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I have a question on unapproved works. The situation is I purchased a unit only to be contacted by the manager saying there is unapproved works on the unit. The works were undertaken maybe 2 owners ago – maybe 7-10 years. No disclosure was made to us at time of purchase and body corporate minutes make no mention of this. The body corporate is unable to verify when the works were done, if in fact they were approved and if the non approved works were discussed at meetings. No minutes are available to us. The BC took no legal action other than an email to the last owner (who had purchased the unit with the works in place). BC refuses to provide evidence of the dispute ( when it originally occurred) and what transpired. Now the BC says we must reinstate or seek approval at our cost.
appreciate any views on what is our position.
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Generally speaking, if the owners corp, as represented by a previous committee has allowed the changes to common property or, more to the point ignored them, then they “own” them.
In extreme terms, in the absence of any paperwork attributing responsibility to the previous and subsequent owners, they could theoretically come into your apartement and reinstate the common property to its original state at their expense. This, by the way, is hypothetical becasue if it went to a Tribunal – which they would need to do – they’d more than likely be strongly encouraged to reach a compromise with you.
Now, you may want to get proper legal advice on this (which this is not) but my instinct would be to go back them offering a compromise, along the lines of you being prepared to agree to a by-law accepting responsibility for the ongoing maintenance of the changes, just to formalise the situation.
However, they would need to carry the costs of the required by-laws since the problem was caused by a historic failure of a previous administration to perform its duties.
It might be worth floating that idea with them informally but if they baulk at the idea, it may be time to call a lawyer.
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And what do they plan to do if you say “No”? Hire lawyers to maybe get the Tribunal to force you? And to do what? I would be saying that the OC has inherited this problem, just as much as you have. You are prepared to put things right – agree to a common property by-law paid for by them. Here’s the thing, they NEED you to agree to the CP by-law. Without your agreement there’s no by-law, according to the Act.
143 Requirements and effect of common property rights by-laws(1) An owners corporation may make, amend or repeal a common property rights by-law only with the written consent of each owner on whom the by-law confers rights or special privileges.
They could take you to the tribunal on the grounds that you have refused a reasonable request to change a by-law, except there is no by-law.
If they want the by-law they are going to have to pay. If they want to reinstate common property, they are going to have to pay lawyers (with no guarantee of success) to force you to do it and at their expense.
I would say, with my non-lawyerly hat on, that you hold all the cards in this and they need to start talking compromise or they’ll have to explain to all those owners (who probably don’t care one way or another) why they are spending their money on what may well be a wild goose chase.
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