Is strata manager obliged to issue by-law breach notices?

RayMan wrote:

In our situation there is a serious breach of bylaws, where common property has been appropriated, approx 15 – 20 sqm, astro turf has been laid on it and a hedge installed to isolate the area. What complicates the matter is the lot just went up for sale and these breaches are not addressed and may be inherited by the new owners. The problem with the committee is that the owners who put the plants in have control of the committee.

The best way to get this resolved before new owners come in is to take action for mediation at Fair Trading.  This will show up in any strata searches so purchasers will know that the annexing of common property is in dispute.  When the current owners have gone, they will no longer be able to control the committee or the strata manager (who should also be looked at).

So, if I were in your shoes, I’d raise the issue via an application under Section 232.2 which basically asks the Tribunal to issue an order to the owners corp or committee to fulfill their responsibilities under the Act.  You can find out how to do that, with links to the appropriate forms, on this web page.

The grounds could be:

a) Failure to enforce a by-law.  You’d have to specify the by-laws – but they may be a variation of By-law 3(b)  and By-law 4 in the Model By-laws [below] adopted by most schemes.  Check and see what your by-laws say.
b) Failure to demand a Special Resolution By-law under Section 108 of the Act.
c) Failure to demand that the lot owners abide by the DA under which the scheme was approved by your local council, in which that area was designated as a common property.

If the property is, as you say, up for sale then it’s important that you file your complaint with Fair Trading as soon as possible.  The most important thing at this stage is that it is on the record – and it will be as Fair Trading will notify the strata manager and the committee of the application.

However, it is also an essential first step in taking the matter further, should you wish to do so.  And, by the way, it is free.  Take pictures of the annexed area to support your case and look out for false advertising that implies that the annexed area is part of the lot.

You should also get as many other owners as possible to support and assist you, so that you don’t seem to be conducting a personal vendetta.

The application for mediation can be filed online here. You would select the owners corporation as respondent and could name the strata manager as co-respondent.

If it was me, I would also take a separate complaint against the strata manager for obstructing the proper management of the building by trying to deter owners from exercising their legal rights and responsibilities (and allowing the potential for future strif in the future when the new owners discover they have been duped).

At worst, the strata manager will probably only get a stern phone call from Fair Trading but, again, at least it will be on the record for when their contract comes up for review.  You can start that process here, under the real estate section (not strata).

3   Damage to lawns and plants on common property

An owner or occupier of a lot must not, except with the prior written approval of the owners corporation—

(a)  damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or

(b)  use for his or her own purposes as a garden any portion of the common property.

An owner or occupier of a lot must not obstruct lawful use of common property by any person except on a temporary and non-recurring basis.