Podcast: When your fabulous view disappears

We’ve plundered the Flat Chat Forum for talking points this week, but first we discuss an issue that’s come to Sue from one of her Domain readers.

Did you know that if you buy an apartment off the plan and the finished unit varies from the contract design by more than 5%, you can ask for a discount or possibly even rescind the contract?

But how about if the plan for the whole scheme has changed considerably? For instance, if the building is much closer to other buildings than you were originally led to believe?

What if there isn’t as much green space as you were promised, or if the view that you were sold is about to be blocked by another building?

It seems that not only do you have no recourse, the developer doesn’t even need to tell you that they have lodged an amended plan with the council.

This week we pull that topic apart in the podcast and see what comes wriggling out from under those stones.

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LISTEN HERE

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Getting back to the Forum, we have a look at the whole question of what is and isn’t common property.

And we discuss the plight of an owner – or perhaps her neighbours – who’s been issued with a notice to comply because of her late-night chats in her backyard of a townhouse complex.

We also get into the area of strange noises from other apartments and wrap up various questions and answers raised about the whole business of fire safety inspections.

That’s all in this week’s Flat Chat Wrap.

TRANSCRIPT IN FULL

Jimmy  00:00

It’s forum week, on Flat Chat.

Sue  00:02

Oh, what’s that?

Jimmy  00:03

I’ve just invented it. It’s where we can talk about things that have come up on the forum.

Sue  00:10

Oh, yes? Have you had lots of things come up?

Jimmy  00:11

I get lots and lots of things come up. I get two or three things come up, but then lots of people respond; some of them making more sense than others, it has to be said.

Sue  00:13

And more sense than you?

Jimmy  00:25

Often this is the case. We’ve got a lot of material to get through. I am Jimmy Thomson, I wrote the Flat Chat column for the Australian Financial Review.

Sue  00:36

And I’m Sue Williams and I write about property for Domain.

Jimmy  00:39

And this is the Flat Chat Wrap.

[MUSIC]

Jimmy

Well, having announced ‘forum week,’ our first story isn’t about the forum, at all. One of the listeners to this podcast contacted you with a strange story… It’s strange, because I’m surprised it hasn’t ever come up before.

Sue  01:12

Yes, I’ve never encountered anything like this before, either. Basically, this person bought an apartment off-the-plan in the inner west and then subsequently, the developer changed the plans. She made the point that unfortunately, she’s bought the place, but she’s surprised, because it’s changed quite a lot.

Jimmy  01:32

Now, is this the apartment that’s changed?

Sue  01:34

No, it’s the area of the apartment complex. Her apartment was meant to look out onto greenery; a really lovely view. Now, it looks as if (from the amended plans), it’s now going to be looking out onto other buildings. The buildings are much closer together than they were originally, in the original plans. She made the point (quite rightly), that it’s interesting; when developers do change DA submissions…When they amend them, they obviously have to reapply to council and then the local council will let all the ratepayers within that area know about these these amended changes. Ratepayers are then able to have the opportunity to object, or to not do anything, but the people who have bought into the building, because they’re not ratepayers (unless they live nearby anyway), they’re not hearing about these changes, because the developer doesn’t have to let them know.

Jimmy  02:30

Wow! Do you think the developer should have to let them know?

Sue  02:34

Yes, absolutely, because this lady made the point that the only time you’re actually going to be told is; you can go onto the New South Wales Government portal, and say you want to be told of any changes to a DA, but you know, most people wouldn’t realise that. You just assume in good faith, that the developer is going to go along with the original plan, but it doesn’t seem that they’re under any obligation to let you know.

Jimmy  03:02

It’d be the simplest thing for the government to do; to bring in a regulation that says, if you’re making an application to council, you should also inform people who’ve put a deposit down. Under the current legislation, if the developer changes the apartment by more than 5%, you’re entitled to pull out of the deal.

Sue  03:26

That’s right, but I don’t know if that applies to the plans; you know, to the outdoor plan.

Jimmy  03:31

But it should.

Sue  03:32

Yes, it certainly should! If you want to pull out, because suddenly, you don’t have much of a view anymore, I wonder if it’s possible that you might lose your 10% deposit?

