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Our block contains 42 units, 36 units in a tower block, and a seperate two storey block of 6 units. The property was built over 40 years ago. The tower block has one lift which is used by all 42 units. The block of 6 units use the tower lift to access their garages. The block of six has never had a lift, the top 3 units are accessed by outside stairs.
A proposal has been put to the strata committee by one of the top floor owners in the block of 6 that a lift be installed for the benefit of said 3 owners. This lift would be paid for by 4 parties, 3 top floor owners and the rest by the strata. It would seem 1 of the top floor owners is not keen to pay their share and if so the amount, approx $90000, would then be split 3 ways meaning the strata would pay more.
My question is this. This lift would be for the sole benefit of 3 units, no other owner has any reason to use this lift therefore should our strata fees be used for this purpose? All other amenities are used by all owners.
I would be grateful for any advice. Thank you in advance.
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My question is this. This lift would be for the sole benefit of 3 units, no other owner has any reason to use this lift therefore should our strata fees be used for this purpose? All other amenities are used by all owners.
That is a valid question. If the top-floor owners bought in with no lifts present and no commitment by or obligation on the scheme to provide one, then I would think this could be considered a misuse of strata funds as it only benefits a small minority of owners. It would be different if a lift had always been part of the plan but not installed or delayed for financial or other reasons.
I am not a lawyer but I would think the extent of the Owners Corp’s obligation here would be to allow the lift’s installation and operation at little or no financial cost to the rest of the scheme, while imposing conditions on its operation and maintenance on the three owners who want to have it.
As for the owner who doesn’t want to pay, the use of the lift could be restricted electronically to those who have contributed to its installation and running costs (which I realise might mean the other three couldn’t afford to install it).
It should not be forgotten that the installation of the lift will considerably increase the value of the top floor flats. If I were an owner in one of the apartments that won’t benefit from the lift’s installation, I would be digging through the legislation to find grounds for preventing the OC from paying for any of it.
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In your experience is there anyway I can get free legal advice on this matter, thank you in advance.
Many lawyers will give you 15 minutes to discuss what your options are over the phone. Call either of the two who sponsor this website and ask them what they think (don’t forget to mention Flat Chat)
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What could happen a few years down the track when the owner who didn’t pay sells out, and the new owner wants to be able to use the lift?
A reasonable fee? And don’t forget the lift group would probably have to pay the OC the difference between the cost of installing the lift and the added value on their properties.
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And don’t forget to come back and tell us how you get on.
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Frankly the strata committee should be getting legal advice on this proposal. Is the lift being built on common property, who pays the ongoing maintenance and insurance, why should the other owners pay $30,000, etc etc ?
Is one of the two owners that wants the lift on the Committee? That’s the only way I can see that this could have happened. My building has external features on some apartments and not on others (eg balconies) and everyone has to pay for upgrades to those because they improve the appearance of the entire block. But a lift doesn’t improve anything for anyone other than those living on the upper floor of that one block. I think all three apartments should pay for it as all three will benefit. But strata should not. And if one of the owners doesn’t want it, then he/she needs to get others in the building on side to vote down the project. It’s a change to common space, so would need to go to a vote.
I wonder if anyone has considered who will pay the ongoing maintenance fees for this lift. A two-story maintenance contract is likely to be $2-3K per year, indexed to CPI.
Section 132C of the Act, cover accessibility infrastructure and it is clearly predicated on there being a request by Someone who needs it. Your chairman is a chancer and someone needs to make this clear to all the owners in the building. I would be telling them that if they approve this by anything less than a 75 per cent majority, it will be challenged at NCAT, and even if they approve it by a super-majority, it will still be challenged. In other words – if the people who benefit from the lift don’t pay for it then all the strata scheme is going to get is legal bills and no lift.And you might take the opportunity at your upcoming AGM to get yourself a new chairman.132C Financing and installation of accessibility infrastructureBefore approving an accessibility infrastructure resolution, the owners corporation must consider the following—
(a) the cost and financing of the accessibility infrastructure and works including expected running and maintenance costs,
(b) who will own, install and maintain the accessibility infrastructure,
(c) the extent to which the use of the accessibility infrastructure will be available to all or some of the lots in the strata scheme,
(d) the extent to which not installing the accessibility infrastructure will cause or be likely to cause detriment to be suffered by—
(i) the person requesting the installation of the accessibility infrastructure, or
(ii) a person on behalf of whom the installation of the accessibility infrastructure is requested,
(e) whether the building can support the type of infrastructure required to provide access,
(f) other matters prescribed by the regulations.
