Balcony enclosure

1. On the face of it, there doesn’t seem to be any reason why the EC would object to your application.  The other two enclosures having been enclosed with approval would likely be relevant, if approval for yours were refused and you had to take it further.

2. The EC/OC probably should have required by-laws for the other two balconies, but that isn’t necessarily relevant to you.  It is prudent to require a by-law in these type of circumstances, and in those circumstances the person carrying out the works is usually required to pay for the by-law.  The works aren’t benefitting the other owners, so therefore you should pay for the exclusive use by-law which presumably will provide that you are responsible for ongoing maintenance etc.  Enclosing the balcony benefits you, it doesn’t benefit anyone else.

3. How long is a piece of string?  I would use the frequency of the EC meetings as a guide.  Provided you give them all the necessary information/specifications etc., if there is no progress after a couple of months then I would start asking why.

More generally, you might want to suggest that an exclusive use by-law be drawn up covering all three of the enclosed balconies, i.e. yours and the other two previously approved.  You say the EC has changed, so obviously their approach has changed, and they are doing the right thing.  It could be worth pointing out that this gives them the opportunity to be consistent across the board, because otherwise the OC will be responsible for any maintenance of those other two balconies.  If they agree, then the cost of the by-laws could be shared between the three owners.

OP submit a motion to the EC for the upcomming EC meeting asking that all owners that have have made alterations without a relevant byalw must within 2 weeks show that they intend to submit a relevant bylaw within the following 4 weeks covering said alterations.

Any owner that dosn’t comply and has made alterations the EC will have a bylaw drawn up at the owners cost and voted on at the next general meeting.

I have been informed (from another forum) that the EC can get a bylaw written to address these situations and bill the offending owner for the cost of having the bylaw written.

This seems to me to be an excellect soloution to the strata being lumbered with ongoing maintenace of illegal work.

If they decline to do this I consider that you have every reason to go ahead with your alterations without having a bylaw written.

If they agree to this just wait untill the bylaws are submitted and then you submit another bylaw (coppied from one of your 2 similar alterations) adapted for your unit.

I don’t think the advice offered here is entirely reliable

@kiwipaul said:

OP …

OP? again, easy on the initials, please

… submit a motion to the EC for the upcomming EC meeting asking that all owners that have have made alterations without a relevant byalw must within 2 weeks show that they intend to submit a relevant bylaw within the following 4 weeks covering said alterations.

You are asking the EC to compel owners to submit a by-law and the EC isn’t entitled to do that.

Any owner that dosn’t comply and has made alterations the EC will have a bylaw drawn up at the owners cost and voted on at the next general meeting.

This would require a by-law to either be in place or to be passed to make this enforceable. Again, the EC can’t demand this unless a by-law is already in place.

I have been informed (from another forum) that the EC can get a bylaw written to address these situations and bill the offending owner for the cost of having the bylaw written.

I don’t think this is true and I would take this more seriously if you were quoting a strata lawyer rather than ‘another forum’ where opinions are unlikely to be any more reliable that those expressed here.  This one, though, sounds like nonsense to me.

If they decline to do this I consider that you have every reason to go ahead with your alterations without having a bylaw written.

No, they don’t! Two or even three wrongs don’t make a right.  What has clearly happened is that Adammark has come in on the other side of a transition from a laissez faire EC to one that wants to do the right thing (and save themselves the expense of fixing up unauthorised alterations). 

What happened in the past has little or no bearing on whether or not alterations comply with by-laws and strata laws.  You may feel morally justified in doing the wrong thing just as you may feel aggrieved when you get a CTTT order telling you to scrap all your expensive alterations and reinstate common property to its previous state.

Prior illegal work doesn’t give you the right to go ahead with your own unauthorised work.

There are two separate issues here.  The first is Adammark’s wish to enclose their balcony.  Unlike in previous years, they have a EC that’s doing things by the book, so they need to propose an exclusive use by-law, taking responsibility for their alterations and paying for the cost of having such a by-law passed (because they are the sole beneficiaries of it).

