am sure you read the destruction that was the Andrews case. Three quarter of a million I believe!!
Compulsory Appointment - Include Owners
AGREE
You do right! Why can’t there be legislation compelling all compulsorily appointed strata managers/administrators to take a similar responsible attitudes and steps? What is so difficult about including the owners in an exercise in honesty, openness and transparency?
Yes, for compulsory strata managers/administrators to do things behind closed doors and not be prepared to come to any understanding of the issues that have brought people there or to even discuss problems can led to uninformed decision making by the strata manager and less than desirable outcomes (for the strata scheme). This can further compound problems. This has been our experience with a compulsorily appointed strata manager of our 2 lot scheme.
By-laws
Most disputes arise over matters that can be addressed by implementing my suggestions for questions 1-3 (see below).
What seems "unfair" to an Owner provides the nucleus for a dispute. When a dispute is taken to a referee, that person/s must adhere to the By-Law and not take another view and act accordingly. A by-law is just that - a law to be adhered to!
Q1 - The main areas I would seek to have changed would be in the area of AGM and Extrordinary Meetings whereby each Lot Owner would have only one casting vote regardless of their allotted units. This would allow a common ground on which to build a confident result to the matter being decided, would completly overcome "weighted" results and could redily nulify personal wants to the detrement of the majority of Owners. Strata fees can still be levied on the basis of allotted units so as to maintain the balance of outlays by Lot Owners.
Q2 - The Rights of Owners to terminate a rental agreement due to the tenant not abiding by the By-laws must be amended so that the tenant MUST vacate the premises within the allotted notice time. At present, a tenant can just ignore the notice of termination, knowing that the Owner must then apply to the Court for a Notice to vacate, and then if that is ignored, apply to the Sheriff to evict the tenant. In the meantime the matter is not resolved leading to more disputes, angry occupiers/owners and nothing more can be done - just wait!
Q3 - For AGM and Extraordinary meetings, provide Legislation that allows only one vote per Lot Owner on each and every matter that requires a vote to be taken. Also, a majority vote of 75% or more of those present, and voting, would allow the matter being voted on to pass.
Response to Q4
· enforcement action via the SDRO or the Local Court if the Appeal is lost
draw the line first
I see a few things here. I see a process that takes forever, i do not know what sort of time frame you think this can all happen in but i see a very long time.
I see a process with steps that are futile for some. I use my own SP as an example. We have the option of "mediation" at the plan level but it is relatively worthless so it is not used very often and if it was used often it would be a waste of time ...why ... because in 13 years there has been numerous OFT mediations and i cannot recall one mediation that was genuinely fruitful.
I see a step that involves issuing a notice to comply ... i am getting sick of reading about this step because as this forum reveals it is often EC members who are the offenders, do you really believe these people are going to send themselves a notice to comply? If this forum has revealed one thing it is that EC's are not always made up of good people and so until the matter of rogue EC members is addressed then it is dangerous to give EC's the power to hand out such things as penalty notices.
Can we please deal with rogue EC members before we even start talking about what powers to give these people?
Elsewhere in this forum Jimmy T mentions excluding EC members from being on the EC for 5 years. I got a notice to comply because the EC do not like me, it got retracted after mediation because it was clear, to any rational person, the EC had no justification to send the notice in the first place. The interesting part of mediation was that the EC actual knew who should have got the notice but sent it to me because they were, in my opinion, being vexatious scumbags. The OC could have been sued. Not one of those people should be on an EC but half of them still are and so i find it disastrous to suggest giving these idiots even more power.
I did a SCS matter which showed numerous and ongoing parking breaches by EC members, this was after the EC falsely claimed, in EC minutes, that the parking breaches had stopped. The EC were not about to send each other a notice to comply so they misled the OC in the minutes and then wrote a whole heap of rubbish in the "OC's submission" to CTTT.Pictures showed the breaches continuing over a long period including after the claim in the minutes. CTTT proved useless.
I am not alone in having a biased and shady EC so this is not just about the idiocy within my OC, let us be perfectly clear on that. I am not alone in having given up on CTTT because they are unbelievable.
I do not support anything that empowers EC’s until I see the framework these people are bound to operate within and I see that there is a mechanism to quickly address failures by the EC to act appropriately.
I love the idea of excluding people from the EC if they cross the line. Let’s talk about the line because that is what needs defining. When we agree on the "line" then lets talk about how long the exclusion is and then we can talk about what powers we give these people.
Strata Laws Online Consultation - Question 4 comments
I really don't think that this on-line "consultation" will have any influence on whatever the NSW State Government decides to implement with their reveiw of the SCMA, but as I like debate, I'll respond to your comments Ben.
You obviously have issues with the EC Members in your Plan, and I'd suggest that's why you have issues with my suggestions re Q4.
The existing provisions of the SCMA already provides a framework for the nomination / appointment of EC Members and for how they may collectively manage their Plan, and apart from the need for better training of such Members (which will probably make volunteers even harder to find), I don't support futher "regulation". Who's going to enforce a prescriptive "framework" of the type that you're suggesting; surely not the OFT, they're under-staffed and under-trained already!
Anyway, back to my original suggestions .... what I'm trying to achieve is a "Breach Management" process that embodies proceedual fairness and some "hoops" that an EC must jump through in order to achieve its objective - of ensuring compliance with By-Laws. Why would this process take a long time? It ceases as soon as the Breach ceases (and that's the objective), only progresses if the Breach continues, includes a Penalty, and ... an EC's efforts will FAIL if the person allegedly in Breach lodges an Appeal and the EC is found to have not followed the process!
In your pesonal circumstances Ben, if your EC had been required to speak with you about the alleged Breach of the Parking By-Law in the first instance you would have put them straight, and that would have been the end of the story! How easy is that?
I agree with you about the CTTT. They're Mediators are almost totally useless, as they're unskilled and apparently have a KPI that hinges on a successful mediation, usually brought about when the person in Breach agress not to be, and does nothing, or when the O/C Representatives find the process too hard to persist with.
Q4.
Some posting on Q4 leave no room for an owner to state if the by law was fair and legally complying with all other laws and regulations or not.
I don't think this is a balanced view at all.
There should be that a panel of open and fair minded people available at some level of government, to discuss and try and address issues rather than pressuring an individual to comply and pay up.
The CTTT does not meet this end at the moment focusing on majority views rather than fair and legal resolutions.
At a recent CTTT hearing, the Member had no argument for the owners corporation in regard to a by law being unlawful so she based her ruling to dismiss the application for revoke of by law on a precedent she had heard of.
She stated that the precedent was of a commercial property owner who had a by law tenancy restriction pertaining to his property made for to the commercial interests of the whole of the commercial strata property. This resulted in the owner of the property unable to lease his commercial premises to companies who's operation was not included in the fields outlined in the tenancy by law.
Though this is a breach of the Strata Schemes Management Act that states that a by law is not valid if it restricts the tenancy of a property, this CTTT member dismissed the application on this basis.
In this case, the member was acting on behalf of the owners corporation in finding precedents to support their argument and against the plaintiff.
Is that fair and reasonable conduct for a member? I don't think so.
Disputes in Strata
Originally OFT and CTTT organisations were established to represent the "Little Man".
Now the only advise we receive is 'GET A SOLICITOR.'
Most solicitors' appear to be as confused as their clients and are trying
to get a judgement on the Finding of a Past Hearing.
Big Business V The Disadvantaged.......No Money, No Result, No Hope.
Part Solution........ Quality of Members Hearing Disputes.
STRATA LAWS ONLINE SURVEY Q4
Strata Disputes should be heard by a panel consisting of the strata manager, a strata lawyer and an experienecd Executive Committee member.
The only question to be answered is whether a By-law has been broken. The verdict should be binding, and fairness is provided by the losing party being able to appeal to the CTTT if they do not like the outcome.
