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@Libbylou said:
I’ll contact the strata manager tomorrow to ask for a copy of the exclusive use bylaw.It should be included in your regular by-laws as a permanent record. Don’t you have a copy?
While it’s an exclusive use area, are other owners allowed to come up and check out the roof for any reason?
No. On the same principle that they can’t come and look at your balcony (which is common property)
… has it limited their use and enjoyment while having it as “exclusive use”? they have to have washing machines and dryers in their apartments now, rather than wash and dry in the sunshine on the roof; they can’t use the roof as a safe and secure place for children to play; and they can’t access the roof as an escape route in an emergency (up one stairs and down another). Are these reasons why they could have the “exclusive use” bylaw overturned?
Not really. The loss of amenity was part of the trade-off for which they accepted the payment of $20K.
we’re also converting the old laundries on the roof (with permission) into a second kitchen, bathroom and office, so adding value and enjoyment for ourselves. can you comment on any of this please?
If you get permission, there should be no problem.
However, if the OC feels that this was never envisaged in the original exclusive use by-law, and that you have somehow gained an advantage that they never thought you would have, there is a relatively simple formula, established by the High Court, for compensation, which I will codify as c = n – (e + x).
In this formula:
c = compensation to the Owners Corp
n = the estimated value of your apartment after the new work has been done
e = the estimated existing value of your apartment
x = the costs associated with the improvements, including actual work and materials, architect and design fees and legals.It’s not hard to see how in your circumstances, ‘c’ could end up close to zero but it may be worth looking at this if there is resistance to allowing the work done.
One other thing about a properly constituted special resolution or common property by-law: apart from via orders from NCAT, it can only be rescinded with the written permission of the lot owner.
And thanks for changing your screen name!
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@Sir Humphrey said:
Parking spaces that comply with Australian Standards may need to be wider if there are impediments such as bollards.True. And standard parking space sizes are based on the dimensions of a 1979 Ford Falcon.
I think the case that I am recalling required the bollard to be placed so that it neither impeded access and egress nor the opening of doors.
More fundamentally, I think for the second year in a row, the best-selling vehicles in Australia have been the monster crew-cab utes that we see everywhere.
As this brilliantly written and incredibly informative article asks, how long will it be before we have a debate on whether or not you can limit the size of vehicles in apartment block parking? Most of these monster trucks fill every last cm of a standard space (allowing no extra for opening doors) and some are actually too long to fit in.
In the meantime, generally speaking, Notices to Comply for parking over the line and over common property or other spaces may be the way to go.
By the way, I am reliably informed that only one local council (Lane Cove, I think) in the whole of NSW is participating in policing parking in strata blocks. Yet another of our fabulous new strata laws that, 18 months later, turned out to be little more than window dressing.
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@Libbylou said:
The previous lot owner, who had “exclusive use”, damaged the roof by hammering floorboards into the waterproof membrane, but every lot owner had to pay to get it fixed (and still do if there’s damage caused by us).Where does it say that the membrane has to be repaired at the Owners Corps expense? If it’s in the exclusive use by-law, than fair enough. But while the Common Property is the responsibility of the Owners Corp, damage done to it is the responsibility of the person who does the damage.
You really need to follow Lady P’s advice and go and look at your by-laws (which your secretary should have anyway, if only because every new tenant is required by law to be given a set).
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@Libbylou said:
I know, odd that all other unit owners consented to pay for the damage to the membrane. from what I understand, at the time the chairman of the OC was a strata lawyer so you’d think she’d know better? a mystery. please feel free to comment – I’m bamboozledIt does seem odd but I’m guessing that the former chair was only too aware that the Owners Corp’s primary responsibility was to repair the damaged membrane first – regardless of who was liable – then pursue the culprit for the costs afterwards. It may then have been decided that it was either too hard or not cost effective enough to chase the owner for the costs. Or maybe they just lost interest. Either way, they probably did the right thing to begin with, then didn’t follow through.
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Actually, in NSW individual committee members can hold all three offices – chair, secretary and treasurer – if the strata committee agrees.