Jimmy  03:43

I remember there were a couple of cases; there was one building down in Chinatown in Sydney and in fact, there was another one, up on the north shore, in North Sydney… In both cases, the apartments were sold on the basis that you would have fabulous views; fabulous views over Darling Harbour, and in the other case, fabulous views down to Sydney Harbour. Then, the same developer came in and built another building, in front of the one they’d just sold, blocking the views that they’d sold.

Sue  04:17

That’s right and saying “this one has even better views!”

Jimmy  04:21

I know that residents of both blocks went to the Land and Environment Court to say “look, we were sold on the basis of this,” and I think the response in both cases was “well, when you got the apartments, the view was there and you don’t own the view.”

Sue  04:41

That’s kind of a principle in planning law, isn’t it really, that you can’t actually own a view? In some cases, you kind of expect other developers to build buildings in front of yours perhaps, if there’s vacant land, or there’s old houses there, that may be right for redevelopment, but you don’t expect the same developer to do another building in front of you.

Jimmy  05:04

I think they probably approached this from the wrong angle. If they’d said that the developers have acted fraudulently; that they knew they were going to build in that space, but they didn’t tell people they were going to build in that space, then they were misleading their customers.

Sue  05:22

Yes, but maybe the developer would say “oh, no, it’s only just occurred to us, to do that.” You know, it’s quite hard to prove, isn’t it?

Jimmy  05:28

But certainly (to get back to the original point that we’re talking about), if a developer, when they put a DA in to change anything in the vicinity;  if they had to tell prospective purchasers of their apartments (people who put down deposits), “by the way, we’re making a massive change to what we’ve sold you,” then people would be entitled to say “either I’m not buying it, or I’m not buying it at the price…”

Sue  05:55

Sure, yes. Give me a discount.

Jimmy  05:58

I remember years ago, we made a joke…. We did a list of real estate definitions and we said  ‘secondary views’ meant you could see the building that had the views. About a month later, we saw it in an ad; ‘This apartment has secondary views of the harbour.’

Sue  06:20

Oh, god, yes! These poor people in the building, looking at the building with views of the harbour… How awful must that be? It’s interesting; I went to Sirius the other day and looking at that; that’s got fantastic views over the harbour. As you know, it’s the former Housing Commission block, that’s been redeveloped and being sold off as private housing, and they’re now multi-million dollar apartments. It’s really interesting; the architects have made it so that when you’re one side of the building, you can actually look through (and if there are no curtains or blinds down), you can see all the way through, to the view of the harbour, which is great. People outside have a bit of a view, the whole way through, but when people move in it may well be that they put in blinds.

Jimmy  06:26

Enviously. You would assume.

Sue  07:12

It’s kind of fun at the moment, though. Get down there and have a look, while you can.

Jimmy  07:18

When we come back, we’re going to talk about something that is on the forum and that is, what is common property, and how can you have common property inside your apartment?

[MUSIC]

Jimmy

We’ve had somebody writing to the Flat Chat forum, basically saying that they’re in a building which is six years old, and they think it’s still under warranty. There is a building manager in the building and they’ve noticed (the person who wrote to us noticed), cracks in the ceiling and around the window. They’ve gone to their building manager and said “are these defects?” The building manager has said “oh, it’s only a defect if it’s more than two millimetres wide.”

Sue  08:08

Is that right?

Jimmy  08:09

I’ve never heard of that before, so that immediately got my alarm bells ringing and I said “look, this is common property, and they need to fix it. If your building is almost six years old, you’re running out of time to claim this.” Then I got into an exchange with this person and it made me realise, how many people who live in strata, don’t understand what common property is, or even what the owners corporation is. We’re basically toing and froing with this guy, yet at the end of every post, we’re saying “get professional legal advice, now.” Hopefully, we got the message across, but you know, he keeps coming back and saying “well, you know, it’s in the ceiling, and the corner at which is also in the wall and they say ‘well, that’s not common property.'”  He said “anyway, if it’s common property, the owners corporation have to fix it, so why would I worry”? You think, because you end up paying for it. If it’s the owners corporation paying for the repairs, rather than getting them done as defects, you’re paying a share of it, but you’re also paying a share of every other defect in the building, that should be getting fixed by the developer. This guy’s sounding quite frustrated, saying “how can you keep calling it common property, when it’s inside my apartment?”