The other balconies are a separate issue and something that the EC should be pursuing at the same time – although they don’t have to.  However, what they could be saying to owners is either come in on this by-law (as another poster suggested) and accept responsibility for your alterations.

I also have to say that if Adammark is waiting for the situation with the other balconies to be resolved before they make a move, they won’t be calling in the builders any time soon.

Finally, and completely separately, the EC should be drafting their own by-law that says that alterations to common property can’t be made without the express approval of the Owners Corp but if any are done without approval, then the current owner and subsequent owners are responsible for all repairs and maintenance.

My advice to Adammark is DON’T over-complicate this with other issues about who did what in the past.  Do the right thing for your own plans and let others worry about past mistakes.

@adammark said:

It seems this current EC is taking a far more dramatic approach to the EC that approved the previous enclosures.

This happens – many new owners are much more savvy about their responsibilities than previous generations.  Your EC has probably discovered that if they don’t regulate what owners do to Common Property, they could end up paying for it if it all goes pear-shaped.

Are these restrictions and requests permissable. Especially (regarding the windows) that we have no visual exposure into our balcony?

Are these restrictions permissable?  Yes – because you are changing common property.  Are they reasonable?  That’s a whole other issue.  But don’t forget that the EC doesn’t have to allow you to do anything – the easiest thing is for them to say no and leave it at that.  Compromise is the key.

Lastly, their requirement of obtaining a by-law by us was linked to it being through a solicitor of their choosing. Surely not?!?! Do i have the EC from hell?!

Spend a bit more time on this website and you’ll see your EC is far from the worst in the world.

They have a duty to protect all the owners (including you) and their commonly held assets against anything that might be to their collective detriment, now or in the future. They also have an example of what happens when there are no proper restrictions (the other balconies and future battles over who is responsible for maintaining the alterations).

But let’s get down to brass tacks. You have four choices here: 

1. Abandon your plans

2. Prepare for a long, exhausting and expensive fight in the CTTT and possibly the courts, the outcome of which is entirely unpredictable

3.  Go ahead and do the work and face the consequences (see option 2)

4. Sit down with the EC and/or strata manger and show a willingness to play by the rules and be a good neighbour. Work out some compromises and if necessary go to voluntary mediation (it’s free through the Community Justice Centre).  Forget what was done in the past – that was then, this is now.

This doesn’t have to be a fight.  Remember – you don’t have the right to change common property but your EC has a duty to protect it. 

@kiwipaul said:
OP = Origional poster

I don’t consider it fair and equitable that the EC can suddenly turn around and demand all these condition on alterations when previously it has turned ablind eye UNLESS it address these previous violations first.

It may not be fair but it’s the law.  We shouldn’t be encouraging people to ignore state laws and/or the strata act and spend thousands of dollars on illegal renovations.  They are the ones who have to live with the consequences of breaking the law … not us.

Have any of these violations been done by people on the committee if so that makes the situation even worse (corruption).

There’s no suggestion of that – it’s quiite clearly just a change of EC and the new people are trying to obey strata law where the previous ones didn’t (probably because they didn’t even realise there were any laws).

I agree 2 wrongs don’t make a right but the EC needs to address the original alterations rather than ignoring them.

The EC doesn’t need to do anything.  There is no clear compulsion  for them to enforce their by-laws – however the by-laws are there if they choose to enforce them. In any case, surely the first step in curbing rogue renovations is to control future work then deal with what happened in the past

The OP could claim precedence if he goes ahead without a bylaw unless they have addressed the original alterations.

Adammark can claim precedence where?  The CTTT?  The Supreme Court?  AS far as I know there is no legal precedence in strata law in NSW – all cases are supposed to be considered on their individual merits.

Even if the OP spends thousands on doing what the EC requests their is still the possibility that he will fail to obtain a 75% majority to pass the new bylaw for his enclosure.

Adammark would be very unwise, then, to spend a cent they don’t have to until they have approval – which is exactly what you are proposing they do.  You get the approval first and then you do the work.