Blatant disregard of by-laws
There is a particular problem when by-laws are openly disregarded, but for any of the Executive Committee even to raise the issue exposes them to such responses as physical threats, services turned off at the main at inconvenient times, screamed abuse in public places and other actions such as to make their role very unattrative. Is there any way a third party can be brought into the case and pressing the case for neighnourly conduct?
CTTT
My main concern is with Q4
In 2009 we requested a decision from C.T.T.T. whether items on the agenda of AGM. should have been special resolutions.(fair reading advice line had confirmed they should told us how to proceed.)
It should have been easy! C.T.T.T. accused us of being “vexatious and frivolous.”
[edited by moderator] (Strata Managers) put in a quarter page submission and appeared at a hearings because of vexatious etc claims by C.T.T.T. charged us $756.
After 4 months almost having a breakdown decision stated. “The application is not in proper form” (Whatever that means.)
Why did they accept it?
Why did they proceed?
They also note that we wrongly stated section 65 of strata schemes act. I think it should have been 65A. Common sense should tell them it was an obvious error.
We never did get a decision if items on agenda should have been special resolutions.
Fair trading advice line should tell us immediately. Mediation is a waste of time. It can be refused.
Some suggestions:
1. Get rid of most of judges, spend the money to have liaison to help ordinary people through the red tape and craziness of C.T.T.T.
2. Inject some common sense into the system. Give a quick and simple decision for a simple request.
CTTT are an abomination
Do not get me started on CTTT. I suspect one can tell I am also far from satisfied with their performance. I constantly write to the Chair with reminders of the ongoing breaches of the Act in my SP because the useless individuals under her (adjudicators and members) could not make a sensible decision. The breaches in my SP are at every meeting so it is all too easy to just send off copies and highlight the breaches that are still going on, breaches that were the subject of adjudication matters that got dismissed. I make no secret that I feel the CTTT Chairperson and several members should be sacked.
CTTT cannot be a part of the future of strata; it is that simple. I am not saying all the work that comes out of the CTTT strata division is bad but I have seen enough to know the organisation as a whole is nothing short of being a serious problem that has aided in the undermining of consumer confidence in strata living.
I am not saying the following is a solution but anything is worth trying rather than keeping the current situation.
Take 2.5% of the CTTT annual budget. Have every unit in NSW pay an annual $10 “fee”.
You now have millions and millions of dollar to establish a strata specific resolution service that can use the infra structure of CTTT to deal with its paperwork shuffling and venues if needed but now strata cases can be dealt with by people other than those who cannot even do high school maths (I refer to a senior CTTT member who knows who he is). Any new body could use the CTTT infrastructure but its people would need to be independent of CTTT. If done well most of the money would be mostly used to pay knowledgeable people to deal with matters.
Any new body should be recognised as a body in which decision set precedent within the level. Any new body should have inquisitorial powers rather than the current adversarial system which an embarrassing system of dispute resolution.
No more opposing decisions to similar circumstances and no more hopeless decisions. If people do not like the decisions by the new body then a decision should be reviewable by a panel with inquisitorial powers and then if an applicant is still not satisfied, take the matter to a higher level, whether that be a local court or district court or even higher.
The point is if a new body is created and the decisions within the body set precedent for other cases dealt with by the body then outcomes will become more predictable and things will become better defined. This requires a body far more professional than the bunglers at CTTT.
Do not for a minute think CTTT can be fixed to become functional and useful to strata living. CTTT needs to be removed from strata dispute resolution and I would gladly pay $10 to see that happens. I’d pay $20; in fact name your price if that isn’t enough and I will consider it. If change comes at a cost then I am happy to pay as long as the Minister is sacked if his people waste the money.
Q4 - Changes needed for disputes
1. Formal strata disputes to be heard initially by a panel comprising:-
- strata lawyer/solicitor
- strata manager
- experienced Executive Committee member based upon one question: has a By-Law been broken?
The verdict should be binding but if the losing party appeals to CTTT because they do not agree, then they should bear all the costs if they lose.
2. Strata Laws should be reviewed at least every 5 years for precedents which require changes to the Law.
has a By-Law been broken?
has a By-Law been broken?
Can i just make that ... has a by-law been broken or has a section of legislation not been complied with?
Now i think that is much better because not all disputes relate to by-law breaches. I would reiterate that long before reform looks at by-law enforcement that legislation enforcement should be given priority. People seems obsessed with enforcing the little rules they have autonomy over (by-laws) and seem to care little for the legislation which is a higher set of rules.
CTTT - OFF WITH ITS HEAD (from Alice in wonderland)
For some years I had the misfortune to be involved in an extraordinarily bitter dispute in a strata scheme. Allow me some bitter words, uncouched by politeness:
When it started, years ago, a prominent Sydney Barrister said to me the following: " The CTTT is made up of second rate lawyers, on poor pay, who dont understand the Act they are supposed to administer". He went on to say:" you will have more of a hearing in petty sessions (local court) on a parking fine of $80 than a million dollars problem in a Strata building". (he was not completely correct - some members provide great service under great pressure, the bad ones take away any good) but he proved to be prescient or experienced. I dont wish on my worst enemies to experience my losses and waste.
The Law and Justice Committee of NSW Parliament just finished hearing submissions regarding the future structure of Tribunals in NSW. The CTTT came in for particular venom. (you are encouraged to read the submissions which are available on the parliamentary website). When ordinary folks like me and you complain or lose staggering amounts of money becuase of the CTTT it is a "whinge". But when all the property law committees of the Law Society of NSW made up of good barristers and QCs describe the CTTT in the terms they did, something has to be done. They even raised the issue of the Minister as having a conflict of interest in managing his/hers own department. We should all pay close attention to those members of the legal profession.
The Minister should immediately sack Kay Ransome the Chairwoman for presiding over this mess. He should make it a rule that no more than two thirds of members can be reappointed at the end of their term (some of the worse are there for life tenure passing away the years to retirement).
It is time to say to the CTTT: OFF WITH ITS HEAD.
Faiture of the CTTT as Dispute Resolution Body
Stratasperic you are so correct and here are a few examples;
This case involved a discreapancy in the accts of over $73,000 plus no levy details and a myriad of accounting errors. I guess I should know after being a professional auditor with one of the worlds largest acctg organisations. The following are some of the incompetent decisions made by the CTTT in 6 years of trying to get resolution
Responsibility
I hope the new strata law can address my issue:
· If a unit is flooding by water coming from other part of the apartment block, the owner cooperation should take responsibility for the damage caused, including the clean up cost and the damage to the flooring (in my case carpet).
· The owner cooperation then can take legal action to the responsible party to recover the cost to owner cooperation
The Reason for My Request (My Current Situation):
I am the owner of a ground floor unit of a high rise apartment. As the safety regulation, every unit in the apartment block has sprinkle installed. Since my purchase 7 years ago, the unit has been flooded by water coming from units in upper level for many times. The frequency is about once a year. The flooding were either caused by the bursting of the sprinkle or the busting of the water pipe in common area. The current strata manager and owner cooperation refuse to pay the cleanup cost , and the damage to the my carpet caused by the flooding. As the ground floor unit owner, I have to pay to the cleanup bill and the potentially the damage to my carpet. I think it is unfair to let me pay for the damage that is caused by someone else.
My Argument:
· A person should not liable for the damage caused by someone else – This principle is the foundation of almost every laws in Australia. The strata law should be the same. The current situation let me bear the cost of the flooding that is not caused by me.
· Home content insurance is not practically cover my cost – The strata manager argue that I should purchase home content insurance to cover the cost. But it is not practical. Because the frequency of the occurrence, the insurance companies either charge very high premium or refuse to cover. One insurance company charge $1500 excess for every claim plus high premium. So I dared not claim all of my cases.
