- This topic has 3 replies, 3 voices, and was last updated 8 years ago by .
-
Topic
-
The relevant part of our strata plan’s Lift By-Law reads:
- Lots 3 & 4 to pay all expenses WRT cleaning, servicing, decorating, furnishing, maintenance, repair and replacement of lift, motor and motor room, cable, wiring, meter or fuse boxes, connections and other appurtenances and equipment associated and used with the lift, as well as the cost of power supplied to operate the lift
- A statement order [given into] the hand of the Secretary of the Body Corporate to an amount payable by a Proprietor pursuant to this By Law shall be prima facie correct and shall be payable by the Proprietor in the absence of error being established by the Proprietor disputing the same:
- In the event that either Lot 3 or 4 defaults in the performance of any term or condition of this By Law and such default continues for a period of 28 days after notice thereof is given to him in writing by the Secretary of the Body Corporate then the rights and privileges conferred by this By Law on the defaulting Proprietor may be terminated in respect of that Proprietor by resolution of the Council of the Body Corporate
- Except as expressly provided herein the rights conferred by this By Law may only be terminated with the consent of the Proprietors of both Lots 3 and 4 in the Plan
The arrangement, since in the inception of the Strata Plan in 1991, was a 50:50 split of expenses between Lots 3 and 4. The Strata Manager has altered this to align to square meter entitlements. The By Law doesn’t categorically reference 50:50 split and neither has it been altered to reflect an apportionment of costs. Can the Strata Manager do this, is it a correct interpretation and adjustment?
-
Replies
-
My understanding is that, with very few exceptions, you can only vary the payments for maintenance from shares equivalent to the unit entitlements by either an order from NCAT or a Special resolution.
In the absence of any reference to a special resolution by-law, it would seem that your previous arrangement was under “Old Spanish Customs”, as they used to say in the printing trade; that is, an informal arrangement that everyone was happy to go along with.
Assuming the lots 3 and 4 are paying for the lift because they are the only people who use it, then that should come under a special resolution or Common Property Rights By-Law.
However, as reflected in the final paragraph of the proposed by-law, it can only come into force if the benefitting owners agree to it in writing, and can only be changed with their written agreement too. (Which means if there is a previous special resolution by-law, it certainly can’t be changed on the whim of the strata manager.)
Just to complicate matters a little further, is it reasonable to assume that they owners of lots 3 and 4 are the only people to benefit from the maintenance of the lift? Surely there’s an element of the correct management of noise and safety that benefits all owners, regardless of which floor they live on.
I suspect this might be better handled by adjusting all four lots’ Unit Entitlements to reflect the additional facility provided by the lift. This may be a fairer way of sharing the costs, while making decisions about maintenance more logical and equitable too.
I also suspect that this might be beyond the ability of your strata manager. In any case, this by-law would require 75 percent of the unit entitlements voting at a general meeting to be approved. So just turn up and say no until you get a proposal that’s fair.
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.
Generally, failure to specify any proportion is taken to mean that the two parties have a ‘joint and several’ responsibility. That is “a claimant may pursue an obligation against any one party as if they were jointly liable and it becomes the responsibility of the defendants to sort out their respective proportions of liability and payment.”
The wording of the by law seems to also support that in the second part, where the two proprietors are lumped together as if they were one.
I would guess that if this ever had to be determined in some legal process, the division would be based on unit entitlements. It’s possible that UE corresponds to floor area, and that is the basis for the recalculation. But in absence of some such determination I believe that the Managing Agent cannot impose any particular proportion on either lot.
@SaltyOne said:
It’s possible that UE corresponds to floor area, and that is the basis for the recalculation.It’s more likely that the UEs are more closely allied to the value of the apartments (which is only partly related to floor area).
This by-law is, in my opinion, harsh and oppressive and contains penalties – the inability to use the lifts – that the OC is not entitled to impose.
The strata manager clearly doesn’t have a clue about the fundamentals of strata law and that should be the starting point in any discussion
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.