NCAT application under Section 153

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Forums Disputes and litigation NCAT application under Section 153

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  • #235057
    Amelia
    Member

    Hi there. I am wondering if Owners Corporation instruction is required to request the Strata Managing Agent to lodge an application for mediation (or orders?) to NCAT on an individual owners behalf, or if this can be done via majority instruction of the Strata Committee.

    The issue at hand is smoking causing a nuisance to an owner/occupant, who is requesting the Strata Managing to commence the application to NCAT, however just wanting to clarify as to what approval/instruction process is required, as well as to costs associated with this work. Thank you in advance.

    #235093
    Amanda Farmer
    Expert

    Hi Amelia,

    If the applicant for the mediation or the order is to be an individual lot owner, then the strata manager should not lodge the application at all. The individual owner has to do it.

    The strata manager is the agent for the Owners Corporation and can only act on its behalf and with its instructions.

    I suppose it is possible – though unusual – for a strata committee to instruct a strata manager to lodge an application in the name of an individual owner. An experienced strata manager receiving such an instruction should probably say “sorry – that’s outside the scope of my duties as your strata manager. No can do”.

    If, on the other hand, you’re asking how an individual owner may get an Owners Corporation to lodge such an application in the name of the Owners Corporation, that’s a different issue.

    We have discussed previously in this Forum the fact that an Owners Corporation has no express obligation to enforce its by-laws against individual owners, nor the terms of the Act (eg – section 153, nuisance). This post here should fill you in and perhaps give you some action steps. Just read ‘hard floor noise’ as ‘smoking nuisance’ The same principles apply.

    Let me know your thoughts.

    Amanda.

     

     

    #235122
    Amelia
    Member

    Thanks Amanda, I’ll have a look into that further. Much appreciated!

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