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We have a By law authorising the installation of an Intercom system for the use of resident owners,The bylaw states that the resident owners are responsible for the costs associated with the installation and ongoing maintenance costs. Both Fair Trading and Land 7Property have stated that as an adjunct to the Bylaw and to make the bylaw legal,the OC needs to have a written agreement,in which the resident owners agree to the transfer of all costs and that this agreement should have been obtained when the By-law was registered.When challenged at a recent EC meeting the Strata manager stated that this agreement did not apply in 1999/2000 when the bylaw was registered.Any comments or info
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Is it perhaps that the legislation requires an agreement with a particular person? We (in the ACT) got around this sort of problem with legal advice that the OC could resolve to grant exclusive use to ‘the owner of the unit for the time being’ or ‘at any time’. That is to whoever is the unit owner at any particular moment. That way the exclusive use would run with the unit. Of course, that might not have been the issue where you are.
We also have a ‘rule’, that is, a by-law, also checked out with legal advice, that any facility provided for the exclusive use for the owner of one unit is the responsibility of that unit owner to maintain.
Both of these provisions were set up to avoid needing to have individuals sign bits of paper which would have to be remade with new owners each time a unit changes hands.
John – the current NSW Legislation is the Strata Schemes Management Act (SSMA) that was made law in 1996 and so predates your Plan’s special by-law, that as I understand from your post (#1) allows for the installation of an intercom system by owners, not as an exclusive use arrangement as your topic title suggests, but rather as a permitted change / addition to the common property of the Owners Corporation (O/C) under the provisions of Sect 65A of the SSMA.
If my interpretation of the basis of your Plan’s special by-law is correct, then your observation about the requisite prior written agreement of affected owners to its provisions regarding the on-going maintenance of the intercom system is also correct, where Cl.4 of Sect 656A states:
“A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.“
In the absence of owners’ written agreement above, then the O/C remains responsible for the ongoing maintenance and repair of the intercom system’s “backbone” from the handset/s to the main access panel.
The lawyers may disagree, but on the assumption that you wish to resolve this matter, I am of the opinion that rather than doing so by amending the special by-law by way of a special resolution at a General Meeting just to included words such as “owners by their written agreement will be responsible for on-going maintenance etc etc” and by then including that collective agreement as a supplement to the amendment, it would be tidier and just as effective for the relevant owners to make that formal agreement after the fact, to submit that document to the next meeting of the Executive Committee, for the existence of that document to be recorded in the Minutes, and for it to be then held by the Strata Manager with the other documents of the O/C.