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Topic
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The OC of our strata plan granted exclusive use of common property to two lot owners allowing them to build a lift on either side of our building (2 lifts in total). They rent the common property (and air space) from the OC and paid for the construction of the lifts themselves. There is a special Bi-law they had drawn up covering this.
At an AGM, it was indicated that they would cover the cost of the build of the lifts and then allow other owners to ‘buy in’ to them if they wished to do so.
They have set the ‘buy in’ amount themselves, without consultation with the OC or even the EC. None of these conditions are mentioned in the Bi-law, the Bi-law doesn’t indicate who has the right to set the buy in amount or the condition of buying in.
There is a tenant wanting to buy in at the figure they have proposed however they are refusing to allow them to do so until everyone else agrees to buy in also. They want to charge this one person 1/3 of the construction amount (but the figure they have supplied is above a third of the cost).
Do they have the right to do this? Can the special bi-law they have be repealed or altered?
What are our options?
Thanks for your help
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On the assumption that the vote to create the Special By-Law (SBL) was by a minimum of 75% of those present at the AGM being in favour, and it’s been since Registered with NSW Land & Property Information (incorporating the old Land Titles Office), then the only means to amend it is by way of another 75% vote in favour (of doing that) at another General Meeting provided the current beneficiaries of it agree in writing to that amendment.
Conversely, if the SBL didn’t achieve that minimum 75% majority, and/or it’s not Registered, then it doesn’t exist and those two (2) Owners have illegally changed and/or added to the Common Property and unless they agree to reasonable usage terms by other Owners, your Owners Corporation (O/C) could require them to remove their lifts.
Sounds to me like your O/C may have obtained poor legal advice in the first instance.
@pend1lis said:
Otherwise it appears to By-laws registered and drastically different from those that were voted on.Not sure what you intended to say there.
If the registered by-law differs from the by-law in the agenda for the general meeting, and there is no record of an amendment being agreed, then it should be challenged at NCAT where an adjudicator can rule a by-law invalid.
If a by-law hasn’t been registered within two years, it is not valid (see section 48 below). If it has been registered within that time, you have to go to NCAT to have it repealed.
48 What steps must an owners corporation take to make an amendment effective?
(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:
(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900, in the Registrar-General’s office, and
(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.
(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.
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@pend1lis said:“On a side note: the legal advice obtained by our OC was from the same lawyers who drafted the special by-law for the 2 owners to obtain exclusive use of the common property. “
I have a problem with lawyers acting for the applicant drafting bylaws. Quite often they seem to be suburban solicitors with little or no strata experience, and in any case they are not necessarily acting in the best interests of the Owners Corporation, as there is often a clear conflict of interest situation between the Owner who wants the work done as quickly and cheaply as possible, and the Owners Corporation who wants to ensure that it is done with minimal damage and disruption to its common property.
The bylaws they draft as put to a General Meeting may not protect or indemnify the owners corporation against shoddy workmanship, cover all insurance aspects, or make the applicant fully responsible for ongoing maintenance of whatever attachment to common property has been approved.
No one (with any experience or sense) would rely on the vendor’s solicitor or engage them to also act on their behalf when purchasing a property, so I’m at a loss to understand why it seems common practice for an owners corporation to accept bylaws drafted by the applicant’s lawyer.
pend1lis – by way of a summary of everything that’s been said so far, you have a problem, and that’s an understatement!
I’ve drawn that somewhat simplistic observation on the basis of your advice that:
- The Special By-Law (SBL) that has been Registered grants exclusive use, and a SBL of that type cannot be easily amended or revoked without the prior written consent of those two (2) Owners as its beneficiaries. I say “easily” because in the absence of those Owners’ prior consent, the only other option is for you or the Owners Corporation (O/C) to seek Orders to do that under the provisions of Sect 158(b) of the NSW Strata Schemes Management Act (SCMA), and….
- The SBL that hasn’t been Registered is invalid/ illegal/unenforceable, but as soon as you or the O/C takes any action to amend or revoke it, you can bet that it will be quickly lodged with NSW Land & Property Information for Registration, and……
- The fact that the wording of neither SBL is in the terms put to and Specially Resolved at the General Meeting, and…..
