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I own and live in a unit in a building in NSW which includes a commercial property.
The owner of the commercial lot has drafted a By Law for sole use of some common property. I support the proposed by law except except that it contains one paragraph which gives the owner and tenant permission to use the property in a way which contradicts one of the requirements of the DA consent.
I am on the committee of the owners corporation so I wrote to the committee and Strata Manager to point out which section of the DA consent is being contradicted by this paragraph. But the proposed by law went out with the AGM papers containing this paragraph.
I want the by law to be passed but I do not want it to it to include changes to the DA requirements for the business.
My questions are:
Now that the draft by law is in the AGM papers is there anything I can do at the AGM or before then to have this paragraph changed or removed?
Can a DA requirement be overridden or removed by a strata by law?
Are there legal consequences for the owners corporation if a by law is passed which doesn’t meet DA requirements?
If the by law is passed and this paragraph is subsequently found to be invalid who would bear the costs of rectifying the works done by the tenants based on this by law?
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Replies
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@Miniminoral said:
Now that the draft by law is in the AGM papers is there anything I can do at the AGM or before then to have this paragraph changed or removed?Yes. You can propose an amendment which, provided it doesn’t alter the basic intent of the motion, can be passed before the by-law is voted upon
Can a DA requirement be overridden or removed by a strata by law?
No. By-laws can’t contravene superior law and planning regulations are superior law.
Are there legal consequences for the owners corporation if a by law is passed which doesn’t meet DA requirements?
The by-law can be challenged on this basis and deregistered.
If the by law is passed and this paragraph is subsequently found to be invalid who would bear the costs of rectifying the works done by the tenants based on this by law?
The owners corp becomes liable for any costs in rescinding and redrafting the defective by-law. You could argue that committee members who supported the defective by-law after being told it was defective had not acted in good faith and so should pay some of the costs. But more likely the costs would fall to the Owners Corp and the benefitting lot owners if they have been informed that their by-law is defective and ignored the advice.
As it should be a poll vote, you will know who voted for and against the defective by-law so then you can try to get Tribunal orders so that only the people who voted for it, in full knowledge that it was defective, have to pay for fixing it.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
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