Successfully reported this slideshow.
We use your LinkedIn profile and activity data to personalize ads and to show you more relevant ads. You can change your ad preferences anytime.

Watergate - The Decision & Its Implications


Published on

Strata Briefing for Owners Corporations & Strata Managers

Published in: Education
  • Be the first to comment

  • Be the first to like this

Watergate - The Decision & Its Implications

  1. 1. © Copyright TEYS Lawyers 2013 Decision & Its ImplicationsApril 2013
  2. 2. © Copyright TEYS Lawyers 2013 Bacon on the Watergate DecisionMichael Teys on the Wider ImplicationsTonight’s Presentations
  3. 3. © Copyright TEYS Lawyers 2013 Tom BaconTom joined TEYS Lawyers in June 2010 from Auckland, NewZealand, with five years experience in dispute resolution, localgovernment/ town planning and civil litigation. Tom advises on allaspects of strata community disputes in the Australian states, withcurrent matters in NSW, Victoria and the ACT.Tom is an accredited LEADR mediator, and places a high emphasis on resolving disputeswithout the need for protracted litigation. In his previous roles, Tom acted on numerous high-value local government and environment appeals, and public indemnity insurance claims.Tom has regularly appeared for clients in both mediations and hearings in theDistrict, Environment and High Courts of New Zealand, and in NSW in the Consumer, Trader& Tenancy Tribunal (CTTT) ,the Local Courts and Supreme Courts.
  4. 4. © Copyright TEYS Lawyers 2013 Problem at Partygate 5 operators 40 units Average stay less than 3nights Cost of additional securityand cleaning Diminution of valuableunits Owners moving out
  5. 5. © Copyright TEYS Lawyers 2013 Under the OC Act 2006S.138 – Power to make Rules of theOwners Corporation – ie, to restrict orprohibit lot owners from letting unitsfor commercial use, or for periods ofless than 30 daysS.140 – a Rule will be deemed tobe of no effect if inconsistentwith another Act or Law(ie, Residential Tenancies Act1997)
  6. 6. © Copyright TEYS Lawyers 2013 Zoning / PlanningControlsNo town planning permit required forcommercial activities in prescribed DocklandsareasDocklands is a mixed-use zone, designed to caterto a variety of residential and commercial needsin close proximity to each other
  7. 7. © Copyright TEYS Lawyers 2013 of Melbourne EnforcementS. 106 Building Act 1993– the use of the unitscontravenes theoccupancy permit forthe buildingThe occupantcharacteristic, fire safetyneeds and reaction to afire or other emergenceshave varied from that forwhich the building wasoriginallydesigned, approved andintended to be used
  8. 8. © Copyright TEYS Lawyers 2013 Code of AustraliaClass 2 - a buildingcontaining 2 or more sole-occupancy units each beinga separate dwellingClass 3 – a residentialbuilding, other than Class 1or 2, which is a commonplace of long term ortransient living for a numberof unrelated persons,including (b) a residential partof a hotel or motel…
  9. 9. © Copyright TEYS Lawyers 2013 of DwellingDerring Lane P/L v Port Phillip City Council (No. 2)(1998) 108 LGERA 129“A building constructed for the purposes of peopledwelling there permanently or for a considerableperiod of time, or having in that building their settledor usual abode”
  10. 10. © Copyright TEYS Lawyers 2013 FindingsThe building‟s fire safety and construction design nevercontemplated this commercial use, and may trigger the building‟sfire safety systems to be reviewed and re-designedThe use of a hotel business is not permitted within Class 2buildings and is considered a change of useThe Appellants were using the apartments like a „hotel‟ business
  11. 11. © Copyright TEYS Lawyers 2013 Teys is the Founder and Principal Lawyer of TEYS Lawyers. Hehas a Bachelor of Laws and practices exclusively in the area of strata titlelaw. He is a Fellow of the Australian College of Community AssociationLawyers. He was formerly an Adjunct Lecturer with Charles Sturt University.He appears weekly on SKY News Business Channels Property Successwith Margaret Lomas and is a regular panellist for the property edition ofYour Money, Your Call for the same channel. You can read Michael‟s blogat and follow him on Twitter at @MichaelTeys.comTeys Lawyers practice nationally in strata title law representing owners corporations, bodiescorporate and apartment owners. The firm‟s practice groups include building defects, stratacommunity disputes, strata titles property law, by-laws and levy collection.Subscribe for their free e-newsletter StrataSpace and find out more about them Michael Teys
  12. 12. © Copyright TEYS Lawyers 2013‟s Wider ImplicationsResidential Class 2 dwellingdoes not include the use byshort term guests withhotel-style servicesAll strata ownersand managerswhere lots areused this wayBreaches BuildingAct and vitiatesinsurance policiesDocklands, Victoria, Australia
  13. 13. © Copyright TEYS Lawyers 2013 Fundamental Strata DutiesTo act honestlyand in good faithTo exercise duecare and skill
  14. 14. © Copyright TEYS Lawyers 2013 Chain of Legal LiabilityOC (S.5)Committee(S.117)Managers(S.122)
  15. 15. © Copyright TEYS Lawyers 2013 Statutory Duty to Insure Strata S.59 building insurance S.60 public liability Insurance Contracts Act(1984) (Cth) duty ofdisclosure
  16. 16. © Copyright TEYS Lawyers 2013 of Risk ExclusionYou must promptly adviseus…….. if the nature of theoccupation or othercircumstance affecting yourinsured property is changed insuch a way as to increase therisk of loss or damage or thelikelihood of liability losses
  17. 17. © Copyright TEYS Lawyers 2013 Bodies Have Unlimited Liability An uninsured ownerscorporation or bodycorporate must still pay adamages award Unlike shareholders andclub members, lot ownersdo not have limited liability An administrator will beappointed to strike a levy tocover damages and costs
  18. 18. © Copyright TEYS Lawyers 2013 ActionMake enquiries about useReport improper use to local authoritiesNotify insurerJoin appeals / prosecutions1.3.2.4.
  19. 19. © Copyright TEYS Lawyers 2013 Nicole WildeNicole joined TEYS Lawyers in September 2012 having previouslypractised for four years as a Barrister and Solicitor in Auckland, NewZealand. Nicole advises both owners corporations and lot owners inrespect of all types of Strata Community disputes throughout Australia.Nicole has advocacy experience in a range of Courts and Tribunals and is dedicated toproviding clear, quality legal advice and representation. In her previous roles, Nicole acted onhigh-value construction defect proceedings on behalf of plaintiffs against local governmentand contractors. She has been involved in all stages of the litigation process. In her role as asolicitor for the Office of the Crown Solicitor in Auckland, Nicole provided advice andprosecutorial representation to the regulator of the property agents industry.