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Making your voice heard as a tenant

Making your voice heard as a tenant

Published on June 15, 2016 by Alex Collie and Martin SlatteryAlex Collie and Martin Slattery

The cost of real estate in Sydney is an inescapable topic these days, and one of its consequences is a greater proportion of people renting. At the same time, and quite possibly for similar reasons, more Sydneysiders are living in apartments than ever before. But what issues might face the growing number of apartment tenants, and what changes are coming that might improve their lot?

Due to the close confines of apartment living, the behavior of neighbours can often be a major nuisance to residents. Problems relating to unreasonable noise, drifting smoke or littering in common property are often the subject of complaint for long-suffering residents. Renters in apartments can often feel as though they are a forgotten group when it comes to their interest as occupiers. They have no legal right to any involvement in the owners corporation and due to their lack of influence in the owners corporation many report that their grievances fall on deaf ears. However, tenants suffering problems due to actions of other occupiers in the strata scheme do have avenues to pursue. In addition, strata law reform set to commence in the second half of 2016 will provide renters with a greater voice in strata management.

Many of the problems that renters in apartments face can fall in the definition of a ‘nuisance’ as mentioned in s117(1)(a) of the Strata Schemes Management Act 1996. Cigarette smoke, a common cause of grief for those living in strata, has previously been found to constitute such as nuisance.[1] Other nuisances include noise[2], leaking water[3] and the storing of items in car spaces.[4] Any occupier, including renters, may apply to the NSW Civil and Administrative Tribunal (‘NCAT’) to seek an order that the offender cease whatever activity is causing the nuisance. Prior to seeking any order, the parties will typically be required to mediate to see if an arrangement can be reached before requesting the Tribunal’s intervention.

The options available for renters, however, are set to improve with the passing of the Strata Schemes Management Act 2015. Expected to be in force in the second half of 2016, the act includes a number of new reforms to strata management.

A significant change to the law in regards to ‘nuisances’ is that the relevant section will now include the words: ‘Depending on the circumstances in which it occurs, the penetration of smoke from smoking into a lot or common property may cause a nuisance or hazard and may interfere unreasonably with the use of enjoyment of the common property or another lot’. It is arguable whether this changes much, given that prior to this new wording cigarette smoke had still be found in some cases to constitute a nuisance. It may, however, suggest that the tribunal will be more willing to consider smoke a nuisance necessitating an order, particularly where the circumstances show it to be problematic.

The other change assisting renters or other occupiers plagued by smoke is a proposed change to the ‘model by-laws’. The ‘model by-laws’ act as the default by-laws for many strata schemes and Owners Corporations will often update their by-laws to reflect the model laws. Whilst the new model laws are yet to be finalised, the New South Wales Government has stated that a new model by-law will be introduced that allows Owners Corporations to ban residents from allowing smoke to drift into another person’s lot.

Finally, the new Act includes a requirement for the Owners Corporation and owners of lots in the scheme to comply with the by-laws – effectively making them part of a contract. The change should allow greater legal pressure to be placed on unresponsive Owners Corporations in order to achieve results. With the reforms increasing the financial penalty for individuals breaching by-laws from $550 to $1100, it is hoped that the added bite to the enforcement of strata regulations should improve the lot of beleaguered apartment dwellers.

The strata reforms will also allow renters to have a more active role in the management of the strata scheme in which they reside. In apartments where at least half the lots are occupied by tenants, those tenants may nominate a single ‘tenant representative’ who may attend strata committee meetings, although they may not vote, act as an office or count towards any quorum. They may also be requested to leave the meeting when financial matters are to be discussed. Tenants are also to be notified of the agenda of any meeting of the Owners Corporation a week before it is to be held.

[1] The Owners Corporation of SP49822 v May & Ors (Strata & Community Schemes) [2006] NSWCTTT 739.

[2] E.g. Lark v Wang (Strata and Community Schemes) [2008] NSWCTTT 1459.

[3] E.g. Owners SP 14134 v Ridge (Strata & Community Schemes) [2002] NSWCTTT 277.

[4] E.g. Faddy & Houtzager v Payn (Strata & Community Schemes) [2011] NSWCTTT 336.

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