Sue  09:41

It’s kind of a strange concept, I think, for a lot of people to get their head around, isn’t it, really?

Jimmy  09:45

Yes, especially since the definitions are a bit woolly. You know, like your ceiling is common property…

Sue  09:56

But your ceiling covers; your painting and stuff, is yours.

Jimmy  10:01

And, you know, an internal wall that’s a non-supporting wall, is not common property, but an internal wall that adjoins another apartment, or adjoins common property, is common property. Your front door is common property and the automatic closure mechanism on it, is also common property. Anything that’s attached to that door is common property, including the handle and the locks.

Sue  10:31

And a lot of people don’t quite understand that, because they often want to put in their own lock; an extra lock…

Jimmy  10:39

 Or a spy hole.

Sue  10:40

 Or a spy hole, but they actually really need permission, to be able to do that.

Jimmy  10:43

And they certainly need permission to paint the outside of the front door. Strictly speaking, they might need permission to paint the inside of the front door, if that affected the fire safety of the door, but I don’t think anybody would actually enforce that. It just made me realise, that so many people are labouring under total misconceptions about, what is common property and what isn’t. People say “I’ve bought this apartment, so obviously, the four walls and everything inside the four walls is mine,” and you say “well, look, the four walls to which you refer, are not yours.” A lot of people  say “the owners corporation have to pay for all this,” but you are the owners corporation…That comes as a shock, to a lot of people. My favourite one is “I hate this owners corporation; how do I resign?”  Well, you can’t. It’s like death and taxes. You’re inevitably going to be irretrievably bound into the owners corporation; all you can do is to get a little bit more active in there.

Sue  11:59

I always think of it as like; a friend of mine wanted to stand for Parliament in Australia, but she was actually originally British and so she had to relinquish her British passport, in order to stand for the Australian Parliament. When she spoke to the British Consulate, they said “well, technically, you can’t actually relinquish your passport, because (to paraphrase John Howard), we decide when you can.” You can say that you’ve denounced your citizenship, but in fact, if you don’t get into Parliament (and she never got into Parliament)… She ended up going back to Britain. She could just get her passport back again.

Jimmy  12:43

I remember when I lived in Kenya, a lot of expats there were renouncing their British citizenship, for tax reasons. I had a friend who worked in the British High Commission there and I said “how does that work?” He said “well, you’re never not British. If you were born in Britain, to British parents, you’re never not British. All we do is take your passport and put it in a filing cabinet…”

Sue  13:11

And then get it back out again.

Jimmy  13:12

And when you suddenly realise you’ve made a terrible mistake… This is something else they told me; I hadn’t realised… You know they talk about people signing the Official Secrets Act? You don’t have to sign the Official Secrets Act, to be bound by it.

Sue  13:30

It’s automatic?

Jimmy  13:31

If something is a secret in Britain, then every British person has to keep it secret. All these funny little quirky things, but no, you cannot resign. You can renounce your citizenship; or, you can denounce it as well, if you like…

Sue  13:55

For an owners corporation, you could say ‘this little corner of the building that I occupy, is now going to be a separate country,’ but it won’t do you much good.

Jimmy  14:05

No, you still have to pay your levies.

Sue  14:08

That’s right and the thing about common property; I remember in our building, we had a huge issue. We had a spare little area in our building, and we decided to turn that into the building manager’s office, because we didn’t have a building management office in the original plans. So, we turned that into a management office and then somebody who lived in the building said “well, I want to go and work in that office, as well,” and we said “you can’t, because that belongs to the building manager.” He said “no, it belongs to me, as a member of the owners corporation,” and he couldn’t get the idea that while it was common property, not everybody would have access to it.

Jimmy  14:53

Yes and that is an issue for a lot of people, but when you think about it, people say “I demand access to the electrical control room,” and you say “well, no, you cannot have that access, because it’s dangerous to you and you having access to it could be dangerous to us.” I just start from that principle, that not all common property is available to everyone and then think of it in government terms… You can’t just march into a police station and say “can I plug in my laptop and work here, because I’m a rate -payer, and I pay my taxes, therefore, I own this police station?”  I’m sure that people have tried, but it’s funny, just getting people’s heads around the concept of common property. Because we talk about it and live it all the time, we tend to think that everybody has a base-level-knowledge and not everybody does.

