Rabu, 05 Oktober 2011

Strata Wars (feat. @MyFlatChat)...

We recently spotted a tweet from @MyFlatChat that said "Tenants can take Owners Corps to Fair Trading and CTTT over common property. They're 'interested parties' under Act" - along with a link to a brief discussion about repairs to a noisy lift that had taken place over on the Flat Chat forum.*

We entered into a bit of a dialogue over this because we don't think tenants in strata units should be taking an Owners Corporation to the CTTT over repairs - they should be taking the landlord instead!

Perhaps we should explain...

Owning a strata unit means sharing many things with others - like walls, guttering, walkways, stairs... essentially anything that is "common property". When one of these things wants fixing, it's up to all the owners to pitch in and make good.

The mechanism by which this happens is the "Owners Corporation" - once known as the "Body Corporate" - and the rules by which this sometimes disparate group are made to play nice are found in the Strata Schemes Management Act 1996. The Owners Corporation is, quite simply, the owners in committee... and being required to talk to each other on a regular basis is seen as a good way to keep the peace, and have the place running smoothly. And everybody can be happy.
Well, it's a good theory.

We really must stress that there are ways of making an Owners Corporation far more complicated than the rather naive picture we've just painted - and no doubt our mates over at Flat Chat can tell you more about that. But, on our simple analysis, what happens when things don't work out?

The Strata Act sets out a process for the resolution of strata scheme disputes in the Consumer, Trader & Tenancy Tribunal. It involves, in the first instance, mediation. If that doesn't work, the matter can progress to adjudication. If adjudication doesn't satisfy the disputing parties, they can appeal to the Tribunal, where the matter can be determined and orders can be made. Each of these things will cost you over $70.

Now, technically a tenant, who is not an owner, can take an Owners Corporation to the Tribunal over repairs to common property, because they are considered an "interested party" under the Strata Act. But when you look at what's involved in the strata division, why would you when there is a sensible alternative?

Compare the above process to that for tenancy disputes - you apply for a hearing in the tenancy division - for $36 - and you get one... and even if you have to have a crack at a conciliation conference in the meantime, if you can't settle the matter you will usually get your hearing pretty soon after.

"Aha!" I hear you say... "but if it's common property, then that's a strata issue, and you can't take the Owners Corporation into the tenancy division of the Tribunal. That place is strictly for landlords and tenants! Have you lost your mind?"

Well, no, actually. Of course, you'd be correct in saying you can't sort out strata issues in the tenancy division, but you've got to admit, it is an ideal place to take a tenancy dispute.

If you're a tenant in strata, it should be your landlord who takes the Owners Corporation to task over repairs to common property. It is, after all, your landlord who has the relationship with them, not to mention a longer-term interest in the success of the strata scheme. Tenants can ask nicely for repairs (and should do so in writing), but when it comes to turning the screws on a recalcitrant Owners Corporation through a legal process, things are best left to the landlord.

If the landlord doesn't get on your side, then they're in breach of obligations to you under your residential tenancy agreement. On that basis, you can take them into the tenancy division of the Tribunal. Among other things, you can ask for an order that they take the Owners Corporation to the strata division - or at least begin the process by commencing mediation.

... and that's how you get your lifts fixed. For more information on renting in strata, see the TU's factsheet. As with all things, get advice from your local TAAS before taking your matter into the Tribunal.

*Nb - the comments on the Flat Chat forum have been updated following our Twitter conversation with @MyFlatChat.