Janet – thanks for typing that entire document as prepared by your Owners Corporation’s Lawyers and for your detailed explanations.
Firstly, I’m not a Lawyer so please don’t take anything in my response as legal advice; it’s just experienced advice with a dash of common sense and a desire to see some form of compromise move things forward.
So….. as the stairs themselves aren’t common property, in the absence of some compromise your Owners Corporation, of which you are ≅10% by the way and therefore paying at least that proportion of the Lawyer’s fees and of any repairs that it may yet make, is entirely responsible for repairing the points of attachment of those stairs to its common property, the access point through the ceiling of your Lot, and the structural members within the attic.
So that dispenses with Items 4 (a), (b), (d), (e), (f), (g) and (h) as those for which your O/C is responsible.
I wouldn’t be acceding to Item 5 as there are mechanisms in the NSW Strata Schemes Management Act to handle breaches, those would override anything in the proposed Special By-Law, Clause 6(b) is only there because your O/C wants a single SBL to cover all affected Lots, and in any case a SBL granting exclusive use can’t be rescinded without the prior written consent of its beneficiary (i.e you and subsequent Owners of your Lot).
Motion 3 is only enforceable against the original Owners of the Lots.
In order to make this response slightly shorter than an epistle, in my opinion the Lawyer’s document is a beautifully worded bluff incorporating some maybe penalties and possible consequences all designed to coerce some existing Owners into agreeing to maintain some Common Property that, either in terms of what was consented by Council or in some way since, has been altered by persons other than the current Owners …. in return the O/C will grant each of you the exclusive use of that area in circumstances where nobody else could use it anyway, and where the O/C could reasonably be expected to have prior knowledge of the alterations originally commencing and to have put a halt to them at that time.
As a possible compromise, put a halt to searching for whatever documents Council may have or may once have seen and perhaps you and the other Owners could propose an amended SBL (one) that grants you each exclusive use privileges to the staircases / ladders and attics and requires each of you to maintain those items including associated Common Property AFTER your O/C undertakes all those repairs for which it’s responsible (and for which your collectively contributing anyway), obtains the Engineer’s certification, and obtains Council approval.
In the absence of such a compromise, I can see this indefinitely hanging over your head like the sword of Damocles!
To conclude (briefly), a shortage of funds necessary for your O/C to itself undertake these works is no justification for it to attempt to shift the costs of those to individual Owners, funds “borrowed” from the sinking fund need to be repaid by increased Levies and/or by strata finance, and in the case of your 10 Lot Plan legal fees in excess of $12,500 cannot be approved by the Executive Committee.