· Unfairness to the owner of the ground floor unit – The water pipes and sparkles provide service and safety for all the units in an apartment building. The cost and risk associated with it should be shared fairly by all the unit owners. In the current situation, the ground floor units are burdened with extra cost and risk. Think about me and the owner who owns the unit about me. We are the same size, pay the same levy. But I have to pay extra for the damage bill closed to $1000 every year. The price of my unit is being seriously affected. It is just unfair.
QC’s proposal
I have been the Chairman /Secretary of a strata scheme comprising 19 units and 19 owners for the past twelve years.
I have had extensive business experience – Deputy Chief Executive of a major public company and a director of a number of public companies.
In my experience, the most challenging issue facing strata schemes is the vexatious owners and the behaviour of vexatious owners ; the owners who refuses to accept majority decisions and challenge decisions of the owners corporation in the Consumer Trader and Tenancy Tribunal essentially because they would prefer another decision.
Our strata scheme (which our strata manager has stated to be the most democratic and efficiently run scheme of the 100 or so schemes that she manages) has had two “owners from hell” who, over the past five years, between them have disputed about twelve decisions of the owners corporation, made four unsuccessful applications to the Consumer Trader and Tenancy Tribunal for an Adjudicator to invalidate decisions of the owners corporation and three unsuccessful appeals to the Tribunal to overturn the decisions of the Adjudicators to dismiss their applications. In additions, they lodged three unsuccessful complaints to the local council relating to developments on common property and garbage collection arrangements.
The decisions of the Adjudicators and the Tribunal confirmed the owners corporations view that each of the “complaints” had no basis in law; the owners sought to contest the decisions of the overwhelming majority of owners “ simply because they could” and the cost was only around $ 80 for each application.
However, as secretary of the owners corporation, I had to seek legal advice on the “complaints” and the processes of the Tribunal and spent countless hours preparing submissions to the Tribunal, seeking approval of our executive committee for the submissions and attending hearings at the Tribunal. In addition, the owners corporation is required under the Act to copy all complaints, communications from the CTTT and submissions to the CTTT to all owners – in our case photocopying and posting copies to 19 owners with the accompanying expenses.
I note that in a report on a proposals to the previous government on amendment of the Act, an eminent QC stated that “there are numerous incidents of serial vexatious application the strata schemes and some regime must exist which enables the CTT to refuse to accept applications from them and in the event such applications are made with the leave of the CTTT for costs, orders to flow against the applicant almost as a matter of course on full reimbursement basis”
I strongly support the QC’s proposal.
In addition, I understand that, under the current legislation, if an owner makes an application to appeal a decision of an Adjudicator, the Tribunal is required to hold a hearing.
I strongly recommend that where an owner makes an application to appeal a decision of an Adjudicator, the owner be required to make a written submissions to the CTTT stating where the Adjudicator erred in law and that the CTTT be given powers to dismiss the application without a hearing if it considers that the applicant has failed to make out a case that the Adjudicator erred in law.
Vexatious owners
There would be an element in my SP consider me a vexatious owner given the amount of CTTT cases i have initiated. Most have been to do with failures of the OC to meet with the requirements of the Act rather than questioning decisions of the OC at a General Meeting (GM). That is not to say there could not have been numerous cases based on majority decisions by GMs. There are a lot of GM decisions that involve ultra vires matters and each and every one could be contested. In fact one successful case was regarding a majority decision that the OC had no authority to make. Ironically it is also the case I have been most critical of in my feedback to CTTT.
Predominately there has been a focus, by me, on cases involving non compliances and like Bob Morrison i have found CTTT are not a good organisation when it comes to addressing problems. My SP has had compliance issues since registration. My SP was a Multiple Occupancy (Company Title) and went strata for security of title and because strata is recognised by financial institutions as a title of worth. The owners had no idea about what they were getting themselves into and 20 years on don't really want to know. We have all sorts of problems that have led to the SP having a reputation that precedes it to the detriment of the SP. Our property prices are on a par with MO prices - it is a disgraceful situation.
The following is just a few of the issues my SP has, granted non are going to see the place go bankrupt in a hurry but they all add up to make the place undesirable to all except a fringe element of general society;
Many of these matters have been to CTTT and CTTT's position has been to dismiss just about everything. My SP will be making a submission that will most likely highlight the time and cost of responding to case after case but perhaps if the OC spent a fraction of that time and cost on being compliant then they wouldn't be in such a situation.
My SP is a large SP so every time there is a case there is supposed to be a 100+ copies of the application mailed out. My SP has taken the liberty of not bothering to mail most of any particular application out to owners. The action is contrary to the Act but who is going to do anything about it? The EC have taken it upon themselves to vet what they mail out, claiming it costs too much.
I see in another post the following; "I had to seek legal advice on the “complaints” and the processes of the Tribunal and spent countless hours preparing submissions to the Tribunal, seeking approval of our executive committee for the submissions and attending hearings at the Tribunal. In addition, the owners corporation is required under the Act to copy all complaints, communications from the CTTT and submissions to the CTTT to all owners – in our case photocopying and posting copies to 19 owners with the accompanying expenses."
If the cases are baseless then is there a need to respond to them? Why do EC members run to solicitors if they get an application? If the matters are vexatious then there is no need to see a solicitor or to respond, let them be seen as the vexatious action they are.
The cost? Even in my large SP the cost of mailing out a received application is fairly trivial - it costs $3-5 per unit for a large envelope, a stamp and 20-50 pages of application, the people who have to do the work are volunteers, who are generally on welfare (lots of free time), and they all get honorariums come AGM time. So even if my SP has to deal with 6 applications in the matter of a few months the owners are only $20-30 worse off and that is nothing compared to the loss of value on their property that comes from the nature of the SP or the money they are wasting through their silent endorsement of the poor management of the SP.
I know of one SP where it is claimed there is a serial applicant. The SP is self managed by a CTTT member who has, surprise surprise, never had a decision made against him in the many applications made regarding the running of "his" SP. One owner in that building said "just because there has never been a successful application does not mean the CTTT decisions are correct" - how true that is.
People like to criticise others who make numerous applications. In B Morrison's post there is the suggestion the applicants want nothing more than a different outcome, but OC's need to act reasonably and it is also true an OC can disadvantage individual owners just by the very nature of the Act. For example in my SP one lot owner sold her lot after failing to stop the OC from burying bodies 25m from her boundary, two others will also sell up. The OC squealed, like a pig in a slaughter-house, about the amount of CTTT cases that owner brought against the OC trying to stop the burials - was she a vexatious complainant who wanted a different outcome to that determined by "the majority" or was she a disproportionately disadvantaged person being dealt a rough outcome by an unreasonable majority? The same OC has had one SCS matter come back stating the OC were being unreasonable when the OC expected the same owner to move, bulldoze or take a chainsaw to a house.
Majorities can be unreasonable and even if they are not being unreasonable they may be considered or perceived to be being unreasonable by a minority or an individual.
I am aware of several SP’s who have been the subject of “countless” failed applications. That does not mean the CTTT decisions were good decisions or the cases unwarranted. CTTT is an abomination and it is incorrect to draw any conclusion based on a CTTT decision; so if someone makes a dozen applications and they all fail is it a case of unwarranted applications or are CTTT just being true to their reputation of being useless?
You say: “I strongly recommend that where an owner makes an application to appeal a decision of an Adjudicator, the owner be required to make a written submissions to the CTTT stating where the Adjudicator erred in law and that the CTTT be given powers to dismiss the application without a hearing if it considers that the applicant has failed to make out a case that the Adjudicator erred in law.”
I have seen enough CTTT cases where the error is not in law but is something as simple as the CTTT member not being able to do simple maths, or read, to accept the concept you put forward. Regardless of that; CTTT has no future in strata living so any suggestion that CTTT does this or that is not really addressing the problem that CTTT is – they should be gone.