- The fact that even with the Owners’ prior consent, in order to amended or revoke those SBLs the O/C will still have to convene a General Meeting, where the Agenda will need to include the proposed new or amended SBLs, and a vote by ≥75% of those in attendance, including proxies, will be required to pass a Special Resolution that brings into being those new or amended documents, where that percentage is determined from the lot units of entitlement (UOE) of those voting and the aggregate UOE of all those in attendance; again including any proxies.
I assume that you’re not the only Owner who can now see the problems with all of the above, so in that case I’d firstly suggest that you do some lobbying if only to ensure that like-minded Owners are on-side, and that’s particularly so for the Secretary who, unless you have >25% of Owners by UOE on-side to petition for a General Meeting, will themselves have to convene that Meeting in order to revoke the existing SBLs, and to obtain an agreement by a simple majority vote to obtain some independent legal advice on the drafting of new SBLs from someone who’s strata-savvy.
When all that’s done, there will need to yet another General Meeting to vote on the new SBLs, unless of course there’s an allocated budget for legal advice and the Executive Committee is prepared to obtain that in advance of the first General Meeting so that everything can be wrapped up at that time.
As I said at the outset, you have a problem, but in my opinion your O/C cannot leave it unresolved as apart from the fact that what’s Registered and presumably what’s ready for Registration is “drastically different” from what was resolved at the past General Meeting, the issue with charging for access to the lifts is just the tip of the iceberg in terms of what’s yet to come!
Your O/C needs some strata-savvy legal advice with all this, so do a bit of searching on the ‘net and perhaps also contact one of FlatChat’s sponsors HERE.
Hi Whale,
Similarly my OC built on my private property without any written consent or statutory approval claiming it was a previous owner. What would you advise I do? I have used a Strata Lawyer in the past, but all they could recommend is NCAT and their processes appear to be easily taken advantage of!
If you’re in NSW and wish to take on my case for court, please pm me?
Sorry, I can’t do that as I’m not a Lawyer, but if you can provide some specific information about the situation I’m sure you’ll get some practical solutions to your predicament from FlatChatters who’ve been there before!
Always assumed you had a legal background Whale!
Basically, my OC arranged to have a neighbours air conditioner unit installed on my balcony whilst My wife and I were at work without so much as a mention in the meeting minutes. This rusted on member claimed there was no where else to put the equipment, including the balcony of the unit it was serving being my direct neighbour, and that they had an obligation as per the Thoo decision.
The Adjudicator sided with my OCs legal representative who claimed it was a s62 issue regarding maintaining common property but nothing was broken!?!
Either way, it was plain to see that if you told an NCAT member the sky is purple a certain ammount of times, they’ll agree! Although this occurred just before CTTT became NCAT.
If you were in my position what would you have ‘argued’ as it seems an impossible breach of s62 is enough to enter onto someone’s balcony while they are out and build away. I’m suprised my dog just let them build away too!
My scheme is in Paddington, but we have an onsite caretaker who sleeps at the front door all day and who would give complete strangers access. I don’t blame him, but rather the EC mber who arranged access between balconies… innocent tradies could have fallen to their death if anything went wrong!!
isydowner – not sure whether to take that Lawyer thing as a compliment or not, although I was once coerced into working over a couple of years with a team of Lawyers who were drafting some state environmental legislation, my role was to merely to ensure that their legalese reflected both the intent of and the science behind the document. Maybe some of their phraseology stuck in my head; anyway, enough of that!
Your problem is really a strange one, but as the Owners Corporation (O/C) argued that the replacement of the air conditioner was done under Sect 62, I assume that it’s Common Property and that your balcony is part of your lot; right?
IF that’s the case, and for the time being ignoring the fact that the O/C placed the air conditioner on your balcony and accessed your lot, I’d have argued that relocating it anywhere comprises a change or alteration to or the erection of a new structure on the Common Property of the Plan, that should have been approved in advance at a General Meeting under the provisions of Sect 65(A).
Before I and others get into your options to address the problem, could you please come back with a little more information, including on the argument that you took to the CTTT, whether my assumptions about the ownership of the air conditioner and your balcony are correct, how and in what forum the works were approved, and (if you know) why the new air conditioner wasn’t positioned where the original one was?