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Depending on how efficient your strata managers are, the first thing you might need to do is to apply for an interim orders instructing the owners corp not to proceed with the work.
You would do this using THIS FORM. The application for interim orders does not require mediation but it must be related to an application for orders which does.
So, at the same time you could apply for mediation, then orders, under section 24, revoking the decision of the general meeting, on the grounds that it a) contravened the terms of a by-law already in place and b) gave exclusive use of an area of common property without appropriate common property rights by-laws being passed.
Once that has been resolved, you could apply for mediation, then orders under Section 232, due to a failure of the owners corporation to enforce a legitimate by-law. You probably have to do this after the Section 24 matter has been resolved, due to the conditions laid out in Section 232.3 (below)
In both cases your mediation application would be on THIS FORM and your subsequent NCAT application would be on THIS FORM.
Here are the relevant sections of the Act and how they may apply in your case.
24 Order invalidating resolution of owners corporation
(1) The Tribunal may, on application by an owner or first mortgagee of a lot in a strata scheme, make an order invalidating any resolution of … the persons present at a meeting of the owners corporation if the Tribunal considers that the provisions of this Act or the regulations have not been complied with in relation to the meeting.Section 135 of the Act requires all owners to comply with by-laws. The decision of the meeting is one that allows owners not to do so and is therefore probably in breach of the Act.
(3) The Tribunal may refuse to make an order under this section only if it considers: (a) that the failure to comply with the provisions of this Act or the regulations, or of the Strata Schemes Development Act 2015, did not adversely affect any person …
The granting of exclusive use of a section of common property and the payment of the costs of concreting are both at a cost to other owners and the actual use of this new parking area may also adversely affect other owners (if that’s the case).
231 Interim orders
(1) If an applicant for an order by the Tribunal under this Act requests the making of an interim order and the Tribunal is satisfied on reasonable grounds that urgent considerations justify the making of the order, the Tribunal may:
(a) make an interim order in the form of any order that could otherwise be made by the Tribunal …This is worth pursuing if you think the strata committee and strata manager are likely to move quickly on this to avoid orders not to do so.
232 Orders to settle disputes or rectify complaints
(1) Orders relating to complaints and disputes
The Tribunal may, on application by an interested person, original owner or building manager, make an order to settle a complaint or dispute about any of the following:
(e) an exercise of, or failure to exercise, a function conferred or imposed by or under this Act or the by-laws of a strata scheme,
(2) Failure to exercise a function
For the purposes of this section, an owners corporation, strata committee or building management committee is taken not to have exercised a function if: a) it decides not to exercise the function …
(3) Other proceedings and remedies
A person is not entitled:
(a) to commence other proceedings in connection with the settlement of a dispute or complaint the subject of a current application by the person for an order under this section, or
(b) to make an application for an order under this section if the person has
commenced, and not discontinued, proceedings in connection with the
settlement of a dispute or complaint the subject of the application.So your owners corp is in breach of section 232.2 (a) because it has clearly and openly decided not to exercise its duty to issue a notice to comply. Your strata manager should have cautioned them that this might be the case.
This could turn out to be complicated so you might want to consider getting legal advice from a specialist strata lawyer …
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@madmother said:
Because the Colorbond fence is on ground that has been treated as exclusive-use for the past 30 years, but is technically common property according to the strata plan… Does my neighbour own it or is has it effectively become part of the common property?I’m not familiar with WA strata law (which is still evolving) but I would say the neighbour owns the fence and the Body Corp own the ground on which is sits – so at any time they could insist that the fence be removed.
– If my neighbour wants to take the fence down in future does she need my permission, or is it hers to do with as she pleases?
The fence shouldn’t be there so I don’t see how you can insist it remains.
Basically, you are talking about a land grab where it has suited everyone just to fence off an adjacent area of common property. But from what you say, those fences shouldn’t be there to begin with (and may be in breach of your planning approval).
It sound to me like you have reached a stage in your scheme where it would be worth formalising your informal arrangements , including rules about who can do what with their fences.
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I have a vague recollection of a CTTT (as was) ruling that allowed a bollard to be installed on the boundary line between the car spaces.
