This article about who pays for the Fire and Rescue NSW call out fee has been supplied by Carlo Fini, Lewis & Charles Lawyers.
Question: Our tenant set off the common property fire alarm. The fire services attended and charged a $1,760 call out fee. Are we expected to pay?
Our tenant burnt some food and smoke filled the unit. She opened the front door and set off the body corporate/common property fire alarm and the Fire and Rescue NSW attended.
We have now received an invoice for $1,760 from Strata. Due to a bylaw, the tenant doesn’t have to pay. The owner pays the call out fee.
The tenant has refused to pay the fine.
We have applied to NCAT and the first hearing told the tenant that if the property manager keeps asking her to pay it is harassment and she could sue the owners! We were adjourned and told to go back to Fire Services to waive the fee. The Fire Brigade won’t talk to us and keep telling us to talk to the Strata as they own the system.
We are very distressed and lost – what can we do?
Answer: The fee is payable by the person who requested the fire brigade to come out, which is usually the owners corporation because it is the owners corporation’s fire alarm that summons Fire and Rescue NSW.
Under section 42(1)(e) of the Fire and Rescue NSW Act 1989 and clause 47 of the Fire Brigades Regulation 2014, the NSW fire brigade can charge a fee of $1,600 (ex GST) for attending a building in response to a false fire alarm. The fee is payable by the person who requested the fire brigade to come out, which is usually the owners corporation because it is the owners corporation’s fire alarm that summons the fire brigade. So, if you have asked the fire brigade to waive the fee, then they are probably not interested in doing so because you are not the person liable to pay it to them and it should be the owners corporation requesting that the fee be waived.
Many owners corporations have by-laws that allow them to recover false fire alarm fees from residents responsible for setting off false fire alarms. However, where the resident is a tenant who caused the false fire alarm, sometimes the by-law purports to make the landlord responsible to pay the fee even though the landlord had nothing to do with the fire alarm being set off. Whether a by-law can do this is debatable because it purports to make one person liable for the wrongful act of another person where the first person has no knowledge of or control over what the second person is doing. A by-law that does that may infringe the requirement in section 139(1) of the Strata Schemes Management Act 2015 that a by-law must not be harsh, unconscionable or oppressive, and if a by-law is harsh, unconscionable or oppressive, then NCAT can declare it invalid under section 150 of the Strata Schemes Management Act 2015.
It is not clear why the by-law in your case means your tenant does not have to pay the false fire alarm fee. If that is the case and the by-law makes you as landlord responsible to pay the fee simply because you are the landlord, then that arguably makes the by-law invalid for being harsh, unconscionable or oppressive because it imposes the fee on a person who is innocent whereas it does not impose on it the person who is guilty of setting off the false fire alarm. It may be that it is easier administratively for your owners corporation to pursue you for the fee rather than your tenant but that is not a consideration in determining whether the by-law is valid.
You should tell your strata manager that you are not liable to pay the fee because you are not responsible, the by-law cannot make you responsible for something you did not do and to the extent that the by-law purports to make you responsible, it is invalid. You should also make sure when you pay your strata levies that at the same time you pay you give a direction to your strata manager that your payment is for your strata levies only and not this fee, to ensure you remain a financial owner for voting at general meetings.
If your strata manager and owners corporation continue to pursue you for the fee, then you should apply for mediation at NSW Fair Trading against your owners corporation on the basis that the by- law is invalid and if you cannot get a satisfactory outcome through mediation, you would have to commence a case against your owners corporation in NCAT to get the by-law declared invalid. You may need to get legal advice before bringing that case in NCAT.
You would only be able to recoup the fee from your tenant if you are liable to pay it (which is doubtful for the reasons above) and there is a legal basis for you to recoup it from your tenant such as under a clause in your residential tenancy agreement. It is not clear what the NCAT member meant when they said suing your tenant to recoup the fee may be harassment but that may be a way of the NCAT member telling you that your case against your tenant is not winnable and you should seek legal advice.
Please note: This is not intended to be legal advice. You should seek legal advice specific to your situation.
This post appears in Strata News #454.
Have a question about who pays for fire brigade call out fees or something to add to the article? Leave a comment below.
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