Yes they will have to spend money on lawyers – that’s why I suggested sitting down and reaching agreement with the EC first rather than pursuing some BS quasi-legal confrontational approach which is doomed to failure

It has to apply the rules fairly to everyone and it cannot discriminate.

I agree with the philosophy but where does it say that in strata law? Also, this EC would say it was applying the rules fairly (and legally) – the decisions of previous ECs have nothing to do with them and they can’t be held to ransom over bad or negligent decisions in the past.

As to the opinion from the other forum he makes a good case and he has not been contradicted by anyone on that forum.

OK, then it must be true … or maybe it’s just a forum where people state opinions as fact and there’s nobody who knows what they’re talking about who even bothers to read it.  I’ve been writing about strata for 10 years now and I have never heard of individual owners being compelled to pay for the creation of a by-law that has been drafted specifically to stop them doing what they wanted.

How about a sol(icitor???) on here commenting on this option

… submit a motion to the EC for the upcoming EC meeting asking that all owners that have have made alterations without a relevant bylaw must within 2 weeks show that they intend to submit a relevant bylaw within the following 4 weeks covering said alterations.

Be interested to here whether it’s legal or not but it would be a solution to unauthorized alterations which presently doesn’t exist in NSW.

It’s not legal.  The EC doesn’t have the right to issue edicts or establish conditions like that unless there is a by-law to that effect. The solution is to pass a by-law that makes owners responsible for the unauthorised changes to common property that are carried out in their homes. No by-law, no authority – it’s as simple as that.

KP, I hate to sound harsh and we value your opinion – especially the Queensland perspective that you bring to the Forum – but regardless of how unfair the situation seems it’s irresponsible to advise people to ignore the legitimate requests of their Executive Committees just because someone else got away with it in the past.

That doesn’t wash in NSW and, I suspect, wouldn’t get you very far in Queensland either. 

I agree entirely with what ScotlandX says below.

My use of the word “illegal” in my previous posting was a bit off the mark. But it seems that that the previous EC gave approval for changes to common property without the sanction of the Owners Corp at a General meeting or the insurance of an exclusive use by-law.

Whatever the case, as ScotlandX suggests, the best thing to do is move on and deal with the situation as it exists now. Executive Committees change every year and you can’t really fault the incumbents for wanting to run the building according to strata law.

If I can butt in on a couple of issues….

The Special By-Law should not be exclusive to your proposal, but rather should apply to all Owners – including to those who have already enclosed their balconies (ideally) and to all those who may wish to do so in future.

For the above reason, and additionally because the Strata Regulators (the Consumer Trader & Tenancy Tribunal in NSW) look favourably upon By-Laws that are advisory rather than prescriptive and/or prohibitive, whatever wording your Executive Committee decides upon shouldn’t prescribe what type of windows must be fitted, but instead speak to features such as aluminium, non-reflective, consistent colouring, in keeping with the facade of the Building etc etc. Like what happens if a product that’s available now, is unavailable next time an Owner needs to comply with a prescriptive condition of the Special By-Law?

IF your Committee (or a Member) has/is a reasonable scribe who can avoid legalese and ambiguity, then there’s no reason why the wording of the Special By-Law cannot be prepared and agreed “in-house”, and be submitted for Registration to Land & Property Information using Form 15CB (in NSW) for the princely sum of $102.00.

adammark I fundamentally disagree with Jimmy on one important aspect and that is that an adjudicator WILL take into account previous decisions of the EC.

I was unable to find an adjudicators ruling that supports my case in regards to improvements as their are very few ruling listed online in NSW.

I was able to find this

https://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCTTT/2008/928.html?stem=0&synonyms=0&query=dog%20and%20strata

It’s regarding the pet bylaw but it clearly states that the adjudicator DOES take into account previous decisions of the EC and action or residents, and dosn’t just base his decision on the actual bylaw in isolation.

If you can find a ruling that supports your case you are virtually home and dried.

My opinion is they would have to show they have enforced this new policy on all requests since they took power to have any chance of making you comply as well.