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OK, this is NOT legal advice but it is what I would seriously consider doing if I was in your position.
- Write a polite but firmly worded letter to the chair, copied to the strata committee and the strata manager, telling them that you believe they are acting outside the letter and spirit of section 132 of the Act and requesting them to withdraw the motion for the lift immediately. Tell them that failure to do so within, say, three days, will result in you taking action at Fair Trading and NCAT.
However, you might also tell them that you will support an application to install a lift provided it doesn’t cost the owners’ corporation anything and doesn’t impact negatively on common property or the appearance of the block. - Meanwhile, call Fair Trading and ask them to advise the strata manager that they are acting outside the terms of Section 132C. There is more information HERE.
- If they don’t withdraw the motion and don’t cancel the meeting, make an application under section 232 of the Act, to resolve a dispute, that dispute being that the chair and strata manager have given wrong information to owners to install a lift that benefits the chair and only one other owner. See this page for details and instructions. This will lead to mandatory mediation.
- If the issue is unresolved at mediation, apply to NCAT for orders under section 232. See this page.
- If the plans for the lift proceed, then apply for an urgent order to prevent work going ahead. This page explains how.
- Meanwhile, you could apply to Fair Trading for disciplinary action against the strata manager for providing false advice to the strata committee and chair – all they will get is a verbal warning but it should make them pull their heads in. You’ll find out how to do that HERE.
Now, before you do any of that, I would try to get support from other owners in the building, so that the Chair can see you are not acting alone.
There is every chance the chair will try to bully you into submission by telling you that he will use strata funds to hire expensive lawyers to fight you at the tribunal but you will have to pay the costs when you lose.
The only response to that is to say that you’re not going to lose and he can then explain to owners why there has been a special levy issued (mandatory under strata law) to pay the legal bills, but which excludes you.
Now, it may not come to any of that but if the chair and strata manager can see that you are in the right and determined they may just back down.
Finally, if you are in tight financial straits, Marrickville Legal Centre receives government funding to help disadvantaged owners under the age of 65 across the state with strata problems and Seniors Rights Service helps older strata owners and residents with their legal issues.
Finally, some housekeeping. Please don’t use the “quote” button to reply to posts. We know what the issue is and hitting “quote” clutters the threads with the same material over and over. Just hit “reply”. However, if there is one sentence in a post that you want to address, highlight it, then press “quote” and that will save you having to spell it out again.
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As much as I appreciate Jimmy’s guidance, as I understand how strata law works I think there are a few things to distinguish and clarify. 1.Changes to common property If there are to be additions/changes to common property, then this needs to be agreed to at a general meeting. I don’t know if it requires a simple majority or a super majority.
No need for your disparaging remarks, especially when you go on to illustrate the gaps in your knowledge.
Changes to common property usually require a super-majority to pass a common property by-law. However, the chair in this instance is trying to invoke the provisions for an accessibility infrastructure by-law which would only require a simple majority.
The issue with that is that it seems no requirement for accessibility has been established – i.e. there is no one currently living in the apartments who NEEDS a lift to be installed. Even if there was, a chairlift on the stairs might be enough.
In short, the chairman is not being honest with the owners, probably because a lift would greatly enhance the value of his property, and for me that undermines the whole project. I would send him packing and then look at the issue of a lift for the smaller block on its own merits.
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As our strata manager seems to have given us incorrect advice re section 132c have we grounds to postpone this paper general meeting?
I think you have grounds to postpone the meeting until the strata manager provides a written explanation of how they came to the conclusion that this was an accessibility issue for the whole strata scheme. It sounds like an internal chair lift would solve any accessibility challenges.
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- Write a polite but firmly worded letter to the chair, copied to the strata committee and the strata manager, telling them that you believe they are acting outside the letter and spirit of section 132 of the Act and requesting them to withdraw the motion for the lift immediately. Tell them that failure to do so within, say, three days, will result in you taking action at Fair Trading and NCAT.