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Topic
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An owners corporation proposes to take responsibility for the repair, painting and replacement of some existing privately owned pergolas in the complex by the passage of a by-law using s65A of the SSMA “….for the purpose of improving or enhancing the common property”.
s65A(1)(a) of the SSMA refers to making additions to the common property. Any views on whether such action would be a valid addition to the common property?
s65A(1)(b) of the SSMA refers to the alteration of the common property. I believe that this section refers to the alteration of something which is already common property and not altering the common property by adding something to it. Any views on this thought?
s65(1)(c) of the SSMA refers to the erection of a new structure on common property and this could hardly be relevant?
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Replies
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Your committee does seem to be going about this the wrong way.
Section 63 allows the Owners Corp to take over maintenance and repair of personal property. Otherwise, it could just be a transfer of ownership agreement between the lot owners and the owners corp which might then be subject to NCAT orders under sections 142 or 143 (see below).
However, I am curious to know why the owners corp is prepared to take over maintenance of property that can only be used by individual lot owners or their tenants. If it is a question of the lot owners not maintaining the pergolas, then the OC just needs to pass a by-law requiring all lot owners to maintain and repair structures that can be seen from outside the lot.
If it is a question of lot owners trying to shift their personal maintenance and repair bills to the OC, then you might want to pursue orders under Section 142(b) of the Act.
142 Order relating to personal property acquired or to be acquired by owners corporation
(1) An Adjudicator may make one of the following orders if the Adjudicator considers that an acquisition, or a proposed acquisition, by an owners corporation of personal property is unreasonable:
(a) that the personal property acquired be sold or otherwise disposed of by the owners corporation within a specified time,
(b) that the personal property not be acquired.
(2) An application for an order under this section may be made only by an owner.
143 Order requiring owners corporation to acquire personal property
(1) An Adjudicator may order an owners corporation to acquire personal property if the Adjudicator considers that the owners corporation has unreasonably refused to acquire the personal property.
(2) An application for an order under this section may be made only by an owner.
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PJ – whilst an Owners Corporation can effectively “transfer” (by license or by an exclusive use privilege) a component of its common property to an owner, and in the latter case can, with an owner’s concurrence, additionally transfer its maintenance and repair responsibilities for that property to that owner by way of a special by-law, I don’t believe that the opposite can apply whereby an owner’s property is transferred to an Owners Corporation.
In the absence of a strata sub-division the original Strata Title Plan does, as you correctly state, define areas of common property and lot property, and whilst an Owners Corporation may resolve by a simple majority vote at a General Meeting to maintain and repair an item of lot property, that item nonetheless remains lot property (corrected 27/05).
Whilst I can see some rationale for such a “transfer” of maintenance and repair responsibilities (e.g. an owner’s self-interest), I’m intrigued by the terms of the special by-law that enabled that and how it came about that owners passed the requisite special resolution; can you enlighten me?
PJ – thanks for your response, and YES the end of my second para (post #2) should have read “remains lot property”; now corrected, sorry.
You’re also correct in your assessment that a special by-law resolved by your Owners Corporation in this situation is subordinate to the provisions of the Strata Schemes Development Act, and cannot impose upon the Owners Corporation any responsibility for maintenance of lot property unless that work is done under the terms Sect 63 of the Strata Schemes Management Act (SSMA); that is at cost to the lot owners concerned.
When you state that the motion to register the special by-law was decided by “a majority” of those present and entitled to vote at the applicable General Meeting, was that as required ≥75% in favour by unit entitlement?
If not, then that would give affected owners further grounds to seek Orders invalidating the resolution under Sect 153 of the SSMA.
PJ – I’m now becoming confused by you “linking” your earlier post on the subject of a specific special by-law (SBL) HERE to this one about how “pergolas” as the subject of that proposed SBL is defined under the Strata Schemes Management Act, and by you now introducing another (irrelevant) piece of Legislation.
My interpretation is that in the context of a Strata Property it refers to items such as furniture, paintings, and similar “adornments” that may be placed in a building’s foyer, and items such as lawnmowers and gardening equipment that are all owned by an O/C; but certainly not to owners’ property such as pergolas whose maintenance/repair/replacement in proposed to be taken-over by your O/C under a SBL.
You earlier advised that your O/C was seeking legal advice on the proposed SBL, and while I’m still interested to know how its subsequently proposed attendance at the N.C.A.T. resolves, I think that you now seeking more possibly related “advice” on the matter (1) via Flat-Chat will only serve to confuse; I now am anyway!
@Whale said:
Jimmy T. may want to untangle the mess that you’ve created (because I can’t), but on the subject of an Owners Corporation’s (O/C) personal property…..
Yes, I am confused too. It seems to me that we have a situation where some units have pergolas and some don’t. Some of the existing pergolas are common property and some aren’t, although all of them have been maintained as if they were common property.
Now the owners corp has passed a special resolution absorbing the non common property pergolas into the common property. Why? Perhaps it’s just to stop squabbling.
Certainly the people who don’t have pergolas have a right to feel aggrieved if they are just legitimising costs that shouldn’t be charged to the OC. And that is the nub of the argument – not whether or not pergolas are personal property.
If the existing common property pergolas are not accruing additional levies through higher Unit Entitlements the Non-Pergola (NP) owners are being cheated. The fact that non common property pergolas were being maintained means everyone else was being cheated.
The simple answer is to seek dispute resolution through NCAT (Section 138) whereby everyone who has a pergola has to pay for its upkeep one way or another and those who don’t have one don’t have to pay. This might however result in a recalculation of Unit Entitlements and that’s another can of very wriggly worms.
If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.