Updated Rules for Strata and Residential Property Managers

Updated rules for strata managing agents and real estate agents including assistant agents commenced on 1 September 2022.

The laws incorporated feedback from the public consultation in June and July this year on the Property and Stock Agents Regulation 2022.

The new Regulation will keep existing rules plus provide further consumer protection and a reduced administrative load for agents.

There is also a new additional rule that applies to strata managing agents and their assistant agents.

NSW Fair Trading is giving agents a six-month transition period to adjust to the changes from 1 September 2022 to 1 March 2023

What are the New Rules?

Here we explain some changes for strata and residential property managers under the Regulation:

Strata Managing Agents

• Strata managing agents are now required to cooperate when transferring functions to a strata scheme or community land scheme
• This applies in situations where the agent’s contract has ended, and the scheme has decided to self-manage.
• Clarifying the duties of assistant agents performing business agent or on-site residential property manager functions

Residential Property Managers

• Changing the disclosure of material facts requirements –when dealing with residential tenancy agreements, agents only need to disclose the material facts outlined in the Residential Tenancies Regulation 2019
• Clarifying the duties of assistant agents performing business agent or on-site residential property manager functions

For more information about the changes and what this means for you, visit NSW Fair Trading Property and Stock here or call Fair Trading on 13 32 20.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

The Australian Building Codes Board (ABCB) has announced the following in relation to the recent launch of the National Construction Code (NCC) 2022:

• As of 1 May 2023, NCC 2022 will be adopted with a transition period until 1 October 2023
• The transition period is for the modern homes provisions for energy efficiency, condensation mitigation and liveable (accessible) housing
• While the transition dates from 1 May to 1 October 2023 are in place NCC 2019 will remain in force
• Following 1 October 2023, NCC 2022 is to be adopted

How Different is NCC 2022?

• Consistency improvements have been implemented across all volumes with a new structure and number convention
• It is more web accessible with a significantly improved user experience and reorganised code’s
• As part of the transition old clause numbers will be listed to the right of documents
• You will be able to save a PDF version directly to your device or purchase a printed copy of NCC 2022
• You will no longer need to sign in to NCC Online but you will need to register to ensure you stay up to date with notifications

For more information the National Building Code 2022 is available here NCC 2022

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

A recent NSW Supreme Court ruling invalidated a by-law that required several owners corporations in a prominent strata complex in Sydney to all use the same strata manager.

The Finger Wharf at Woolloomooloo Bay is a well-known Sydney landmark. It was redeveloped about twenty-five years ago and remains a prominent Sydney landmark where many people now live, and businesses thrive.

The Finger Wharf structures, including the associated marina, are subdivided into seven strata schemes and a stratum lot. The Finger Wharf is governed by a management statement (SMS).

Up until recently, the SMS required all owners corporations to appoint the same strata managing agent as the Building Management Committee’s (BMC) agent. There was a corresponding by-law for each strata scheme.

However, at a general meeting in 2022 three of the owners corporations voted to appoint a new strata managing agent for their buildings, challenging the SMS that had existed for the last two decades without issue.

The dispute among the residents and occupants of the Finger Wharf about its management ended up in the NSW Supreme Court.

The Supreme Court ruled that the SMS provision and by-law that required all of the strata schemes to use the same strata manager as the BMC was void for uncertainty and invalid.

The Court concluded that the SMS provision and by-law were void because it was not clear what functions of each owners corporation were required to be delegated to the same strata manager.

The full case details can be found here:

Walker Corporation Pty Ltd v The Owners – Strata Plan No 61618 [2022] NSWSC 1246

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Tenants, Building Defects, NCAT and Rent Relief

In a recent case, a property manager failed to inform a landlord of defects in the common property of a strata building and take any steps to investigate issues that a tenant had complained about.

The tenant applied to NCAT for a rent reduction as the landlord had breached their obligation to keep the rented premises in a reasonable state of repair as water leaked into the premises. The tenant was successful.

Who Could be Liable?

If a tenant claims rent relief from NCAT due to defects in a strata building, it’s important to note that NCAT could deem that it is the responsibility of the:

• Landlord who could lose rent (or worse) if they do nothing;
• Property manager if they fail to fix defects in the premises that they are authorised to repair following a tenant’s complaint in a timely manner;
• Property manager if they have not advised the landlord of defects (where they are not authorised organise repairs) following a tenant’s complaint;
• Owners corporation who could also be held liable for a landlord’s loss of rent.

A Timely Reminder for Managing Agents!

Ensure your professional indemnity insurance is current;

• Ensure your professional indemnity insurance is current
• Obtain landlord consent on a minimum amount for repair works which can be dealt with without the landlord’s approval;
• Allocate sufficient resources to attend to repair requests in a timely manner to avoid issues which could lead to court proceedings;
• Request that any common property defects are promptly repaired by the owners corporation;
• Ensure that the relevant strata by-laws for the apartment block are up to date to minimise your risk

Here we share some cases…

• https://www.caselaw.nsw.gov.au/decision/18261da0208ae3ceaf03173b
• http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2019/9.html

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

The perennial problem of owners who carry out unauthorised renovations works to common property continues to rear its head.

Here we look at the different strategies for dealing with unauthorised renovations works and explore the problems that arise when an owners corporation ignores the problem for too long.

What are the Different Ways to Deal with Unauthorised Renovations?

