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Strata – COVID Stay at Home Orders

Covid stay-at-home orders and what is “at home” for strata lot owners/occupier?

All of you should (or are deemed) to know, there are various health orders currently in-force due to Covid. We often hear the requirements to “stay at home”. But it is a timely reminder to consider again what is a home for strata lot owners or occupiers?

As most strata owners should know, they own the “airspace” insider their unit/apartment but also co-own the entire strata building and the common properties with the other owners as per their unit entitlements. So, is the nice looking patio downstairs a part of your home? Normally, yes. But please, use some common sense, not for covid / isolation purposes! The Parliamentary intention is that people should isolate at home, as much as they can away from other people etc. Good luck!

Matthews Folbigg has experienced strata lawyers that can assist lot owners and strata managers with advice. if you would like to speak with a strata lawyer, please call us on 9635 7966

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Building defects in strata buildings and the legislative safeguards

Building Defects and Part 11 Protections for Strata Owners

We have previously written an article about the new duty of care protection in favour of property and strata owners, which is available under the new Design and Building Practitioners Act 2020 NSW (DBPA). Basically, it establishes a new duty of care against various building practitioners, retrospectively, covering losses arising from the last 10 years or so. However, that is not the only remedy available (of course). The issue of building defects have been around for a very long time and the legislation have been changing constantly, especially for strata buildings.

For example, the 2% developer bond and inspection scheme has been in operation since 1 January 2018 under Part 11 of the Strata Management Scheme Act 2015 (NSW). In fact, it was written into the 2015 Act when it first commenced. On 1 July 2020, there was another round of amendments to the scheme.
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Combustible cladding problems in strata apartments

Most of you would have heard about the 2017 Grenfell Tower fire in London, the 2014 Lacrosse building fire in Melbourne and/or the 2012 West Terrace fire in Bankstown NSW. The result of those fires is the renewed focus in fire safety laws for strata buildings, especially those with external combustible cladding.

In New South Wales, those laws involve:

  1. Building Products (Safety) Act 2017 (NSW);
  2. Environmental Planning and Assessment Regulation 2000 – which was amended under the Environmental Planning and Assessment Amendment (Identification of Buildings with External Combustible Cladding) Regulation 2018; and
  3. State Environmental Planning Policy Amendment (Exempt Development—Cladding and Decorative Work) 2018 (NSW).

In brief, the legislative framework seeks to (i) ban certain products from being installed on buildings (Type A or Type B construction) regardless of whether they may have a current CodeMark Certification, (ii) override various requirements of the BCA where there is an inconsistency with respect to the product bans, (iii) identify and collect information about buildings to which external combustible cladding has been applied, (iv) maintain a statutory register of the affected buildings with certain information to be provided to Fire and Rescue NSW and (v) to restrict or prohibit cladding and decorative work from being carried out as an exempt development.
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Removal of Vehicles Illegally Parked on Strata Land

Removal of abandoned/uncollected goods and vehicles that are illegally parked on strata land

One of the problems with strata is that there is sometimes just “stuff” lying around in all the wrong places. For example, abandoned goods scattered across the scheme (especially when someone moved out) or even cars and trucks just parked everywhere out of convenience or they have been abandoned.

On and from 1 July 2020, abandoned and uncollected goods are no longer governed by strata legislation. The old section 125 of the Strata Management Scheme Act 2015 (NSW) and regulation 34 of the Strata Schemes Management Regulation 2016 (NSW) are now repealed with the issues now dealt with under the Uncollected Goods Act 1995 (NSW). NSW Fair Trading has some great information on this topic which can be accessed by clicking here. So, you would need to stop following the old processes about the sticking of disposal notices on items/cars and remove them when obstructing access (like driveways). And accordingly, most parking by-laws should be updated as they would be referring to the old car towing provisions, albeit the wheel clamping provisions under the Local Government Act 1993 (NSW) still remain.
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Common Problems with Common Property Rights By-Laws

Common problems with common property rights by-laws

Time and time again, we see some poorly drafted or “simple” by-laws. Sorry, we have to vent! Here is an example (below) – and no, it is not drafted by us:

  1. Special Privilege for Commercial Lot 1
  2. The owner of Commercial Lot 1 has the special privilege to carry out works on the lot without first obtaining the consent of the owners corporation to the alteration of the common property in connection with those works.
  3. The owner must give the corporation at least 7 days written notice of the intention to carry out works under this by law. The notice should give sufficient details of the works to be carried out to allow the owners to determine if the intended works are in compliance with this by law.
  4. Any works carried out under this by-law involving disruption to the access to the car space Lots to be carried out between 8:30 am-5:30 pm Monday-Friday only.
  5. Continue reading…

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Short Term Letting Restrictions

Short-term letting restrictions and how they impact you

As most of you would know, short term lettings in strata units and houses were causing a big fuss some years ago. Then, there were the debates (including parliamentary debates) as to whether these should be permitted, prohibited or permitted with conditions. Even now, we hear about the massive out of control Airbnb parties from time to time. Then again, there are the many success stories behind these passive income gems. So, where are we at now?

For NSW, the statutory framework governing short term letting has three main parts being: (i) the strata legislation, (ii) the mandatory code of conduct, and (iii) the planning laws.

Strata legislation for units and apartments

On and from 10 April 2020, the Strata Management Scheme Act 2015 was amended to include a new section 137A. In essence, the owners corporations can make a by-law by way of a special resolution in general meeting to ban short term rental accommodation where the person giving the rental arrangement does not occupy the lot as their principal place of residence. In short, the person granting the short term rental needs to live in the lot. If you (or your strata scheme) want to allow short term rentals, we suggest you to arrange a by-law to be made to expressly allow them, subject of course to conditions.
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Property Law Tested by Developer

Jobema Developments Pty Limited is the first developer to test the new property law introduced by the Conveyancing Amendment (Sunset Clauses) Act 2015, which requires vendors to either obtain the consent of purchasers before they can rescind an off-the-plan contract in reliance on a sunset clause in the contract, or to obtain the permission of the Supreme Court to do so.

Facts:

In this case, Jobema, the defendant, purchased a development site from Xycom, who had exchanged a number of off-the-plan contracts with a sunset date for the registration of the strata plan of 31 December 2015. As part of the purchase, Jobema would assume Xycom’s obligations under the exchanged off-the-plan contracts, one of which was with Mr Wu.

Xycom had carried out minimal work on the project before it had been sold. While Jobema commenced work immediately, the project was not completed by the sunset date. As required by the new legislation, notice of the proposed rescission was served on Mr Wu and the notice cited several reasons for the delay and the proposed rescission. Mr Wu did not consent to the rescission and Jobema subsequently applied for leave in the Supreme Court under the Conveyancing Act.
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Changes to Property Laws – Strata

IMPORTANT CHANGES TO PROPERTY TRANSACTIONS
The Conveyancing (Legislation) Amendment Act 2018 introduces changes that will provide better protection for purchasers buying property off the plan and more flexibility to those using electronic land contracts and deeds.

Off the plan Contracts:
An off the plan contract is used to sell a property such as a strata unit without its own separate title, given the property does not exist at the time contracts are exchanged.

Off the plan contracts can be beneficial to both property developers and purchasers. For property developers, finance is generally dependent on the percentage of lots that have been pre-sold.

For purchasers, these off the plan contracts are a popular way to enter the property market. This is because the construction and settlement periods can take years, providing extra time for buyers to save funds required for settlement.

However, due to the very nature of the transactions, off the plan purchasers are particularly vulnerable to the actions of developers. The new laws aim to address this vulnerability.
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