A Little Book of Strata

Things in small packages can be sweet.  And, it’s no different with help about body corporate management in Queensland.

What you need is not too little and not too much.  Just enough to help but not so much as to confuse.

The clever people at Stewart Silver King and Burns have supplemented their excellent website www.livinginstrata.com.au with a short booklet called the Little Book of Strategies.  It’s filled with 27 simple and good ideas to help you cope better in strata title.  And, it’s free if you join the Living in Strata website.

 I found it useful and a nice way to introduce people to some of the key things to know and do.  And, it’s got a fresh and modern style to it too.

So, well done SSKB.

And see you with your little book of strata somewhere soon.

Francesco …

Much Ado About Nothing Much

NSW Supreme Court sends a small dispute about an expert back to the Local Court to get it right ... and the long running strata dispute behind it continues

This strata case comes about in slightly unusual circumstances.

Maddrell Management was the onsite manager at Strata Scheme 62893 under a long term contract that provided that if the parties could not agree about the review of charges in year 5 they could get an expert appointed by the NSW Law Society to independently decide.  They couldn't agree and Troy Peisley, a lawyer, was appointed as the independent expert.  Maddrell Management and Strata Scheme 62893 paid Peisley $30,000 and supplied requested information but no final decision was ever made by him.

So they sued Peisley for the return of the $30,000 and in December 2009 the Local Court decided in thier favour and ordered the return of the payment.

Peisly appealed the decision to the NSW Supreme Court and it had to consider whether the Local Court properly decided things.  In particular, whether the way the case ran and was argued (as a claim for total failure of consideration) was correct or not and whether it excluded Peisley's equitable defences: that he had detrimentally changed his position by doing most but not all of the work.

You see, Peisley never argued that he didn't provide the final determination.  Rather, he argued that he could not finish it because Maddrell Management and Strata Scheme 62893 did not supply the required information, his instructions had been suspended and/or withdrawn and that theses thing prevented Maddrell Management or Strata Scheme 62893 from getting their money back.

So, the Court had to decide whether the dispute was about breach of contract or restitution, whether the Local Court understood that and whether the Local Court decided it on the correct principles.

The NSW Supreme Court agreed with Peisley that case had been wrongly decided.

The Court decided when the Local Court prevented Peisley arguing his defence grounds it was wrong; he should have been allowed to do so and the Local Court shoudl have considered them when deciding the case.  The mistake occurred because Maddrell Management and Strata Scheme 62893 had not described the legal framework of the case in the documents and framed it's case during the hearing as a contract case: saying that Peisley failed to supply what contractually agreed (the final determination) and therefore the whole contract failed.  

In fact the correct legal formulation of the claim was that actually about unjust enrichment by Peisley for being paid for work that was not done (or completed) and restitution of the aprt of the payment that he was not fairly entitled to keep.  This is an equitable claim and, as such, involves notions of fairness for all parties.

The Court reviewed the transcripts and the decision from the Local Court and concluded that this was never properly recognised at the hearing,  It also decided that the result may have been different if the correct legal principles were applied.  

So, it overturned the Local Court decision and referred the case back to the Local Court to be re-heard following the correct principles.

This decision provides some important lessons for everyone as follows.

1. In this case, the claiming parties failed to clearly identify the legal bases for their claim and this led to confusion in the presentation of thier case.  So, make sure legal actions are well prepared and the base principles are clear.
2. When using experts to determine things make sure the required information is clear and is all supplied.  And, be careful about suspending the expert's work.
3. Try to keep things in proportion since it's likely in this case the amounts spent  by the parties with Peisley, the first Local Court case, the appeal and a second Local Court case is more than the difference between them over the year 5 charges review.
4. If you have to run Court cases do so properly and carefully by getting the best advice and representation you can find.

I guess everyone involved in this dispute ended up arguing more and more about less and less.


This is another of my Casewatch - a service reviews important strata and community title cases in an easy to understand way for strata stakeholders 

Francesco ...

Swimming pools are troubled waters …

Swimming and swimming pools are supposed to be fun ... right?  Cooling off when it’s hot, lazing beside them when you feel lazy, watching the kids have fun and even a place for the dogs to burn off some energy.