Some of the ideas about a new resolution body utilising methods similar to the Supreme Court Equity division are good, some of the methods currently used in Qld are good. Both these methods will help those who claim they victims of serial vexatious applicatants.
I do agree that any new resolution mechanism needs to have the ability to weed out baseless matters without limiting a persons ability to make applications.
Q4
Firstly, disputes that cannot be resolved by the owners at a meeting of the owners without the intervention of a strata manager should only be bought before Fair Trading under COMPULSARY, MANDATORY MEDIATION.
Question 4
Legislation should be altered to make enforcement of by-laws obligatory. Currently the CTTT is often not helpful as it rules in favour of the offender when a by-law clearly has been broken. There should be fines for breaking by-laws and these fines should be paid to the strata plan's sinking fund not to the CTTT.
CTTT Failures & Recommendations for CTTT Improvement
Feedback vital for strata regulatory reform
Reforming the strata and community scheme laws is a big and challenging task. Unlike the previous Government, which put these issues in the ‘too hard’ basket, the NSW Liberals & Nationals Government is determined to get it right. The sector will only continue to grow and develop if we provide a regulatory framework that supports innovation, reduces red tape and sets clear rules for everyone involved.
I have read a lot of the comments and I am happy to see so many constructive suggestions have been put forward for how the law could be improved. Parking, pets, proxies and passive smoking are some of the recurring topics which were only to be expected. However, I have been pleasantly surprised by the breadth of issues the forum has helped to identify.
Many of those leaving comments have done so on multiple occasions or in response to issues or ideas raised by others. This type of positive interaction between stakeholders would not have been possible using more traditional consultation methods.
However, it is easy in a process like this to focus on the negatives. There are no doubt provisions in the legislation which are working fine and do not need to be changed. I am equally keen to hear about the good bits of the law as well.
The Hon Anthony Roberts MP is the NSW Minister for Fair Trading. Prior to becoming the Member for Lane Cove, he was Mayor and Deputy Mayor of Lane Cove Municipal Council. Anthony proudly served with the Australian Army on peace keeping operations in Bougainville as part of Operation Bel Isi. He was also an adviser to Prime Minister John Howard.
DISPUTE RESOLUTION
Have Strata disputes heard initially by a panel comprising a Strata lawyer, a Strata manager and an experienced Executive Committee member, based on one simple question: Has a By-Law been broken? The verdict should be binding and the losing party can appeal to the CTTT if they don't like it, wearing all costs if they lose.
Dispute Resolution
1. Mediation in disputes should result in a BINDING RESOLUTION.
2. There should be a limit to the number of times a party to a dispute can object to the outcome of the same dispute.
mediation
The SSMR 2010 state:
24 Attendance and representation
(1) A mediation session must be attended by each party or by a legal representative, or other representative, having authority to settle the matter.
(2) Other persons may attend a mediation session with the leave of the mediator.
This is not exactly the case. The last time I was at mediation I questioned this regulation. Those at mediation, acting, on behalf of the OC, were expected to take any outcome back to the EC for ratification. The mediation was not going to settle the matter. This mediation was attended by OFTs strata guru Michael Courtney.
The mediation I refer to was attended by one EC member. The OC elected 9 but only one came to mediaition. The suggestion that a representation from the EC should have the power to bind the whole OC i find a little frieghtening. Even had the whole 9 EC members shown up i still would not like to see them have the power to bind the OC.
In 2002 we had a breach of pets by-law mediation where the mediation group agreed to allow an owner to keep a dog. The OC has a ban on dogs, this owner was aware of the ban when she got the dog and this owner even voted to have the by-law created. That the mediation outcome was contrary to the by-law saw the veto, of Schedule 3 of the Act, used at the EC meeting when the EC tried to ratify the decision.
If mediaition is to be binding then OCs need to understand that when they elect the EC they are electing a small group who then have the power to bind them at mediation. That small group (the EC) could end up being one person at mediation if the EC only send a delegation to mediaition - I do not think it is a good idea.
2 Lot Schemes - Easy Solution
It should be much easier for 2 lot schemes to carry out repairs to common property in the case where a lot owner will not agree. If a 2 lot scheme has a strata manager then that strata manager should simply be given the (casting) vote to ok repairs. As simple as that! And the strata manager should also be allowed to vote on insurances, compliances etc.
AGREE 2 LOT SCHEMES - LET STRATA MANAGERS VOTE
GOOD SOLUTION
I agree. Then in 2 lot schemes the compulsory appointment of strata managers with all the powers of the Owners Corp and Exec Committee would not be necessary. A strata manager would still need to be appointed where there are disputes about management – but it would certainly solve a lot of problems and rigmarole if the strata manager could vote just like a lot owner to approve repairs to common property, insurance and raising special levies. Then if the strata manager does do not their job properly the other lot owner could still apply to the CTTT for a change in strata manager.
Problems and Solutions
In answer to many of the problems, we should start providing suggested solutions especially after reading many of the comments from this forum. Here is a brief list of major problems and possible solutions for consideration as I see them. Perhaps these can be added to:
Problem: The CTTT use of Discretionary Powers. There seems to be a systemic failure of tribunal members to fully understand the application of the discretionary powers they have been given. Discretionary powers of a tribunal member does not over ride the mandatory requirements of the law (unless the complaint is frivolous or vexatious) and the process of a decision should follow that outlined above.
Mediation - Code of Conduct
Many disputes go to mediation. Participants engaging in compulsory mediation should to adhere to a strict Code of Conduct and this should be reinforced by CTTT and the mediator. I am hoping that the CTTT is now up with the times and giving people comprehensive information about Code of Conduct requirements and not tolerating breaches of conduct....otherwise mediation sessions will continue to either be a complete waste of time or do more harm than good!
OPEN YOUR EYES
The CTTT should take note of people who lodge multiple applications for hearings but then not turn up for hearings and those who cancel just prior to hearings. This is after directions hearings have been delayed, postponed and attended. This is clearly vexatious behaviour. People who cancel, delay, make themselves unavailable for hearings for lengthy periods of time (then not turn up) and make false statements to the CTTT should get a little black mark against their name. The CTTT needs to open it's eyes. People in 2 lot schemes are abusing the system.
Tobacco smoke drift
From ASH Australia:
It should not be necessary for individual residents to make lengthy complaints seeking protection from SHS. Protection should be enshrined in legislation and associated legal processes and strata management enforcement of smokefree legislation and by-laws. Where individual complaints occur, there should be a clear pathway for the complaint to be quickly and effectively resolved. Strata managers should respond to any SHS complaint as a matter of urgency, bringing parties together where possible to resolve conflicts, or taking further action to ensure no delay in protection of residents from SHS hazard.
disputes
I feel there are a number of issues that need to be resolved in this area, as outlined below.
strata ombudsman
Worth considering given the CTTT Chair has done little about keeping those circus performers (clowns) at CTTT accountable.
resolution
On complaining to the Chairperson of the CTTT that the Adjudicator was wrong and
appeared to be prejudiced, her response in part was:
"Your comments about (Adjudicator name withheld) not making orders under sections 190
or 191 of the Act are misguided as those sections relate to the Tribunal only. (She)
was determining your applications as an Adjudicator and did not have the legislative
authority to make the orders you sought. Likewise, section 186 also relates to
Tribunal orders and there is no similar provision in the Act relating to
Adjudicators."
I submit that the process of dealing with the CTTT is evidently so complex and
legalistic, that a layman has no chance of success without engaging a lawyer. In my
experience, even the lawyers do not understand the Strata Schemes management Act, and
make errors which are horrendously costly to their clients.