The oc claimed the equipment belongs to another lot owner, but they (oc) arranged the installation when I was out! Sect 62 was only mentioned as a reason to allow it to stay on my balcony as it was the only place (private property) it could be located.
I argued that it was an unauthorised upgrade paid for by the oc, which was not required until now (scheme was registered in 2002).
The works were approved by the ex-commies (by paper, unsure what this meant) who ordered the works to be carried out to my balcony (during work hours) without a resolution at a general meeting or my permission.
The CTTT adjudicator said written permission was not needed under Sect 62 or Sect 65 to enter onto and install the equipment as it was part of the ocs maintenance requirements. I let it go as the CTTT seemed to be more interested in not making an order to relocate it, but lately it has been acting up with leaking, loud banging noises. The dog was also burned by it a few times, as well as my wife’s friend who sometimes smokes out there (terrible habit)!
I spoke to a neighbour / other owner who argued that I costed them money to install it in the first place… I am lucky they said! I do need to get it all cleared up before I sell though, it might devalue my property considerably!
I delayed replying for a couple of days just in case somebody else had some suggested solutions to your problem, because I only have one!
On the basis that the information you’ve provided is correct, and with reference to the NSW Strata Schemes Management Act, the Owners Corporation:
- Should not have entered your property without your prior permission [see Sect 65(4)]
- Should not have replaced an air conditioner that was the private property of an Owner
- Should not have attached that air conditioner to the Common Property (floor & walls) of your balcony without the prior consent of ≥75% of Owners present at a General Meeting [see Sect 65(A)], and…
- As the CTTT made an incorrect ruling in my opinion…..
I suggest that you immediately write to your neighbour (the Owner of the air conditioner) with a copy the Secretary of your Executive Committee stating that the Owners Corporation’s installation of the air conditioner on your balcony was both an inappropriate use of its funds and contrary to the provisions of Sect’s 65(4) and 65(A) of the Act, and to insist that they make proper arrangements with you to enter your property for the purposes of removing that air conditioner, and that if that’s not done within say 7 days, you will make those arrangements yourself and have their air conditioner returned to them (i.e. your neighbour), and seek a reimbursement of your costs to do that from them, and in default, from the Owners Corporation who improperly installed it.
Again, if everything that you’ve advised is correct and that nothing of relevance has been omitted, you should be prepared to take them on by having the air conditioner removed. The worst that could happen is that you’re out-of-pocket!
Thanks Whale, it was well over a year ago now… so probably a little late but your advice makes perfect sense.
What about the original CTTT decision… does that not encourage them to sue me if I deprive a lot owner of ‘clean air’ or something?
My concern was selling the property encumbered with something that should not be there… how can I explain to a prospective buyer that someone else’s air-conditioning unit is on my balcony? It is screwed into the ground and balcony wall (inside) so it’s not visible to passers-by, but now seems to be falling apart and making loud banging noises… a bit like Chitty-chitty bang-bang!
I will write a letter to my neighbour as you advise, but don’t think they own the air conditioner as it’s not ‘within’ their lot property. I can send a copy to the Strata Manager (delegated as Secretary) for the attension of the Owners Corporation and add a condition for 7 days and see what happens.
I’ll get back to you next week once that’s all done. The Owners Corporation did install it but I was more disturbed it was all done while we were at work. It was more alarming that a Tradie went on someone else’s property without permission too!
I plan on upgrading my dog to a more vicious one in the future too!
Thanks Whale for your help; fingers crossed it works or gets the desired result… I don’t want to waste any more time with the Tribunal as they didn’t even consider the implications of leaving it on my balcony.
If it’s falling apart and it’s common property then you can take a Section 62 against the owners corp demanding that they at least repair it.
But Whale is right and I’m not sure that it’s too late to get this ludicrous situation dealt with. CTTT was a konga line of clowns and NCAT doesn’t seem much better. It’s time they had a clear-out from top to bottom. A kid with a computer could give you a better answer than some of these jumped-up wannabe Judge Judys
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isydowner – Jimmy T is right by describing this whole situation as ludicrous!
There are a few things that still intrigue me about all this, so could you please clarify the following for me:
- Did all Units in your Plan have an air conditioner installed as part of the building’s construction, or were some installed afterwards?
- We’re talking about a split-system air conditioner, right?