But, when the swimming pool is in a multi dwelling property (like strata apartments) they are also troubled waters.

That’s because there’s a lot of safety controls over pools.  For instance in Queensland, pools are controlled in the following ways.

• There are government trained and accredited pool safety inspectors
• All pool enclosures must be certified and the certificate to be displayed at the building entrance or at the pool itself
• Doors and windows cannot directly access pool areas and need transit areas and/or opening restrictors
• A maximum 100mm gap only is allowed under a pool fence
• No climbable object can be within 300 mm of the pool fence or barrier
• New resuscitation signs with more details are required for all pools

For further clarifications go to the government website, it is www.dlgp.qld.gov.au/pool-safety/pool-safety-laws.html

And, it seems that most existing pools in Queensland will not comply with these new restrictions.

So, watch our before your next dive into the swimming pool.

Francesco …

Strata Blogger Interviewed

Most people think bloggers spend hours in front of computer screens on the world wide web.

But that’s not true of all of them as this recent interview of this strata blogger by Michael Darby of Quantum United Management in Melbourne.

In the interview I’m asked about a range of strata and non-strata issues of interest and that might interest you too. 

Francesco Andreone from Michael Darby on Vimeo.

Thanks Michael for making and editing the interview.

Francesco …

A Cool Pool

Here's an interesting urban initiative in New York.

After the last sweltering summer there, +Pool began a proposal for a public pool that would float in one of the rivers of New York City. An innovative filtration system would make it possible to use actual river water in the pool. The pool designers are raising funds for the project on Kickstarter.

+ Pool says 'as a New Yorker, you spend most of your time on an island surrounded by water, and when it gets as sweltering hot as it does in New York, you naturally start fantasizing about swimming in the river. But the rivers here aren’t the cleanest and swimming in them isn’t necessarily the best idea. We wanted to do something that could change that'.

It's a cool pool and an idea that could be used in many other places in the world.

See you in your swimmers.

Francesco ...

Save (or Kill?) the Trees

I know we're all supposed to save the trees because they are precious in the urban environment and they will help save us and the planet.  But not every tree is as valuable as every other and some trees actually have a negative affect on things.

In Sydney there's the notorious Camphor Laurel whose roots can spread many metres and destroy everything in their path (and most things above them too).  I'm sure if you have one growing in or next to your place you'd probably stop loving trees too. 

So, views are polarized with many people and councils want to preserve trees at all costs and property owners wanting them gone for practical and economic reasons.  But, often no-one knows their true cost and/or value.

Well, in South Devon they've identified a similar problem with the Leyland Cypress and are doing something about measuring the costs and benefits.  Using open source software developed by the US Forest Service, the South Devon Council is calculating the value of its urban forest – not just the notorious suburban cypress, but grander trees, too.

There’s very little assessment done of the financial burden caused by trees and this study will collect data on the way trees save energy, store and sequester carbon (and at what rate), and reduce pollution through filtration.  The ‘structural value’ of the trees, including the cost of replacement will also be assessed.

In the USA, i-Tree Eco has already made its mark. A study valuing the ecosystem services of New York’s trees at $122 million a year prompted Mayor Bloomberg to back the planting of one million trees over a ten-year period.

Putting a price on natural resources may go against the grain for naturalists and aesthetes, but it represent a ‘bottom line’ which holds sway for communities, businesses and policymakers alike.

You can read more about the South Devon Council’s initiative here.

See you under a tree soon – either enjoying the shade or cutting it down.

Francesco ...

Anti–Graffiti is Popular Too

I love graffiti but realise that it's not always attractive or appropriate so thought I'd balance things out in my diatribe about street and building art in this blog and provide some information on graffiti prevention and removal.

This appears to be big business these days with a few operators who specialise in graffiti removal and other related building clean-up services.

There's many options for removing graffiti but Tim Ritchie at Graffiti Clean tells me the latest buzz is CPED (Crime Prevention through Environmental Design).  CPED is a multi-disciplinary approach to deterring criminal behavior through environmental design and relies on the ability to influence offenders before activity.  The key components to CPED include.

