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Navigating loss of rent claims and repair obligations in strata schemes

A recent Supreme Court NSW decision (The Owners – Strata Plan No 2661 v Selkirk [2024] NSWSC 760) provides guidance as to the obligations of strata schemes and strata lot owners in cases where water penetration damages a strata unit and loss of rent is claimed by the affected lot owner.

Facts

The case involved Ms Selkirk, an owner of a strata unit in a Darling Point building, who had significant water leakages from her bathroom into the unit below. Whilst the owners corporation acknowledged its duty under section 106 of the Strata Schemes Management Act 2015 (NSW) to repair common property, disputes arose as to the extent of the necessary repairs and compensation payable for Ms Selkirk’s rental loss. At one stage, rent claimed was $1,750 per week at an amount in excess of $117,000.00. [...]  READ MORE →

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Unjust strata by-laws and unreasonable strata levies

There is a recent Supreme Court decision concerning unjust clauses in a strata exclusive use rights by-law and also concerning unreasonable strata levies.

In case of Perpetual Corporate Trust Ltd v Owners Corporation SP6534; El Khouri v Owners Corporation SP6534 [2024] NSWSC 173, the Court deals with a matter involving a penthouse apartment (Lot 11) in Point Piper Sydney situated on the fifth and sixth floors of the strata building. The building comprises of 11 lots in total. The penthouse has extensive ocean views of the Sydney harbour particularly observed from the balconies on the two floors and the rooftop area. The balconies and the rooftop have been accepted to be common property. There were also various valuation evidence that the exclusive use rights alone amounted to $2,250,000 in value. [...]  READ MORE →

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How duty of care works in favour of property and strata owners

This article includes an example of the new statutory duty of care protection that property and strata owners now enjoy. By the reasons of this decision, there is a real and potential argument that “building work” to which the statutory duty of care applies (under section 36 and 37 of the DBPA) is not strictly restricted to class 2 or part 2 buildings but can also apply to the broader meaning of “building” under the EPAA.

An example of how the new duty of care protection works in favour of property and strata owners in the Courts

What are some examples of the new statutory duty of care protection that property and strata owners now enjoy, I hear you ask? Well, you are in luck. Below is one example that we have come across recently: [...]  READ MORE →

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Strata Defects and Project Intervene NSW

Strata defects and Project Intervene NSW (From 2 November 2022 to 30 June 2023)

Surprise! There are generally lots of defects in strata buildings (39% having serious defects from 2014). These defects range from waterproofing defects, fire safety defects, structural defects and the other so-call “minor” defects (which when combined, can be very expensive). This is according to the new report from the still current NSW Building Commissioner, David Chandler.

Given the high-profile and costly problems (including those from overseas), it is not surprising that the NSW Government is attempting to play catch-up and reform the industry. [...]  READ MORE →

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Building Defects Update 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 (the DBPA commenced on 11 June 2020). Just an update, there are some recent case law on this. For example:

1. In the case of The Owners – Strata Plan No 84674 v Pafburn – [2022] NSWSC 659, the Owners Corporation commenced proceedings under the DBPA on 1 December 2020 against the builder and developer of the building. The occupation certificate issued on 6 December 2010. Evidently, the proceedings were commenced under the DBPA because of the “two and six years” limitation of periods under the Home Building Act with non-major and major defects which is a lot more restrictive. [...]  READ MORE →

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COVID-19 Laws on Strata and Community Schemes

Extension of COVID-19 Laws on Strata and Community Schemes

Due to ongoing issues with COVID-19 (although we suspect many of the stakeholders are pressing hard for these behind the scene to be frank), the NSW Government has extended the operation of the laws to allow general and strata committee meetings to be held remotely.

The previous provisions on these were set to be repealed on 31 May 2022. The laws will now continue to apply until 30 September 2022.