Sue  15:54

No and there are always these little quirks as well. I mean, if you dropped a hammer through an outside window, you would be responsible; you’d have to pay to get it fixed. You’d probably have to use a tradesperson that the owners corporation approved of and return it to the state it was before. You couldn’t suddenly (if it was a wooden-frame window), introduce an aluminium frame window, which would be more hard-wearing, but quite different. It is quite a complex topic, I think.

Jimmy  16:31

Something that has also been discussed a lot on the forum is, who pays for accidental damage? We’ve had quite a heated debate about a scenario, where somebody’s pipe leading to the dishwasher burst and flooded the common property ceiling and some property downstairs and they were saying, who’s responsible?  I was saying “well, the owner of the dishwashing machine is responsible, because they should have maintained the dishwasher.” Other people were saying it’s accidental, so unless you can prove that there’s negligence, then it’s just an accident and the strata insurance should cover the whole thing. It will be strata insurance, obviously, but it will also be home-and-contents insurance and the insurance companies between them will just go “you pay that and I’ll pay that and we’ll call it quits,” because that is a lot easier and less-expensive than sitting down with assessors and experts and engineers and lawyers, saying “right, this is how much you are liable, for that damage.” There’s a strata law and there’s regulations, and there’s bylaws and then there’s reality, which is over there somewhere, where people just need to get things done. When we come back, we’re going to have a chat about an interesting problem that’s come up for a Flat-Chatter and it’s all about talking in your backyard. That’s after this.

[MUSIC]

Sue  18:18

So, what’s the problem with talking in your backyard, Jimmy?

Jimmy  18:22

Well, the person who wrote to us said that they’d received a Notice to Comply, from their strata manager, from a neighbour who had presented the strata manager with a diary of all the times that our reader had been sitting out late at night in their backyard talking loudly, presumably to other people…

Sue  18:44

Or, on the phone.

Jimmy  18:45

Yes and she was kind of horrified, that suddenly, out of the blue, she would get this quite threatening notice, because a Notice to Comply is is a standard form, which says ‘You have breached this bylaw and if you don’t stop breaching the bylaw, we’re going to take you to NCAT and you will be fined.’ It has to legally have the bylaw that you’re supposed to have breached. It’s quite clear from the tone of the post to the forum, that the woman was shocked that this could even happen. She’s saying that the strata manager said that there was no meeting and the person who complained isn’t even on the committee, so how can they complain?

Sue  19:38

It’s been badly-handled, you have to say really, because somebody should have approached the woman when it started becoming annoying and said to her “look, you know, we can hear you clearly and it’s really disturbing,” or something like that. It should have been handled a bit better than just going straight to a breach notice.

Jimmy  19:57

I mean, we don’t know; we only get the edited highlights, of course, of what happened. I mean, perhaps this neighbour has said something; “can you keep the noise down at night?” Maybe, they’re just too timid to say anything? I mean, we do get people living in strata, who would rather go through official channels, because they’re too timid to confront the people themselves.

Sue  20:16

Sure. I’ve been talking to a woman at my gym, and she has a problem with people upstairs. There’s some noise that they make (a lot), and she thinks it’s maybe, panelling on the outside of their apartment, which flaps in the breeze. It’s really disturbing, but she’s too scared to talk to them about it, (she’s sure that they will be able to hear it as well), because she thinks they will take revenge and start wearing high heels, or big boots and start banging on the floor, which would be her ceiling.

Jimmy  20:52

That kind of thing does happen.

Sue  20:53

It does. There are some very unreasonable people in strata.

Jimmy  20:57

I was just talking to somebody in our building yesterday, who has a bicycle trainer like I have; you know, the back wheel was taken off and you attach the chain to this kind of…

Sue  21:08

Peloton.

Jimmy  21:09

It’s not a Peloton.

Sue  21:11

Yep, but those kinds of things.