Natural Surveillance to increase the threat of apprehension by taking steps to increase the perception that people can be seen by designing the placement of physical features, activities and people in such a way as to maximize visibility and foster positive social interaction among legitimate users of private and public space. Natural surveillance measures can be complemented by mechanical and organizational measures like camera monitoring.

Natural Access Control to limit the opportunity for crime by taking steps to clearly differentiate between public space and private space. By selectively placing entrances and exits, fencing, lighting and landscape to limit access or control flow, natural access control occurs.  Natural access control is used to complement mechanical and operational access control measures.

Territorial Reinforcement promotes social control through increased definition of space and improved proprietary concern. An environment designed to clearly delineate private space by using buildings, fences, pavement, signs, lighting and landscape to express ownership and define public, semi-public and private space, results in natural territorial reinforcement. Additionally, these objectives can be achieved by assignment of space to designated users in previously unassigned locations.

Maintenance is an expression of ownership of property. Deterioration suggests less control and a greater tolerance of disorder. The Broken Windows Theory is a valuable tool in understanding the importance of maintenance in deterring crime. Broken Windows theory proponents support a zero tolerance approach to property maintenance, observing that the presence of a broken window will entice vandals to break more windows in the vicinity.

Activity Support increases the use of a built environment for safe activities with the intent of increasing the risk of detection of criminal and undesirable activities. Natural surveillance by the intended users is casual and there is no specific plan for people to watch out for criminal activity but it helps.

Funnily enough I like all this theory about urban environments even though it may stop some great graffiti.

And, thanks Tim and Graffiti Clean for the information.

Francesco ...

More Aussie Strata Bloggers

If you’re reading this you’re interested in web based and electronic information about strata title matters.

So, I thought I’d share some links to other strata bloggers (defining that term loosely) in Australia.  After all we’re part of the same community and we're all interested in getting the word out about strata.

Firstly, there’s Jimmy Thomson, the enfant terrible of Australian strata.  Jimmy writes the Flat Chat column in the Sydney Morning Herald’s Domain every Saturday and likes to champion the people’s issues in strata.  His website flat-chat.com.au features his columns and a forum where the topics are explored in more detail by him and others.

Secondly, there’s Michael Teys.  Lawyer, strata manager and property developer who's now running Teys Lawyers in Sydney and focusing on legal work for strata corporations.  He’s been blogging about high density property for a while but his blogs are now more strata-centric.  Check them out at http://www.teyslawyers.com.au/blog/

Thirdly, there’s StrataLive.  It’s not a blog or a column.  It's a website with a lot of other people’s information about different strata issues and is more focused on what owners want in broader terms.  Have a look and maybe even join at http://www.stratalive.com.au/

And finally, there’s Strataman.  The ageing superhero of Australian strata.  He’s been around for a while and his website is correspondingly detailed: packed with masses of technical information about NSW strata for those who want things done in the superhero way.

This list excludes government sites since their information is sanitised. I’ve also excluded association and group sites since they’re really just for their members and I’ve excluded strata manager and other business sites since they are inevitably (and properly) commercial.

So, sadly, that’s about it for regular, detailed and accurate information about strata in Australia.

Please enjoy my and my fellow bloggers' sites and why not think about starting your own too as there’s plenty to say and everyone’s opinion counts.

Francesco …

So, Who Actually Wants to Spend Strata Money?

We’ve all heard the whining about how people in strata don’t want to spend money.  It’s a universal problem that needs addressing.

And, it’s come up again in Jimmy Thomson’s recent Flat Chat column ‘Double Downsize Eases Squeeze’ where he focuses on pressure to downgrade building services by empty nester owners on tightening fixed incomes.

That it got me thinking about how most people in strata can’t or don’t want to spend money - not just empty nesters.  After all (when you think about it) this is what we're all facing.

Firstly, there's investors who don’t want to spend any more on strata levies than they have to because it lowers their rental yields (which is fair enough) - but since that’s almost half of the strata owners in Australia it makes for a big part of strataland.