• The Aggressive Approach
• A Stern Approach
• Someone Else’s Problem Approach
• A Collaborative Approach
• The Ostrich Approach

In this article we look at the different approaches and lessons learned Unauthorised Renovations and how to deal with them!

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

What do you need to consider in your EV Strata By-law?

EV by-law’s prepared by our team permits all owners to install electric vehicle chargers in their car spaces or garages and connect those chargers by cabling leading to the switchboard.

However, there are a number of matters an owners corporation needs to consider when adopting the by-law and permitting owners to install electric vehicle chargers.

Seven EV By-law Considerations

1. Is there sufficient room on the switchboard for additional circuit breakers to be installed for each electric vehicle charger installed by an owner?
2. Is the existing electrical infrastructure on common property sufficient to handle the additional loads generated by electrical vehicle chargers when they charge EVs? If not, who will be liable to pay for the upgrade of that infrastructure?
3. Is it possible for electric vehicle chargers to be separately metered and charged to the owner’s account instead of the owners corporation paying for the electricity that is used by the EV chargers?
4. Do the EV chargers and their use create any risks to the health and safety of other residents?
5. Are there sufficient cable trays in place in the garage or other areas to accommodate the cabling that will need to be run between electric vehicle chargers in lot owners’ garages and the switchboard.
6. Will the electric vehicle chargers be compatible with any load management system in place and the electrical infrastructure that exists in the building?
7. Is it possible for limitations to be placed on the loads drawn by electric vehicle chargers, for example, to limit electric vehicle chargers to single phase chargers drawing no more than 10amps power?

JS Mueller & Co Lawyers EV by-laws deal with some of these considerations and often is tailored to deal with most of them.

CLICK HERE FOR ELECTRIC VEHICLE (EV) BY-LAWS

As you’re aware, recent changes to strata laws mean that all NSW strata schemes must, for the first time, complete online reporting.

The new strata portal will go live 1 July 2022 allowing strata committee members and strata managers responsible for reporting to register on the portal.

Communication Toolkit

This means that your networks will need to be advised of the reporting requirements. To assist with these communications NSW Fair Trading has developed a ‘Communication Toolkit’.

This ‘Communication Toolkit’ includes suggested wording for:

• Newsletters
• Websites
• Emails
• Social Media
• FAQs

To access the ‘Communication Toolkit’ please click here.

CLICK HERE FOR THE ‘COMMUNICATION TOOLKIT’

Further Information

• Visit: NSW Fair Trading Website
• Email: NSW Fair Trading
• Read Article: JS Mueller & Co Lawyers
• View: Strata Schemes Management Act 2015

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Strata NSW Covid-19 Laws Extended

To help strata and community associations to continue to manage their responsibilities of COVID-19 the NSW Government has extended the timeline for these laws to remain in place.

Laws were previously added to the Strata Schemes Management Regulation 2016 and the Community Land Management Regulation 2021 in response to the NSW COVID-19 outbreak.

These laws included allowing voting at remote meetings to be held electronically by tele or video conferencing, email or other electronic means. It is important to note that these laws will still apply even if a motion has not been passed.

New COVID-19 Strata Law Deadlines

Initially these temporary laws were to end on 31 May 2022 however they will now remain in place until 30 September 2022.

For further information visit: Strata Schemes Management Amendment (COVID-19) Regulation 2022 and the Community Land Management Amendment (COVID-19) Regulation 2022.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Building Defects – Who is Liable?

Can the director of a building company that is responsible for the construction of a new strata building be held personally liable for defects in the building?

The Design and Building Practitioners Act 2020 (Act) was introduced in 2020 and provides that a duty of care is owed by “a person who carries out construction work” to an owners corporation to avoid defects in the construction of the building. But who exactly is classified as “a person who carries out construction work”?

Is “a person who carries out construction work” limited to the entity that was contracted to do the work such as the builder or does it also include all persons involved in completing the project such as a supervisor, project manager and even the director of the builder’s company or the developer?

Personal Liability of Project Manager

A recent decision by the Supreme Court of NSW has found that the husband of a director of a building company was personally liable for defective building works done by the builder under the Act because he acted as the project manager and supervisor of the builder: see Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624.

In this case, the builder was placed into liquidation and the developer brought proceedings against Mr Roberts the husband of a director of the builder.  According to the Court, Mr Roberts was a project manager of the builder, supervising construction works for the project. Therefore, Mr Roberts was found to be “a person who carried out construction work” under the Act and was found liable for the defects.

Liability of Developer

In another recent Supreme Court case, an owners corporation sued the builder and developer for damages arising from defects.

The Court found, among other things, that a developer could be held liable for defects under the Act as a person who carried out construction work.

The Court also said that under the Act, a person could be liable for defects if they could (but did not necessarily) have control of the building works: see The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659.

Conclusion

These cases have far reaching consequences for directors, supervisors, project managers, developers and sub-contractors involved in construction work who all could be liable to owners corporations for defects under the Act, even for work done up to 10 years ago (as the Act is retrospective). However, for those persons to be liable, it must be proven that they have had or could have had some control over the building works.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

NSW has experienced unprecedented wet weather this year which has made it difficult to find contractors who are able to repair common property defects in strata blocks.

However, the duty to repair common property is a strict one and there are limited exceptions to that rule. So does the recent inclement weather provide an owners corporation with a lawful excuse for delaying essential repairs and maintenance?

In this article we take a closer look at the responsibility of an owners corporation to repair common property… Rain, Water Leaks, Delays, Tenants and Common Property Fixes.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.