Bob Morrison
Bob:
I couldn't agree more with all of your comments. The Dept of Fair Trading and the CTTT are unfair and unreasonable. The CTTT is a feast for lawyers and the ordinary owner seeking a fair go and justice is left to swing in the wind. Adjudicators are ignorant of the law they enforce and act unreasonably and unfairly. The CTTT chair has one tool - a big bucket opf whitewash. Witnesses lie to the CTTT with impunity. It needs some one with courage and the authority to put a broom through the lot of them.
hear hear
It needs some one with courage and the authority to put a broom through the lot of them. Hear, hear!
And if that someone does not have the courage then that someone and his party should not be re-elected.
CTTT
The CTTT is just too big and Strata suffers.
There is evidence that some adjudicators do not apply the SSMAct particularly S62.
Well done to the Minister for recognising there is a problem with strata law and if it takes two years to do the review and make the necessary changes, it will be worth while for many thousands of NSW residents
DISPUTE RESOLUTION PROCESS
Present process via CTTT cumbersome, time consuming and ultimately toothless: a fine of <$500; wow, what a deterrent!
Just one example, the inability to enforce strata parking by-laws amply demonstrates this.
Neither the police nor the local council are empowered to act and it is illegal to apply effective deterrents, such as the threat of tow-away or the application of wheel clamps.
Even if the owner of an illegally parked vehicle can be identified, they are usually long gone before the present CTTT process can be accessed. In the meantime residents can spend days inconvenienced by someone who has illegally appropriated their parking place.
Legislation needs to be changed to apply normal sanctions to illegal parking...to empower police or council officers to levy parking fines in event of breaches of regulations. anyone wishing to contest such fines still has access to courts, so basic rights are protected against unreasonable prosecution.
Unfair levies
I live in a block of 7 units; 4 older larger units and 3 smaller, lower value units.
The levies were unfairly set so that the owners of the smaller units pay a far higher percentage of the total levies.
Some of the winners in this arrangement, i.e. the large unit owners are totally resistant to any attempt to negotiate fairness.
There needs to be a mechanism to redress this anomaly at minimal cost.
Are there any changes
Are there any changes needed to the way disputes in strata and community schemes are resolved?
A blast from the past
34 The Strata and Community Schemes Division of the Tribunal is peculiar in that the provisions of the Consumer Trader and Tenancy Tribunal Act 2001, s 28(5)(h) requiring the Tribunal to allow an applicant to withdraw their application, does not apply (pursuant to ss (7)) to proceedings arising under the Strata Schemes Management Act 1996. Accordingly there is no formal process available for an applicant in the Strata and Community Schemes Division to discontinue their proceedings except by dismissal by consent of the applicant.
Jeffery Smith: Owners SP 60724 v Stanton (Strata & Community Schemes) [2012] NSWCTTT 3 (4 January 2012)
I like this particular quote because it highlights the diabolical nature of the current dispute mechanism.
I had a case that was successful, SCS 10/34078. The OC and two other co-applicants appealed the decision in SCS 10/52588.
After CTTT butchered the paperwork when confused about who the applicant and respondent were, after a directions hearing that only the applicants knew about, another directions hearing was set to be conducted by phone.
At the hearing one of the 3 applicants was present by phone and he wished to withdraw the matter. What followed was laughable.
The member accepted the request to withdraw the matter. I quoted the CTTT Act just as member Smith does above. The member dealing with my matter would not have a bar of it and allowed the matter to be withdrawn mumbling some nonsense about natural justice. I have the page in front of me that says;
“… application was withdrawn”; G Durie 30/03/11.
I took the matter up with CTTT Chairperson K Ransome and what a complete waste of time, 6 months, that was.
I believe anyone who can read will realise that what member J Smith says is true because it is clear in the CTTT Act that proceedings that arise from the SSMA cannot be withdrawn. So why do Senior CTTT members who are so called strata specialists allow matters to be withdrawn when there is legislation to the contrary?
Appointment of those who know the law.
45. We will not make any justices, constables, sheriffs, or bailiffs, but of such as know the law of the realm and mean duly to observe it.
Magna Carta 1215
Key officials must be knowledgeable about the law, and willing to obey it. It is from the Magna Carta and the “doctrine of reception” made it law in this Country. The High Court of Australia still recognise such key documents as the Magna Carta 1215 and Bill of Rights 1688 as corner stones of our legal system.
Everyone is entitled to officials who know the law and mean duly to observe it so why do we have a bunch of poorly trained people, who are happy to ignore the law, making judgements.
Some people should be sacked before reform can start and when reform starts then do take note of part 45 of the Magna Carta and see that those appointed know the law and mean to observe it.
Withdrawing applications
Dear billen ben
You may be interested to know that a minor change to the CTTT Act has been made to address this issue. Applications under the SSMA can now be withdrawn. This was part of the Statute Law Reform Bill which was passed by Parliament late last year and started at the beginning of this year.
Regards
Adam Heydon
Fair Trading Policy
the large scheme should get rid of the Executive committee
My experience, the large scheme should get rid of the Executive committee. Most of Executive Committee members, they don’t know the legislation, buildings and don’t know how to manage the buildings. Why do we need an Executive Committee? For the large scheme, the Owners Corporation has hired strata managing agent and building management. We believe that the more people involved in the building management, more corruptions, more owners disappoint the government and legislations and more pressure for living at strata title. We suggest that the strata managing agent and building management should totally take responsibilities to look after the building and not the Executive Committee. For my experience, I believe that the executive committee never tries to solve owners’ problem and instead of trying to not to solve owners’ problems and not to comply with the Act.
Finally, we believe that the disputes are most created by the Executive Committee members and some large Strata managing agent. As the Executive Committee members have office bear insurance cover and they can use insurance policy or Owners Corporation’s money to hire solicitor to against individual owner’s complaint. The large strata managing agents don’t care about the legislations.
If government really wants people to happily live in the strata title apartment, the Tribunal should make the legislations work.
Interesting concept
If our, large SP, EC was removed then it would definitely improve the mangement of the SP.
I have commented on this forum regarding the position of the SSMA and management, i.e. that the Act envisaged owners would manage their SPs.
It is an outdated concept, particularly for large SP where it is all too often the case that ECs are just a collective of self important pepole who feel empowered because somebody has elected them.
I agree that ECs are not in the interests of a smooth running large SP. In other posts i submit that the self management of large SPs should be restricted to certain tasks, i submit that the EC of a large SP should have its role scaled down.
The idea of completely removing the EC is not such a bad idea, perhaps the OC of large Sps could have an advisory committee who works with the managing agent.
If large SPs are to be put in the hands of managers then the professional conduct and accountability of managers would need to be improved and there would need to be strict and enforcable rules governing this type of managment.
Issues for persons with disability
Members of the Consumer, Trader and Tenancy Tribunal ought to be provided with professional development in disability rights and disability discrimination issues. There ought to be appropriate persons with specific expertise in disability rights appointed to the CTTT. Fair Trading NSW ought to provide funding to establish a specialist tenancy advice and advocacy service for persons with disability. Existing TAAP's often do not have the experience, knowledge or other capacity to deal with the specific issues encountered by persons with disability in strata schemes and other tenancy arrangements. The CTTT Act ought to be amended to provide that appeals to the CTTT and Disctict Court are to proceed as hearings de novo rather than merely on questions of law. This is necessary to overcome the current grossly unfair situation that applicants require leave to be legally represented before the CTTT, are rarely represented in any event, but nevertheless are bound by any technical deficiencies in the conduct of their case at first instance.