- Does your balcony adjoin your neighbour’s balcony?
- Is the balcony shown as part of your Unit on the Strata Title Plan?
- Your neighbour’s original air conditioner failed, right?
- If there was room for the original air conditioner on your neighbour’s balcony, why was there insufficient room for its replacement?
- You mention that the works were approved “by paper”, and I assume you meant by the Executive Committee. Are there any minutes of that Meeting?
- Has there been an AGM since the installation of the replacement air conditioner, and if so, where was the expenditure on that purchase and installation shown?
- Your argument at the CTTT seems to have been about people accessing your property without permission, but did you not argue about the Owners Corporation locating the air conditioner on your balcony?
- What if anything did the adjudicator say about your neighbour’s air conditioner being located on your balcony?
Re the likely reaction to the suggested letter by your Owners Corporation (O/C) and your neighbour – the O/C purchased and installed the air conditioner (albeit improperly) but it services your neighbour’s Unit, and that’s why I suggested that you first give both of them the opportunity to remove the component/s that are located on your balcony, and that if neither does, you do so and return those components to, or at least make them available for collection by, your neighbour as the person who’s Unit it currently services.
Hi Whale & Jimmy T, I’ll try my best to answer your questions in the same order;
1. No units had air equipment installed at registration and the plan still doesn’t indicate it, maybe because I wouldn’t approve it?
2. Yes, system inside and condenser on my balcony, 2 on my balcony now to be precise.
3. A gap of about 500mm separates both and a large drop to the pavement too.
4. Yes, it’s part of my lot and outlines the entire balcony to the 500mm edge.
5. I dunno if they every had one, or if their complete system was located indoors.
6. I guess the drainage was already set up on mine and they (OC) didn’t want to pay for more, but I believe the drainage for mine is being used for twice the amount of whatever comes out / off.
7. It was approved by paper, but the minutes just say resolved. The vague motion was to install air conditioning equipment and drainage to serve lot 25, but nothing more. I believe the owner might have some sway with a committee member as they also had a bollard installed free on their parking space with no mention of costs.
8. Yes, 2 now and there is no specific mention but it appears to be spent under ‘maintenance’ as did the bollard. I know our building manage has a monthly fund of $10,000 that doesn’t get itemised if that helps?
9. I argued both, that no permission was sought and they went ahead and did it when we were at work. The decision seemed to be made so the Adjudicator didn’t have to make an order and my OC’s legal rep said it was done to protect my balcony, even though it makes thing worse. No that it’s spluttering and banging, I don’t want them doing it all over again.
10. The adjudicator didn’t say anything about that particularly if it was oc property or my neighbours but accepted that it was installed to provide service to another unit saying there was no evidence to suggest that it could only be installed on my balcony, but allowed it to stay there. I think that was some sort of legal way to say to me that I didn’t provide an ‘alternative’ place or report to confirm it could and should be located elsewhere. A report like that would have been expensive.
I agree the Adjudicator appeared lazy and this was clearly wrong, and when I asked for the decision to be published they told me they wouldn’t as it was not the kind of decision the NSW public would find useful. I disagreed, but then again I found it very disrespectful of my rights, but being the wronged person here I may be biased.
One thing was I called a Strata Lawyer in Balmain who told me not to appeal as the tribunal wouldn’t change its mind even though they were clearly wrong. She asked me instead to take it to court for about $40,000 which we couldn’t spare. I guess the end result was our balcony area was effectively stolen with nothing we could do.
My biggest gripe with the whole thing is that it cost me in the end through my levies! I’ll look for the original decision for you and scan it in, sorry I can’t provide much else but that’s exactly how it happened and I assume it’s happened that way in other schemes around NSW. I seen a similar decision in VCAT which protected the owner of the land (Strata Title) but NCAT seem completely unfair in comparison and chose to ignore case law precedents I included, under my wife’s advise.
I’m thinking of selling and that’s the reason it worries me now as when the property will be shown might be affected by tradies on my balcony or spluttering and banging from a lack of maintenance… Which I have had it looked at with mine as part of our 6 months check up. My air guy says its a cheaper non-compliant version of mine and it was overused in comparison.
Thanks for your responses guys, am off to bring my dog for his morning walk. Sunday is always a fun morning with the Kings Cross stragglers home!