Secondly, first time apartment owners who have stretched themselves to buy, are happy to keep their strata expenses down (and that’s also pretty reasonable) - and that group could represent 10% to 15% of strata owners.

And finally, there’s the retirees (whether wealthy or not) who rely on investment income that’s fixed and been declining so want to be as frugal as possible with their money since they aren’t making any more of it (which is what I’d do too) - that group might represent another 10% to 15% of strata owners.

So, we’ve got 75% to85% of strata owners with real and legitimate reasons to spend less in their strata buildings.

So, who’s left?  The remaining quarter of the owners who don't have personal reasons to spend less probably don’t actually want to spend more either.  Plus they're probably busy working and occupied with all the pressures of family, business and life.

Since democratic owners’ rights and legal obligations just don't cut it because of these structural factors mitigate to frugality, it tells me that unless there are incentives given to and pressures placed on strata owners nothing will change.  Investors need financial imperatives, retirees need security incentives and new home owners need some help.

How these get created, who will do it and how they’ll filter through strata decision making is anyones' guess.  But at least realizing the nature and extent of the problem is a start.

See you at the strata bank saving your strata pennies.

Francesco …

Reverse Engineering at a NSW Community Scheme ... and it worked!

Down on the NSW- Victorian border, where the Murray River runs languidly to South Australia, there's been a surge of community title real estate development.

One of those development is Rich River Lake Estate.  A 105 lot development that includes detached houses, roads, open sapce areas, some communal facilities and tourist accommodation.

But Rich River Lake Estate has a complicated titling structure resulting from the way the development was staged.  The 105 lots are divided into a series of neighbourhoods associations as subsidiaries of a community association.  The owners believed the structure was "complicated, unwieldy, unfair and impracticable" and wanted to simplify it.  For instance, the 10 neighbourhood associations were not similar in size and instead there were 2 lot neighbourhoods and one of 52 lots.

So the community association applied to the NSW Supreme Court to terminate the neighbourhoods and vary the community scheme structure to end up with -

• 1 community association
• no neighbourhood associations
• each lot owner having one vote
• integration of all shared use property into the community association
• converting one lot into community property
• extending the benefit of a right of way to all owners

This was an unusual case because its very rare for the NSW Supreme Court to decide any community title cases and even less likely for those cases to be about changing the community association.

An important issue in the case was to understand the position of the owners and the mortgagees as they have the most interest in any changes.  In this case the widespread support for the changes made it a lot easier.  And, the Court had to consider what considerations are relevant (and which matters are not) ultimately needing to be convinced that the existing structure was or had become impracticable.

The Court decided to modify the structure of Rich River Lakes Estate.

In doing so the Court decided that since there was no objection to the proposal after advertising and because the requirements of the mortgagee's consent to the proposal could be satisfied it could proceed.  And the Court decided that the substantive requirements were also satisfied since impracticable did not mean impossible and the current arrangements at Rich River Lake Estate was impracticable since it was different to the original development plan and worse (in practical and theoretical ways).  The Court said "lot owners are entitled to adopt a simplified scheme".

In deciding the case the Court also approved 2 earlier cases involving terminating and change community schemes. Namely, Community Association DP 270064 v Registrar Generalof NSW [2004] NSWSC 961 and Neighbourhood Association DP 285249 v Watson [2008] NSWSC 876.

And the Court also recommend changes to section 70 of the Community Land Development Act 1989 to allow these kinds of changes without a Court application when all owners and mortgagees agree.

The case has the following implications -

1. It means that community schemes can be changed in a range of situations so that existing unworkable or impractical arrangements can be improved.
2. The earlier NSW Supreme Court cases about community titles law are good law.
3. Developing a community title scheme differently to the development plan could lead to later changes if the differences are undesirable to owners.
4. It's easier to get changes approved if all owners agree but that is not enough on its own.

You can find the full decision here -  Community Association DP 270064 v Registrar General Department of Lands [2010] NSW 1558, decided by the NSW Supreme Court on 13 December 2010. 


This is another of my Casewatch - a service reviews important strata and community title cases in an easy to understand way for strata stakeholders 

Francesco ...