General Protections under the spirit of Strata Legislation
I am a Lot owner in a strata plan that has been managed by a particular Strata Management service since 2006. I have recently filed an ethics complaint against this strata service, but have no recourse to restitution through the CTTT or any other body. We have had to pay many thousands of our own dollars in remedial works on the building's roof to keep our unit habitable and when we disputed a special levy raised to sue the initial developer do the same (an activity we have been repeatedly conducting for the 10 years we have owned the Lot), saying we had carried out the works already (and in full view and knowledge), the Strata Manager waited the Section 80 sanctioned 30 days and then started full debt recovery proceedings against us without our knowledge, including serving a court claim to our tenants. By the time we were made aware of what was happening we were liable for thousands of dollars in legal costs and had 4 days to prepare a legal defence . The strata manager and their lawyer disclaim any responsibility for making us aware of the proceedings, despite our Managing Agent formally declaring they had never received any correspondence on the matter. This is not the first time we have been put in a disadvantaged place by our Strata Manager and we feel helpless to defend ourselves. It is important to note that our Executive Committee has been ineffective for the same period and residing outside the country has prevented us taking a more active role. Our Managing Agent advised that there would be no sure outcome through the CTTT process and we would have to pay an expensive hourly fee to be represented remotely. We also note that the work the Strata Manager does in assistance of the lawyers, both through the builder's litigation and in debt recovery provides additional fees, suggesting there may be no incentive to seek dispute resolution through negotiation that limits damage to both parties.
We believe it should be explicit in the Act that dispute resolution should in the first instance involve contacting the Lot Owners to negotiate, rather than allowing them to be taken straight to the courts.
By-law infringements
The vast majority of strata owners seem to harbour an intuitive feeling that if they complain about an issue to an executive member (typically the secretary), then that person will take over and resolve his/her problem. Much like if they were to go to the local police, the police would tend to take over the investigation and pursue the issue.
Owners don't seem to get that it's the Owners Corporation who have 'enacted' the by-laws therefore it's the Owner Corporation, as a whole, that's primarily responsible to manage and apply its own by-laws. And that every owner, themselves included, have equal responsibility to monitor and apply the by-laws that provide governance for their own and individual Strata Scheme.
Executive members don't realise that they have specific responsibilities when it comes to by-law infringements. Also owners don't know how to put their case to the Owners Corporation. In both cases the EC member or owner would need a strata lawyer to decipher the current Act. A deep understanding of s45 (Function to enforce by-laws) and s138 (Failure of the Owners Corporation to exercise a function) has to first obtained before a plan of process can be acted upon by an individual.
To address this problem, I think that legislation similar to that used in Queensland would go a long way to help. It's a straight forward process that sets out the steps and the required interaction of the owner and the Executive Committee. It would be hard for an individual not to understand their role.
Refer Queensland's Body Corporate and Community Management Act 1997 - (s182 – s188) for a reasonably well laid out process. Although not a panacea for every by-law infringement, it would go a long way to have owners understand that they have a role to play in the governance of their by-laws. And, as a by-product, the more owners who are actively involved in their Strata Scheme, the better the scheme functions.
By-law infringements
The vast majority of strata owners seem to harbour an intuitive feeling that if they complain about an issue to an executive member (typically the secretary), then that person will take over and resolve his/her problem. Much like if they were to go to the local police, the police would tend to take over the investigation and pursue the issue.
Owners don't seem to get that it's the Owners Corporation who have 'enacted' the by-laws therefore it's the Owner Corporation, as a whole, that's primarily responsible to manage and apply its own by-laws. And that every owner, themselves included, have equal responsibility to monitor and apply the by-laws that provide governance for their own and individual Strata Scheme.
Executive members don't realise that they have specific responsibilities when it comes to by-law infringements. Also owners don't know how to put their case to the Owners Corporation. In both cases the EC member or owner would need a strata lawyer to decipher the current Act. A deep understanding of s45 (Function to enforce by-laws) and s138 (Failure of the Owners Corporation to exercise a function) has to first obtained before a plan of process can be acted upon by an individual.
To address this problem, I think that legislation similar to that used in Queensland would go a long way to help. It's a straight forward process that sets out the steps and the required interaction of the owner and the Executive Committee. It would be hard for an individual not to understand their role.
Refer Queensland's Body Corporate and Community Management Act 1997 - (s182 – s188) for a reasonably well laid out process. Although not a panacea for every by-law infringement, it would go a long way to have owners understand that they have a role to play in the governance of their by-laws. And, as a by-product, the more owners who are actively involved in their Strata Scheme, the better the scheme functions.
Owner Education
The vast majority of owners don't have a clue as to what laws apply to, and what is expected of, them when they buy into a Strata Scheme. It would be utopia if new owners were required to pass a competency test similar to getting a motor vehicle driver's licence. But that's just wishful thinking.
What can be done, at least, is to provide information to new owners. As part of the Section 109 Certificate to Owners, each owners should be provided with a set of the adopted and registered by-laws and be provided with a copy of OFT's Strata Living booklet. I know “you can lead a horse to water, but you can't make him drink”, but it would help give new owners, who are interested in understanding their new living environment, a good place to start.
At the moment it is bizarre situation that a tenant has to be given a set of the current by-laws [s 46] but a new owner doesn't get a set at all!
(refer the Act - s109 and the Regulations - Sched 8 - Form1 – part 12).
CTTT/OFT to provide a mentoring service
Most people who appear before a hearing of the CTTT are overwhelmed by the procedure and flounder due to their lack of understanding of the requirements of putting a case before an adjudicator and where the adjudicator is unable to assist one person without being seen as applying the law in an uneven manner..
Often the applicant or respondent leave a hearing with a feeling the CTTT is useless and without understanding when in fact and in a lot of cases it has been a failure of the individual to adequately present his/her case or to understand the system.
Although I am aware of the significant effort the CTTT/OFT have recently put into providing educational videos and other materials for the public via the internet, I think it could go further.
I propose the CTTT / OFT makes available an hour mentoring session before the hearing and where an applicant or respondent may pay a fee to get direct advice as to what to expect for his/her particular case and how to best put his/her case to the adjudicator. Here a CTTT mentor could assist the applicant/respondent with the planning of a scenario and could advise on the probability of success/failure. I would expect the CTTT/OFT to put all the caveats in place but it would be a significant help to the vast majority who would be experiencing a legal hearing system for the first time in their life.
I know solicitors can supply a similar service but I think it would lift the CTTT's standing in the community if they were to provide an option and at a subsidised price.
Dealing with Disputes
Mediation should not be compulsory as there are certain situations whereby it is just not practical or justified.
A separate Strata & Community Title Division should be created with an enclave of strata experts similar to the approach taken by the ADT in its dispute resolution process.
Something fundamentally flawed in the way the CTTT operates
I have never in my life read a document where 90% is devoted to criticizing and condemning the CTTT. It is obvious there must be something fundamentally flawed in the way the CTTT operates. I would suggest:
1. Firstly, remove the Strata Division from the CTTT portfolio.
2. A new group of Field Officers should be trained in the skills of Mediation, with an advanced level of building knowledge and could service Strata Plans where disputes arise. Such Officers could respond to a call for assistance in the same way as say, the Ambulance Service. For difficult problems, they could contact the Senior Officer at base for advice.
Disputants are generally on their best behaviour in the company of a Mediator and try hard to create a good impression of themselves. This makes it so much easier for the Mediator to find a resolution that both parties can agree to and live with.
I believe that people feel more comfortable and relaxed with a lay person in their own age group in the comfort of their own Strata Unit. The success rate for resolving disputes with the Community Justice Centre is said to be about 90%; a process taking about 90 minutes.
Surely this arrangement is much closer to ‘The Peoples Court’ than the current legalistic approach.
Alternatively a Strata Manager with accredited mediation skills should be available to assist residents in dispute. A fee of say, $50 per hour per Mediation would be reasonable. Disputants could still choose to go to the Civil Court.
Some years ago, I completed the Certificate IV (Training and Assessment) Course which enabled me to update my skills and use them in a far more effective manner. It should be mandatory for Strata Managers to update skills say, every three (3) years in an elective nominated by the Department.
