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This is what AI gives as the official definitions of conflicts of interest for the ACT (the numbers are links to the official sources):
- Actual (Real) Conflict: A direct conflict exists where a personal interest or competing duty is currently influencing the way an official duty is performed. [1, 2, 3]
- Perceived (Apparent) Conflict: No actual conflict exists, but a fair and reasonable person might perceive that a personal interest or relationship could improperly influence the decision-maker. [1, 2]
- Potential Conflict: An interest or relationship does not currently affect official duties but could reasonably do so in the future. [1, 2, 3]
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The set-up you have described is almost begging to be strata-fied so unpicking the knitting on this may not be the best way to go. However, for what it’s worth, here’s a rough outline of the process.
Right, so it’s three lots, not two — and a mix of a freestanding house and a duplex, which adds some wrinkles. and please bear in mind, this isn’t legal advice — just a broad overview of how the process typically works. You’d want a strata-savvy solicitor guiding you through it.
What you’re describing is termination of the strata scheme under the Strata Schemes Development Act 2015, converting three strata lots back into separate Torrens title properties.
The first hurdle is getting all three lot owners to agree. For a scheme this size you effectively need unanimity – it would be impossible to get a 75 percent majority unless one of the lots had less than 25 per cent of the vote. Any mortgagees or other registered interest holders would also need to agree.
A registered surveyor would then prepare a new plan of subdivision showing three separate freehold lots. This goes to council for approval. Even though nothing physical is changing, they need to be satisfied the resulting lots comply with current planning controls (minimum lot sizes, setbacks, access, services, etc). The duplex pair might be better off as a two-lot subdivision of their own, depending on how it’s structured.
Once council issues a subdivision certificate, the new plan is lodged with NSW Land Registry Services, the strata plan is cancelled, and separate titles are issued.
Now, the practical complications in your situation:
The garbage access walkway is the obvious one. Once the strata is dissolved there’s no owners corporation to manage it, so you’d need a formal right of way – an easement registered on the house’s title – giving the duplex owners access to the street for bins. Getting that right is important because it runs with the land, not the current owners.
The duplex common wall will need a party wall easement or covenant so both sides know who’s responsible for what.
You mention bylaws already carve out maintenance responsibilities, which is good, but bylaws disappear with the strata scheme. Anything you want to survive (like maintenance obligations) needs to be captured in easements, covenants, or restrictions on the new titles.
Insurance is worth thinking about too. Right now you presumably have one building insurance policy through the owners corporation. After dissolution, each owner arranges their own – which for the house is simple, but the duplex owners will need to coordinate a shared building policy or arrange a party wall agreement that covers insurance obligations.
Who to approach: start with a solicitor experienced in strata termination, and a registered surveyor. They’ll tell you fairly quickly whether the lots are likely to meet council’s planning requirements, which is usually the make-or-break question.
Costs for a three-lot dissolution, including surveyor, solicitor, council and lodgement fees, could run $20,000 to $40,000 or more, shared between the three owners.
All in all, if there is a problem that’s making you want a divorce from your neighbours, maybe there’s a less expensive and stressful way to approach it.
Has anyone on the forum gone through this process? Please let us know.
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As our old friend Franceso Andreone pointed out a while ago, one of the most common strata management business plans means the less interaction they have with owners, the more profit they make (unless they are boosting their income with schedule B fees for every phone call and email).
That said, and I’m not being sarcastic here, what emergencies do you think might arise that required contact with the strata manager?
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Your best bet is to contact NSW Tenants Union via its website and they will advise you on your best tactics moving forward. But I would think as a general principle, it would probably be accepted that anything that hasn’t been repaired when it should have been is going to deteriorate faster, and that is on the landlord, not you.
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AI is partly right. There is a clause in strata law that says common property must be repaired and maintained – by the owners, not the strata manager.
Section 106 says:
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
That section also allows some exclusions, but only if it would be inappropriate to undertake the repairs (whatever that means) and inaction wouldn’t affect the safety or appearance of the building.
