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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 Can the special bi-law they have be repealed or altered?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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Replies
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Thanks for all that additional information, which by the way further substantiates Jimmy T’s comment that the whole situation from the Owners Corporation paying for a split-system air conditioner to benefit just one Owner, to it installing that on your balcony is just plain ludicrous!
As you did earlier obtain a legal opinion, you should strengthen your letter to read something like:
Please be advised that on the on basis of legal advice, I advise both you and the Owners Corporation that the Executive Committee’s decision to purchase and install a split system air conditioner to service Lot X and to install the outdoor component of that on my balcony was incorrectly made, and not in accordance with the requirements of the NSW Strata Schemes Management Act (1996), and particularly with the provisions of its Section 65(A).
Therefore, as an alternative to me applying to the NSW Civil and Administrative Tribunal to have the Adjudicator’s ruling set aside and also to seek Orders to have the Owner of Lot X, and in default the Owners Corporation, restore the Common Property to its original state by removing the aforementioned air conditioning system and its ancillary pipework (the “works”), I am allowing seven (7) days from the date of this letter for the Owner of Lot X and/or the Owners Corporation to make suitable arrangements with me to enter my property for the purpose of undertaking those works.
If those arrangements are not made within the timeframe prescribed, then I shall concurrently make arrangements for the works to be undertaken and for all items once removed to be properly secured and made available for collection by the Owner of Lot X or by a member of the Executive Committee, and make the necessary Applications to the NSW Civil and Administrative Tribunal as indicated and including a ruling that a reimbursement of my costs to have the works undertaken be made in equal portions by the Owner of Lot X and the current Members of the Executive Committee.
Remember though, as the above is what I would include in a letter, just make sure that you are totally comfortable with whatever you may yourself write.
Do you not think they would claim that I interfered with common property and maybe threaten legal action against me?
The Adjudicator asserted it is common property, even though it was built on lot property… and by requesting the executive committee and neighboring lot owner cover the costs, they are more likely to use further owners corporations money (my fees too) against me to defend an NCAT application!
The most ludicrous thing CTTT did was made the order to allow it to stay on my balcony. Everything else was just brushed aside making the whole situation worse. It’s like telling an owners corporation it’s ok to do whatever you like even if it is illegal, oppressive and against the ideas of strata / torrens title!
I’ll draft a letter using what you have formulated and add in the little extra bits for you to consider. It’s worth a go but I cannot help but think they will ignore it as they have already received a big green light by the CTTT to steal my balcony… and it’s never been used by anyone other than the dog since. It’s not only uncomfortable to use now, but a total loss of amenity. Every time I see the neighbours partying on their balcony or when we go out to pet the dog, they turn on their air conditioner system as it splutters and bangs loudly… I can totally understand why that poor man in Sydney’s West brought a firearm to a strata meeting, he was bound to be putting up with the same kind of boofhead games-playing!
Sorry for the emotive response, but it really gets to me when people like your self see the obvious wrongs occurring here and the Tribunal just turns a blind eye. Hopefully the new Fair Trading Minister Mr Victor Dominello see the impact a lax Tribunal and weak strata laws have on NSW residents. I tend to believe VCAT are much fairer and actively try to encourage compliance with the law.
Whale & Jimmy T, I thank you for all your advice with this matter… hopefully your letter achieves something truly positive.
If you read my suggested letter carefully, you’ll see that in the absence of a positive response by your neighbour and the Owners Corporation you’re only making arrangements to have the air conditioner removed and to make an Application to the NCAT.
Whether you actually do that depends upon the response that you receive and how comfortable you are with taking the next step if it comes to that, because as I’ve said already it’s YOUR letter so don’t write and issue anything that you’re not happy with!
Thanks Whale, sounds like the right thing to do. I’ll get back to you once I gat a response.
Cheers,
Thomas