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Hello Jimmy
An owner has acted on a draft By-Law that was issued in error by Strata Manager. He has relied on that to install a hot water tank on common property regardless of being told twice that the Committee had unanimously agreed that common property was not to be used and that the tank had to be installed within his lot. What action can the Committee take to rectify the situation?
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Kera – As you probably know, only (special) By-Laws that are Registered on your Plan’s Strata Title are legal, so right now the Owner who’s relied on a draft of that document to add his hotwater heater tank to the Common Property is (in NSW) in breach of Sect 65A of the Strata Schemes Management Act (the Act).
Problem is that a breach of the Act is not necessarily a breach of a By-Law, but presumably the installation of the hotwater tank has in some way damaged or defaced the Common Property, perhaps to the wall of the building by the use of screws or by placing pipework/conduit through the brickwork (?).
If that’s the case, and as the Executive Committee (E/C) has previously advised the Owner about where his hotwater tank should be installed, the most expedient action would be for the E/C to quickly convene a meeting in order to resolve that the Owners Corporation (via its Strata Manager if so delegated) issues the Owner with a “Notice to Comply” with By-Law 5, which among other things states that “an owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation“.
Make sure that all Owners receive the Meeting Agenda at least 3 days in advance, as that alone may give rise to some positive reaction by the Owner concerned and perhaps gain some support by others for the E/C’s proposed actions.
By all means have a look through the Model By-Laws for one that may be more applicable, but in all cases the Notice must require compliance (at para 6) by the Owner removing his hotwater heater tank, and by restoring the Common Property to its original state.
In order to cover both bases, the E/C Meeting Agenda should include an Item to resolve that it concurrently writes to the Owner to advise him that as he’s additionally acted contrary to Sect 65A of the Act, if his hotwater heater tank is not removed etc in accordance with the Notice, then the Owners Corporation will immediately apply for a $550 penalty to be imposed on him by application to the NSW Civil and Administrative Tribunal, together with for Orders allowing it to remove his hotwater heater tank and to restore its Common Property, all at his expense.
Kera – hopefully that Special By-Law was properly drafted to among other things make Owners responsible for the maintenance, repair, and replacement of these externally installed hotwater heater tanks, and that it was passed as a Special Resolution at a General Meeting of the Owners Corporation (not at an E/C Meeting) where at least 75% of those voting did so in favour.
Of course that SBL is still not legal unless and until its Registered on your Plan’s Strata Title by NSW Land & Property Information.
So was it an EC meeting or a general meeting, as Whale highlighted in his post?
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