The strata manager can pretty much only do what the strata scheme asks them to do, so expecting them to be proactive is a little misdirected. They should, however, be offering advice on what you can do to resolve this.
If the owner refuses to allow the work to be done, the OC could seek mediation and Tribunal orders under section 122 which can lead to the lot owner being required to allow access for work that needs to be done under the terms of the Act.
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So you have to make your case in the agenda, by submitting a detailed motion to the SC. Then at the meeting, make your case and vote in favour.
Good idea but the secretary is not legally obliged to include any owner’s motion on the agenda of a strata committee meeting, and the chair is not obliged to allow owners to speak at the meeting unless a majority on the committee vote otherwise. If, as in the OP’s case, the owner is “at loggerheads” with the committee and its officers, that may make any such approach futile. You can’t get turkeys to vote for Christmas. The situation for strata general meetings is different – the secretary IS obliged to include any motions and explanatory material (with a limit of 300 words) but the chair can rule the motion out of order, an action which should be recorded.
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Sorry, I meant to write more but I’m overseas and my internet service crashed. Strictly speaking, depending on local council rules, you shouldn’t be living permanently in a serviced apartment. It all has to do with the size of the windows and other things like corridor widths (honest!).
But how eould anyone in authority know? There will be people who own in or service the building who are making money from obeying the rules. They might be inclined to alert the authorities out of civic duty or spite. Or you might do it for years and no one knows or cares. The thing is, are you prepared to risk being dobbed in and having to move and sell so you can buy somewhere else.
I bet there are people doing it. I just wouldn’t be one of them.
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If the secretary is part of the problem then do realize the secretary has no obligation to include such a motion on the agenda.
No legal obligation, perhaps, but it would be part of an accumulation of evidence that secretary on any other office bearer or the whole damned committee is not acting in good faith or in the best interests of the strata scheme. You build a case by showing a pattern of behaviour, that way no single incident is judged in isolation, where the letter of the law prevails over action and intent.
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It’s risky
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There are two lawyers who sponsor this website – Bannermans and Sachs Gerace. I would recommend both of them. They are both really good (or they wouldn’t be on this site) and they hate me saying this but if you want a fight, go to Bannermans but if you want a mediated resolution, maybe Sach Gerace.
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Depends what she’s throwing.
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You are entitled to see a floor plan because the changes to the layout could affect the amenity of adjacent flats (especially the one below). The floor plan changes will also have to be approved by your local council via a DA. Even if the annexures aren’t required as part of the by-law, they should be provided before the by-law is approved. The Tribunal will only overturn refusal of permission if the grounds are unreasonable. The renovator needs to provide all the information you want or face the prospect of refusal.
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Strata committees are very much left to run their meetings and votes as they see fit, but there a plenty of ways to force them to change if they’re not doing the right thing.
The most obvious option is to present a motion to the committee itself, saying that all votes, including who voted for what, should be notified to the committee members.
If that fails, you put the same motion on the agenda of your next AGM. If the secretary and or chair baulks at that, there are mechanisms available for removing them from the committee either by a majority vote of owners or via the Tribunal.
Meanwhile, you might consider putting a motion to your next AGM that the committee reveals the number of outstanding issues with water leaks and declare what they plan to do about them.
You won’t make yourself very popular but it sounds like that ship may already have sailed.
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In the meantime, if she physically assaults someone or their property, that’s a Police matter. If her behaviour is sufficiently out of line that you suspect a serious mental health issue, you could ask the Police to do a welfare check.
That seems to be a bit over the top. This sounds like a self-important busibody rather than a physical assault risk. The law allows a majority of owners to vote to remove a committee member from the committee at an EGM. Just proposing and seeking support for such an action may be enough to curb her more excessive behaviour. Have a look at this from our sponsors Bannerman Lawyers.
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If the first repair didn’t fix the problem, they have to move onto the second repair.
The problem was that the first repair didn’t correctly identify the problem, not so much that it didn’t fix it.
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