Apartment residents are increasingly becoming victims of bullying owners corporations as a result of the NSW government’s two-year failure to plug a loophole in strata law – making it a “toothless tiger”, critics say.
And now new Better Regulation Minister Kevin Anderson has announced the system is being examined for ways to fix the problem – four months after his predecessor said the same thing.
Strata lawyer Samantha Saw of Speirs Ryan is the latest to slam an oversight in the 2016 legislation that leaves the NSW Civil and Administrative Tribunal, the body that rules in strata disputes, with no power to enforce its own orders.
“This hurts the little people who are coming up against an obstinate or bullying owners corporation or strata committee run by a select few because they see themselves as impervious to any penalty against them,” she said.
“It was an oversight, an unintended consequence of the new legislation and we’d like to see this changed urgently, particularly since it was a system introduced that was so concerned to be all about fairness.
“Instead, it leaves us in a bit of a no-man’s land in strata disputes because it negates the value of obtaining an NCAT order since there are no penalties if it’s not abided by, and leaves the law as a toothless tiger.”
One person, for instance, who’s currently suffering is apartment owner Jan Newland who went to NCAT in 2016 over leaks into her unit on Sydney’s lower north shore.
Fixing the leaks on common property, which have been occurring since 2011, is the owners corporation’s responsibility.
In January 2017, NCAT ordered that the leaks be fixed immediately but two and half years later Ms Newland is still waiting.
“Recently, when we had so much rain, the water issue into my home was horrendous,” she said. “No one should be living like this is a city like Sydney when they are paying their levies and their taxes and their rates and left to deal with these unliveable conditions for eight years.
“And that’s not to mention the health and safety aspect and building stability.”
When contacted by Domain, Brad Lewis of Vital Strata, the company appointed to be compulsory strata managers to the block – when a strata scheme is judged incapable of managing itself – in January this year, said something was now being done about the leaks.
“We’ve been involving consultants in what work needs to be done to the slab, tendrils and balcony to draw up the scope of work and are close to putting that work out to tender to a few builders,” he said.
“This is a layered process as it also involves the council, the lot owner and the owners corporation but we’ve been working on it now for four months.”
The previous better regulation minister, Matt Kean, said earlier this year that he had asked Fair Trading to review the legislation to see if reforms were required. But nothing happened.
Now a spokesperson for new minister Kevin Anderson has said: “We want to ensure we are always looking at ways to improve rules and regulation. That’s why the NSW government is currently examining reforms to streamline this process so that it is easier for individuals to directly commence NCAT proceedings to enforce orders and impose monetary penalties for non-compliance.”
But having rules in place, without any penalty for breaching them, makes a nonsense of the whole strata system, Ms Saw says.
“The threat of a penalty is the biggest motivator for abiding by the rules, and without that, it negates the value of even obtaining an order from NCAT,” she said. “We would like to see this changed urgently.”
As an illustration of the general chaos that currently rules, NCAT wrote to Ms Newland about its orders not being enforced, advising her to lodge an application to renew the orders. NCAT principal registrar and executive director Cathy Szczygielski then wrote to her again last year telling her that it had made an error in its advice and there was no legislative provision to renew orders.
‘While I sympathise with the ongoing situation in your lot, NCAT is unable to provide you with advice about how to get your problem fixed,” she said.
Another lawyer, Banjo Stanton of Stanton Legal, says the system needs urgent action. “This [loophole] should be closed, and that’s pretty universally accepted,” he said. “It is a real problem for individuals, especially, who need orders made against someone or their strata plans.”
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