Strata Disputes will Cost More in NSW

After 1 July 2011 if you want to go to the CTTT for a strata dispute in NSW you’ll have to pay more.

The Strata Schemes Management Amendment (Fees) Regulation 2011 raises the amounts payable in strata disputes as follows –

Application for orders  - $74 [up from $72]

Issuing summons - $40 [up from $39]

Copies of documents - $2 per page with a $28 minimum [up from a $27 minimum]

Mediation application - $74 [up from $72]

But the charges inspect strata records and for information certificates stay the same at $30 for a 1 hour inspection plus $15 for each extra 30 minutes and $104 for a certificate plus $52 for a further certificate for garages, parking spaces, or storeroom.

That’s an increase of between 2.5% and 2.8%.

So, you’d better raid the piggy bank for your next strata dispute in NSW.

Francesco …

3D Chasm in Stockholm Square

Here’s some amazing street art in Sergels, Stockholm called Mind Your Step.  It’s a 3D optical illustion created by Erik Johansson that gives the impression that you about fall into a deep chasm in the Earth.

It’s pretty cool, but watch your step in this city plaza.  And, you can see more here.

Francesco …

Researching what Strata Owners Want

Last week Mathew Moore wrote a short article in the Sydney Morning Herald called Strata: lessons in how to run flats where he spoke about the initial findings of the research by the City Futures Centre at the Faculty of the Built Environment at UNSW which revealed some interesting things about what strata owners and executives want after finishing interviews with executive committee members.

Apparently, more than a third of those running strata schemes struggle to get relevant information about what they are required to do.  Three-quarters wanted a formal training system to improve the level of understanding of complex issues.

A third of the survey respondents said it was hard even attracting people to sit on executive committees.  And, over half said that as well as their regular committee duties, they also had to deal with defects in their buildings.

It seems that whilst most people were happy with things generally there was an urgent need for more support for those running the schemes to handle more difficult and extra issues.

The article’s worth reading and I’ll be watching to see what more comes from this interesting research since it’s the first this many Australian strata owners have been able to tell someone what they think.

And, it reveals that it's harder for strata owners and committee members to get what they need and want in strata.

Well done Matthew and City Futures.

Francesco …

Stop Strata Smoking … For the Sake of the Children

Last month I posted about the recent flare up in the debate about banning smoking in strata buildings - in both common areas and inside apartments.

Since then, I’ve done some more research on the issue after Nicole Johnston, from Griffith University, sent me a Journal article about the effects of tobacco smoke exposure on children who live in multi unit housing.

The article was written by Karen M Wilson, Jonathan D Klein, Aaron K Blumkin, Mark Gottlieb and Jonathan P Winickoff, was published in the Journal of the American Academy of Pediatrics and makes some very interesting findings and observations including the following things.

• Tobacco smoke exposure causes illness in children, including asthma and respiratory infections, and has been associated with sudden infant death syndrome, metabolic syndrome and otitis media.
• The researchers surveyed over 5200 children in this study.
• Tobacco smoke drift can be measured in high quantities more than 20 feet from an outdoor source.
• Tobacco smoke can migrate through walls, ductwork, windows, and ventilation systems of multi unit dwellings and potentially affect residents in other units far removed from the smoking area.
• Tobacco toxins may persist on and be absorbed from surfaces in the indoor environment well beyond the active smoking – known as third hand smoke.
• Some US municipalities have proposed legislation to reduce or ban smoking in apartment buildings including introducing smoke-free policies.

So, it seems from this study that children in apartments had higher mean cotinine levels than children in detached houses and potential causes for this result could be seepage through walls or shared ventilation systems.

I was very surprised by the article and am far more concerned about the possibility of adverse health effects in strata buildings from smoking than I was about the annoying smoke and odours everyone else complains about.

The authors also say, when commenting on the proposition that dictating what can be done in private dwellings is an infringement on personal privacy and liberty that, ‘the argument only holds true if smoking in an adjacent apartment has no impact on one’s neighbour’.

So, maybe we should all stop smoking in strata buildings to help save the children.

Francesco …