I feel quite strongly about the above suggestions and believe that they should be encouraged and given a trial period.
DONT SUFFER IN SILENCE – DON’T PUT UP WITH LOUD NOISE
Approach offending person – talk it through – negotiate.
If this doesn’t work the Police NSW can be very helpful in respect of complaints of loud and continuing noise by issuing a Noise Abatement Order to the offender. This order lasts for 28 days.
Local Municipal Councils have the power to issue a Noise Abatement Order lasting up to 12 months. If the Offender is a tenant, the Letting Agent should be notified immediately.
For more serious offences such as stalking, harassment, abuse, intimidation, writing defamatory letters etc, an AVO (Apprehended Personal Violence Order) can be issued by the Police.
It is my fervent hope that with the review of the Strata Laws and a change of the Old Guard with the younger generation at the helm, the future for Strata Schemes looks rosy.
Strata disputes
Changes needed to improve resolution of strata... disputes
Q4
Mediation seems always to favour those who breach the Act. There was a time when contravention of sections of the Act were treated seriously by The CTTT. It is discussed by long term owners and strata managers that there is a very different view these days at the CTTT.
Disputes should be heard by someone qualified in law. Having recently attended what I regard as the worst mediation ever in relation to removal of load bearing walls where legal argument was considered unacceptable, I would like to point out the only reason the OC would be approaching the CTTT is because there has been a clear breach of law.
Proxy farming needs to be addressed. NSW would do well to follow Queensland’s legislation and limit the number of proxies to a percentage.
Question 4
YES, YES, YES.
1. Separate the dispute settling provisions from the CTTT, as it needs experts on Strata law and dedicated persons to handle disputes, without being bogged down in the broader CTTT matters.
2. Mediation needs review. It is too slow and allows an executive committee to stone wall and not reach any comprimise, knowing there is then a time consuming and costly procedure to take a matter further.
3. A separate Strata tribunal would enable applications to be made direct to the Strata tribunal without delay and many disputes could then be resolved between the parties in a conciliation process such as now happens at CTTT. An improved dispute settling process will eventually make strata laws better understood and hopefully reduce disputes. A stand alone Strata Tribunal would also be in a position to instigate and assist in better education and training service delivery to stakeholders in NSW
4. The process of written application to an adjudicator is outdated as is is much easier for both parties to directly present a case to a member at a tribunal.
5. There is currently a dispute in our strata scheme in which the application to the adjudicator was made in August 2010, the decision of the adjudicator was received in March 2011, the appeal application lodged in March 2011, a telephone directions hearing in May 2011, an appeal hearing in September with a adjournment until 1 December 2011, which is at 28/2/12 still awaiting a decision of the CTTT. Mediation for this matter was held in January 2010.
Had we been able to make an application direct to CTTT without mediation I believe the dispute could have been heard in 2010 and the decision made then by the CTTT. Such a process as in this dispute, is time consuming and costly to The Government through the CTTT and the parties to the dispute.
STRATA REVIEW PANEL - SUGGESTION
That some of the persons who have submitted creditable submissions and suggestions re this forum be invited to become members on any reveiw panel for the improvement of strata laws. This way you will get a broader view of the real problems from victims who have been subjected to the incompetent processes and decisions of the CTTT. If you want real reform then invite these members to participate. In this way you may get experienced opinions that could lead to real reform.
Bob Morrison
By-law costs
There is currently a financial cost for the owners corporation to change the by-laws. This should be removed to allow the owners corporation (which may change often) to be able to amend by-laws more easily to reflect the changing attitudes and standards of the constantly changing strata block residential community.
General comments
Disputes suggest a lack of coverage and/or clarity in the legislation. There should be provision for the Department of Fair Trading to provide guidance and to establish a publically available list of this guidance. Mr Stowe's suggestion of a free Community Justice model may have merit if supported by carrots (easy process) and sticks (fines and/or costs for frivolous action). Any system should not provide an avenue of delay for parties contesting obvious breaches of by-laws.
Tribunal process
The CTTT process needs a major shake-up.
Adjudication, where everybody writes in and a decision is made on the merits of written material, is time consuming, costly and disadvantages those with poor English or writing skills.
If mediation fails matters should be able to be taken to the Tribunal directly for a hearing. The adjudication step is not required in any other area over which the CTTT has jurisdiction. What makes strata disputes so special they need an extra layer?
After all the Adjudicators are just Tribunal members wearing another hat.
CTTT powers and jurisdiction
All strata related disputes should be able to be taken to the CTTT. Too many matters are dismissed on as technicality through lack of jurisdiction. That doesn't mean the dispute goes away. Just that the parties have to do nothing or go through the court system. If you are going to have a separate low cost Tribunal why not make full use of it?
The Tribunal should be given a much wider range of appropriate order making powers. For instance, if a scheme is dysfunction all the Tribunal can do is appoint a compulsory agent under s162. This is a major step and a rather blunt instrument. Why not allow the Tribunal the power to just dismiss an agent, remove an EC and require another election, dismiss a particular office holder who is not carrying out his/her duties or order that steps be taken to address the dysfunctional issues?
Dismissal of an agent
We all know that some agents take on too many buildings or are just incompetant or lazy.
The hard part is when you want to get rid of them. You have to call and hold a meeting, but the agent is the one who has all the contact details for the owners. The don't want to hand it over citing 'privacy reasons' and are obviously not too keen on organising a meeting to get rid of themselves.
Even when you finally do it they often argue about the ammount of notice or refuse to hand back the books and records.
A simpler, more effective way for a scheme to dismiss or change agents is needed. Perhaps a letter signed by a certain percentage of owners should be sufficient.
Debt recovery
Owners who don't pay their levies is becoming a big issue. On the other hand some schemes use the fact that an owner may be one or two dollars behind as an excuse to deny them their voting rights. Sometimes an owner only owes one quarter of their levies but are hit with a bill for thousands when the lawyers and debt collecting agencies become involved.
I think a fairer system would be if:
much fairer
I think a fairer system would be if:
Absolutely, debt recovery should be made a duty, i advocate anything over 90 days old should be pursued but I am OK with two levy payments and i also agree the loss of voting rights be removed if debt is pursued.
This is a much better state of affairs than the current situation where there is no obligation to chase debt and the unfinanacial have no say.
If the 1/3 of the owners who come to my AGMs make a decision that ses the whole SP sued then the 1/3 of unfinanacial, who had not say, go down with the financial. Mrstrata is right, if you owe taxes you get to vote, if you owe the State Government you get to vote, if you owe the local Council you get to vote. Removing voting entitlement is not a "stick" that has any effect in my SP, or many others.
Mediation process
The system of mediation needs a shake up as well.
I think mediation should be free like it is with Community Justice Centres. There are two parties in a dispute - why only make one side pay?
Restrictions on what type of matters can be mediated should be removed.
Mediation should involve the parties directly related to the dispute. Why should you have to apply against the OC when you have a problem with the agent, for example?
Lawyers should be banned from attending mediation sessions.
Compulsory mediation is a myth and misnoma. The only thing compulsory about it is that somebody has to apply. The other side can refuse to participate without any reason. Some agents are well known for declining every mediation request. Mediation should be made truely compulsory or some other changes made. The side saying no could be required to pay for the next step (eg the Tribunal application fee) or have to apply to CTTT themselves to settle the dispute within say 30 days of declining mediation.
get rid of EC for large SP
At our large SP, millions of dollars have been misappropriated by the EC members. Every and each executive committee elected always to track retrospective blame on its predecessors rather than take responsibility and look after the interest of the owners corporation. Duties and functions not performed properly. Officer Bearers abuse the powers and delegation and procedures of determination never seem properly followed and lack of professionalism-each member seems running the committee as its own wish and will.