The extension of these laws under the strata and community regulations means that voting at a meeting held remotely can still be undertaken electronically, for example, teleconferencing, video conferencing, email, or other electronic means. This would by-pass the “normal” need for the schemes to have already resolved to opt into these electronic meetings. [...]  READ MORE →

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New Health Orders and police powers for Apartment Buildings

COVID-19 Laws – New Health Orders and police powers for Apartment Buildings

On 6 September 2021, the Minister for Health and Medical Research introduced a new COVID-19 Health Order. The revised Order includes additional provisions to facilitate government lockdowns of specific apartments.
In short, the Order offers the Minister the power to declare a building as a “high COVID-19 risk premises”. This declaration can be made if at least one dwelling in the building is considered a COVID-19 risk premises and there is a risk of transmission of COVID-19 between the residents. The declarations will be made on the NSW Health website.
Unless the Minister revokes the declaration, a building will remain a high COVID-19 risk premises for 14 days. During this time residents must not leave their residence unless they are instructed to do so by an authorised medical practitioner or the police, or in the case of an emergency. [...]  READ MORE →

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Short-term letting restrictions and how they impact you

Short-term letting restrictions – PART 2

Short-term letting restrictions and how they impact you

We have previously written an article about the short term letting issues affecting property and strata participants back on 6 March 2021 (You can read it here). In short, it dealt with Part 1 of the legislative framework to regulate the short term letting situation. It involves the NSW Fair Trading’s mandatory code of conduct (which regulates the conduct of short term letting, presuming it is permissible) and the Strata Legislation (which allows the strata schemes to ban short term letting in lots that are not a principal place of residence of the owner or occupier). [...]  READ MORE →

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Strata Laws on Pets and Animals

New strata laws on pets and animals

Attention pet lovers (and the not-so-much pet lovers)! There may well be more furry additions coming your way to your nearest strata building soon.
From 25 August 2021, the amendment to the Strata Schemes Management Act 2015 (NSW) prevents a blanket ban on pets in a strata scheme. Section 137B of the Act effectively nullifies a by-law to the extent that bans or prohibits the keeping of animals in a strata scheme unless it “unreasonably interferes with another occupant’s use and enjoyment of the occupant’s lot or the common property.” [...]  READ MORE →

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Debt recovery and strata lot owner goes missing?

Debt recovery and strata lot owner goes missing?

A strata lot owner goes missing when council rates and strata levies were owed. What happens, you might wonder?

 This is essentially what has happened in the case of Council of the City of Sydney v Baboon Pty Limited [2020] NSWSC 1480. Council rates were owed to Council (the plaintiff) of around $9,500 and strata levies were owed to the owners corporation of around $26,000 (second interested party). As you may know, both Council and the owners corporation have the power to “force sell” the strata unit to recoup their respective fees and costs, whether or not the owner can be found. In this case, the strata unit owner cannot be found and so, Council in this instance decided to proceed with the sale. The property was sold to (and purchased by) Baboon Pty Limited (third interested party) for $136,000 in November 2018. [...]  READ MORE →

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Strata Legal Advice Made Easy

Those of you that own a strata investment property or who live in a strata community will know that strata legal advice for the most simplest of matters like drafting by-laws or resolving disputes can be extraordinarily expensive. That has now changed.

Matthews Folbigg Lawyers, based at Parramatta has a strong Property and Strata Law practice area that offers cost effective and practical advice.

Our strata lawyers will either work with your Strata Manager or if Owners prefer, will work directly with Strata Committees. Our strata clients have direct access to their lawyer ensuring work always receives experienced and dedicated strata law attention. Matthews Folbigg Lawyers is committed to ensuring; [...]  READ MORE →

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Compulsory Strata Management

We are often asked about the NCAT Tribunal and what it can do for you. One of the things that NCAT can do is to make orders for compulsory appointment of a strata managing agent under section 237 of the Strata Management Scheme Act 2015 (NSW), who can, pursuant to the orders:

  1. exercise all the functions of an owners corporation, or
  2. exercise specified functions of an owners corporation, or
  3. exercise all the functions other than specified functions of an owners corporation.

Whilst this may seem extreme, it is a powerful strategic option for lot owners (or the dissenting minority) to challenge the decisions of the majority in a strata scheme, big or small, in particular where there are adverse/unfavourable resolutions made by the owners corporation or strata committee. [...]  READ MORE →