n2s – so now that those few of your fellow owners have failed in their attempts to declare your deck illegal (ref. a previous post), they’ve now decided that as it (or a different area?) is part of the Common Property then you should be paying for the privilege to exclusively use it.

I can help wondering what you or past Owners of your lot have done to raise the ire of these individuals, but the success of their proposal would first of all depend upon the outcome of the vote on a corresponding (ordinary) Motion put at a General Meeting, but more so upon the status (i.e. presumably Registered on the Strata Title) and the wording of the special by-law that grants exclusive use of the area to Owners of your Lot.

Such special by-laws (SBL) granting a Lot Owner “exclusive use” over an area of the Common Property must include a provision about who it is that’s responsible for the on-going maintenance and repair of the area, and you say that’s you as the current Owner, and typically includes a provision that either states the amount of any payment that such an owner will pay for the privilege of “exclusive use” and at what frequency, or that the Owners Corporation may from time-to-time determine that payment; your Plan’s SBL provides for the latter option (right?) that by the way isn’t a “special levy”.

Whilst your O/C would need to substantiate the basis of such a payment, typically from the professionally determined increase in the “value” of your Lot that’s resultant from the privilege, and justify the reasons for it only now being applied (after 40 years), and would perhaps need to calculate an adjustment to your normal Levies to account for it double-dipping on the costs of the area’s maintenance and repairs (but only by you), IF all of the above is satisfied and the Motion passes the vote, then whilst your privilege cannot be rescinded without your written consent, the O/C could indeed enact that condition of the empowering SBL.

So short of lobbying other Owners prior to the vote and insisting upon that documented substantiation and justification that I’ve mentioned before paying a cent (if it comes to that and depending upon the amount), your only recourse in the case of the Motion passing is to seek to have the decision Mediated and if unsuccessful Adjudicated possibly under Sect 149 if the Motion refers (incorrectly) to the payment as a “special levy”. Your success in my opinion would largely depend upon how comprehensively the O/C can prove that it’s ticked all the boxes (and of course the foibles of the Tribunal).

Division 4 of the NSW Strata Schemes Management Act (1996) applies.

n2s – gees that’s a bit extreme given you don’t yet know if the Motion will pass, how much the annual payment for your exclusive-use privilege will be, and whether the Owners Corporation will want or be able to justify / substantiate how it derived that amount!

Our learned Administrator (JimmyT) recently offered this advice to someone who was being harassed by a couple of influential Owners…..

The best answer is “go ahead – and my lawyer will make sure you pay full costs when you lose! “

In your case the “go ahead” relates to those two (2) Owners continually placing a particular Motion on General Meeting Agendas, but in my opinion the above advice is still relevant, particularly as other Owners will eventually wise-up and put a stop to such vindictiveness.

Easy for me to say, but stick it out!