If large scheme can get rid of the EC will be a huge benefit for the owners who surfer misappropriation, mismanagement, corruptions, defamation, discrimination and revenge in the large SP.
Owners or owners’ representatives can attend monthly Owners meeting. Owners can submit or talk about their concerns to Strata manager and building manager. Then the strata manager or building manager should give the answers to the owners within two weeks and fix the common problems within two months. If the problems have been remaining for more than two months, owners should lodge a formal complaint to the CTTT.
If the Strata manager or Building manager didn’t perform their job well, they can be terminated at a general meeting or an owner lodge a compulsory managing agent application to CTTT. If there is more than 10% owners support the application, the compulsory managing agent application should be automatically handed down by an adjudicator within two months.
Then I think, it can be significantly improve the management of the large SP and owners can be less angry, unhappiness, helpless and blame government and strata managing agent and building management.
We help government can open heart to listen public opinions and get rid of the EC for large SP in the new Act.
Procedure for strata disputes - CTTT
On finding that the owners corporation has failed to comply with requirements of the Act, in carrying a resolution at a general or executive meeting, an individual owner/s has a right to apply for mediation and subsequently for an order to the CTTT, with necessary evidence. Attendance at mediation is not compulsory. However, within the grey areas of our strata legislation, acting cautiously, the Adjudicators and even Members of the Board tend to give weight and support to the manipulative “majority” in a meeting and the strata managing agent (SMA) involved, who have clearly disregarded the law. In such instances, an application from a single owner is dismissed. The CTTT Act 2001, No. 82, Section 28 (2) states, with ambiguity, that the Tribunal “is not bound by the rules of evidence....”, which is not reassuring.
Q4 Handling of disputes
My experience with the tribunal in terms of processing was not negative however in terms of enforcement of outcomes, things could be improved. The current system is too passive.
As noted under question 3, perhaps the Code of Conduct would also prove helpful here and could be used to hold those in office accountable to specific criteria and allow for specific issues to be addressed, therefore guiding mediation sessions better.
Q4
1. Based on my experience of over 40 years in a strata scheme the current system to resolve disputes is toothless compared to those when there was a separate body to administer all strata and ? community issues.
3. The result of dispute hearings whether mediation or whatever seem to have no basis for decisons. Decisions seem to be made on a whim and the opinion of the person from the CTTT not necessarly based on previous disputes as would occur if disputes go to court.
4. I feel there needs to be a total new department to only handle strata/community titles issues.
5. All states in Australia should be able to have the same legislation which applies to both strata/community titles.
6. Disputing parties should have to undertake training prior to hearings. The arbitrators appointed by CTTT should have a legal background to ensure consistency.
Q4
Disputes will always need a separate, experienced party to judge and determine the outcome. The department providing strata education would be effective as dispute mediation will drive the education process. There should be no delays in resolving disputes and the charge will be clear: ‘has a by-law been broken or not?'
At the moment, the process for correcting non-compliance of by-laws is unworkable and onerous, and the offenders know they can get away with anything. Most neighbours do not want to get involved in aggression, so do not speak up. In some areas, the problems are enormous.
C.T.T.T.
C.T.T.T. can turn the simplest issues into a federal case.
Owners owing Strata levies
We currently have an owner who has more than $20K in arrears. He then pays some and then gets in a similar state. There has to be an easier way for us to get the money without starting the process all over again. This is not fair and making other owners pay an extra levy when if paid in the first place would not be neccessary. The law should be about helping people to get this paid however when is enough enough and when will the people who do the right thing be rewarded by getting this owner to pay his back log!!!
Disputes
Absolutely, decisions handed down by CTTT or Fair Trading to resolve disputes should be monitored carefully to make sure that Strata Managers, Caretakers and EC or Owners/residents are complying to orders.
Q4.
Q4.
a. There should be ready access to advice as to how a strata can proceed on an issue, available through the Office of Fair Trading.
b. Ready access to a conciliation process for disputes between individual owners and between an owner or owners and the strata executive committee should be available. This process should be available when needed, at minimal cost and be empowered to move the issue past the conciliation stage if an agreement can not be reached. The idea here is that the dispute/issue can be moved to a third party hearing easliy and quickly so that what are really small issues do not grow into big ones.
c. Executive Committees need guidance/assistance when they are placed in a position of dispute with a supplier, especially a builder or developer. I know of several situations where hundreds of thousands of dollars have been spent by Owners’ Corporations in attempts to have defaults rectified.
Q4. Are there any changes needed to the way disputes in strata
In my experience a complaint to CTTT by an owner incites unpleasantness in the Association. It is lengthy, confusing , divisive and most people choose NOT to do this, they would rather put up with it, even if they think something isn't correct rather than destroy relationships built with their neighbours and in some cases are forced to move from their homes in the aftermath. Some are worried about the effect it will have on their property values, its not a good look for potential buyers. There must be a review of the powers and adequacy of the CTTT.
If a By-laws is ambiguous the EC are then able to provide their own individual interpretation. A ruling by the CTTT seems to uphold this view 'another EC may have made another decision'. This means one week, under one group of people an action may be considered a 'breach' then a new EC is elected who decide that action is now 'not a breach'. How can this be considered fair and reasonable? By-laws shouldn't be open to individual interpretation. Rules regarding what can and can't be built on Community Title should be clear to purchasers, not be able to be changed after the person has purchased or if an EC changes. It isn't fair. From the same adjudicator; 'It seems the applicant wants the decision of the EC reviewed on its merits...I am not satisfied I have the power'. Who has then?
I agree with Jimmy T “The CTTT adjudication system has lost the trust of people in strata who can’t understand why simple issues about whether or not a by-law has been broken can become the basis for confusion, discussion, debate and legalistic wrangling.” Many times the issue is side stepped and not sensibly assessed such as ignoring the fact a by-law has been breached. Why are the by-laws written if they are not upheld by adjudicators and tribunals?
Also, by-laws shouldn't be allowed to be bypassed merely by manipulating the wording. Example; the word 'gazebo' is used in a management statement with no additional description in regards to size etc. Is this, in common sense terms the same as an 'attached 42sq m building,'? A by-law prescribes that only 'recreational' buildings, gazebo's etc can be built outside the prescribed building envelope, so an attached building previously presented as a 'home office' is given a name change and becomes a 'garden pavilion'.
I was told by the original developer and council that due to roof lines, view sharing, closeness of dwellings etc, any such building must be detached, well away from the dwelling, and must be small, under 20 sq m. This is another example of by-laws not being clear enough and as a consequence entities such as the CTTT believe they have no option than ruling purely on the wording of a by-law. The process is too long, up to 6mths or longer.
My suggestion is that the CTTT be given the flexibility to determine whether mediation is really required or can the issue go directly to an adjudicator. This would be in situations that require a legal or technical decision or in cases which are urgent. The mediation process is often not effective as the issue has not been able to be resolved for a specific reason, such as conflicting by-law interpretation. There should be an opportunity for people to give verbal submissions directly to an adjudicator. The elderly, illiterate, dyslexic or other people that aren't good at reading or writing may have difficulty putting their point of view across, they are therefore at a disadvantage. Decisions are often very technical and based on pedantic interpretations of the wording of by-laws. e.g. Even if a by-law is noted by an adjudicator as clearly in breach but hasn't been listed in the application then it is disregarded as part of the determination. There appears to be no common sense application of the Law at the CTTT
There should be a simple way of appealing to a full tribunal without costs being incurred or need for expensive lawyers.
Mediation
If Strata Managers are not providing satisfactory service currently there is the www.fairtrading.nsw.gov.au to mediate disputes. The mediation is just that, it’s a platform to raise issues & have a talkfest to find solutions /workaround to issues. My understanding is resolutions aren’t even binding. In effect it’s a small inconvenience for the Strata Managers for something that could be a serious misbehavior.