Jimmy  21:13

And it doesn’t make any noise; if it’s anything like mine, it makes no noise. I make more noise, grunting and groaning on the bike, than the machine makes. New people have moved in, beneath him and they’ve said that this bicycle trainer is making a lot of noise, and you know, it’s really disturbing. He’s saying well, I can’t hear anything here, and he’s videoed himself on the bike, to show that it doesn’t make any noise. My amateur engineer hat on, I think what’s happening is that the silent vibration of the machine, is resonating through the floor and through the ceiling, so even though he can’t hear anything, the people downstairs are getting some sort of buzzing or rumbling, because of the resonance. What he needs to do is (it’s not just a case of putting down a rubber mat, which he’s done), actually putting down… I would say three different materials, to break up the resonance and they don’t have to be rubber. You know, it could be a…

Sue  22:23

Bit of carpet.

Jimmy  22:24

Yes and a piece of plywood and a rubber thing.  I think the way that vibrations travel, every time they hit a different material, it breaks down the resonance.

Sue  22:37

He should just get somebody to have a go on his bike, while he goes downstairs with his neighbours, to listen to the noise.

Jimmy  22:44

Yes, absolutely, but this comes back to what you’re saying about the woman. She’s sure that the people must be able to hear the flapping sound; well, maybe they don’t. Maybe, it’s only the way it connects with her part of the apartment block, that they’re totally oblivious to? I remember complaining about noise from the apartment above us and it turned out to actually be in the apartment one floor below and off to the side, but because of the way this building is built, noise is transmitted sideways and up and down, in ways that you’d never imagine. Just to assume that that noise is coming from the person directly above you, and that they will be able to hear it… I would just ask the question, where’s that noise coming from and can it be fixed?  I do recall years ago, somebody wrote to the column and said a new person had moved in next door to them and he was a nice young man; he seemed very friendly, but every morning, they would hear him groaning, followed by a thud and then there’d be another groan and a thud. It kind of sounded like he was having very noisy, interrupted sex and she didn’t know quite how to raise it with him; just to say “do you realise I can hear you?” She said “look, it happens every morning, it happens every night and at the weekend, it happens three times during the day,” and she said she’d never see any signs of any women or men coming and going from the apartment; it’s really weird! I had to think about it and I realised he was lifting weights.

Sue  24:35

Oh, of course!

Jimmy  24:38

‘Groan,’ then ‘bang,’ as he drops the weight and if I recall, I said “get him to put rubber pads down, so that at least when he drops the weights, it’s not ‘thudding’ quite so loudly.”

Sue  24:50

Or, he should ‘place’ the weights gently down.

Jimmy  24:52

If he’s doing it properly, he shouldn’t be dropping them; he should be lowering them ‘under stress,’ as our trainers keep telling us. And another aside from the forum…There’s been a few emails or posts recently; people talking about fire-safety tests and inspections and things like “how come I don’t have a little notice on my door, saying when the door was installed? A fire safety inspector said, ‘you’ve got to have one of these little plates,’ then when they put the plate in,  the date is the date of the plate, not the date of the door.” Somebody else was saying “how come we’ve had the same fire safety inspectors for years, and everything’s been fine and then we get a new fire safety inspector, and they suddenly find all these problems; are they just creating work for themselves?” This week, a fire safety inspector has written to the forum and answered all these questions.

Sue  24:52

Oh, how fantastic!

Jimmy  25:02

So, that’s on the forum. If you’re wondering why your fire-safety bills have suddenly gone up, the answer is on the Flat Chat forum. I think that is pretty much all we need to say for this week; forum week has started. We’ll try and do this at least once a month, because there’s a lot of really good stuff. It’s really interesting stuff, and they’re very real problems.

Sue  26:20

And if one person is having that problem, we know that there’s bound to be thousands of people having that issue, too.

Jimmy  26:26

Absolutely. Thanks, Sue!

Sue  26:29

 Pleasure, Jimmy.

Jimmy  26:29

Thank you all for listening and we’ll talk to you again soon.

Sue  26:33

Bye.

Jimmy  26:35

Thanks for listening to the Flat Chat Wrap podcast. You’ll find links to the stories and other references on our website flatchat.com.au And if you haven’t already done so, you can subscribe to this podcast completely free on Apple podcasts, Google podcasts, Spotify, Stitcher, or your favourite pod catcher. Just search for Flat Chat Wrap with a W, click on subscribe, and you’ll get this podcast every week without even trying. Thanks again. Talk to you again next week.