Frankly, though, I’d be tempted to just park partly in the empty space until such times as that becomes an issue … then release the hounds!
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The OC can pass by-laws that deal with the external appearance of the building and your balcony doors would probably fall into that category.
By the way, the strata committee can’t pass by-laws, they can only propose by-laws that have to be approved by at least 75 percent of those voting at a general meeting.
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@shedsrus said:
Question(s):
Have I a fair case for objecting to the minutes as-published?
If they are not accurate and don’t reflect the resolution at the previous AGM, then yes. The easiest thing would be to have them amended before the meeting, if possible.
Can the meeting ignore my understanding and leave the situation as-is?
Yes, but that would leave owners open to accusations of not acting in good faith which could make them personally liable if they have knowingly ignored the facts and then it costs the OC as a consequence. Make sure you have something in writing that you can send to your secretary and have at least noted at the meeting.
If the minutes are amended, is a by-law required to place the onus back on the owners or is some other “special” approval available that has legal merit?
Yes. You need a special resolution by-law that makes sure the current owners and anyone they sell to takes responsibility for the trees. If they refuse, rip the trees out.
NOTE: I have read an amount around the subject and interpret things to mean we would absolutely need a by-law (at some cost) plus a signed document from the owners agreeing to our requirements. Is my understanding correct?
Yes. A by-law of this kind can only be passed with the written approval of the other party
Who gets to pay all the costs of by-laws and legals?
They do – after all, they are tho ones who are benefitting and no one else is
Scenario 2:
Another, first-floor, owner is wanting to install an aircon unit. Their intended place for the compressor is affixed to an external wall of the relevant bedroom, some three-plus metres above the ground.
Question(s):
It would appear a by-law would need to be created plus, as per the above tree issue, a document agreeing to responsibilities and signed by the Lot owner. Is that correct?
Probably, if it’s going to be installed on common property (e.g, a wall)
If council approval is required is it the OC who foots the bill or the lot owner?
The lot owner. They want the permission so they pay for it.
Can the OC insist the compressor go on the balcony?
No, not directly, but they can refuse permission for it to go anywhere else, either because it would be on common property or because it would be visible from outside the lot.
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@davidb said:
Actually I think I’d prefer to pay a bit extra for someone I could trust but that’s often impossible when you’ve got a committee that always chooses cheapest. I don’t know who asked these particular contractors to quote for us but they were probably recommended by the strata agents.I think owners corporations have a legal obligation to only use licensed and fully insured tradespeople. That’s why strata managers have a “panel” of tradies whom they know, who are going to tick all the boxes.
You might find, however, that the tradies may have to pay a processing fee to get on the list … and you can guess where those charges end up.
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I think in your shoes I would be saying to all concerned that either they bring the scheme into line with the law or you will be applying to NCAT for the appointment of a strata manager who will take over the running of the scheme until such times as the block is fully compliant.
However, this is one of those “be careful what you wish for” options because a competent statutory manager will start issuing notices to comply and special levies based on what the building needs rather than what the owners want.
Why would you do that? Because when the other owners move on, leaving their unauthorised alterations the rest of you will be left with responsibility for their repair and maintenance.
This would be a good time for the other owners to sit down and start talking sense while they still have the opportunity. Otherwise, you can always unleash the hounds – and the statutory strata manager only needs to go by the book; they don’t need to listen to anyone.
By the way, it doesn’t matter when the owners had the flooring installed – if it’s too noisy, it’s too noisy and they have to remedy that.
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The only exemption is when the strata committee or owners corp lose a Tribunal case against an owner. They can’t just pay the bills or costs out of the admin fund – they have to raise a special levy to cover the costs and the “winning” owner can’t be levied as part of that process.
104 Restrictions on payment of expenses incurred in Tribunal proceedings
(1) An owners corporation cannot, in respect of its costs and expenses in proceedings brought by or against it for an order by the Tribunal, levy a contribution on another party who is successful in the proceedings.
(2) An owners corporation that is unsuccessful in proceedings brought by or against it for an order by the Tribunal cannot pay any part of its costs and expenses in the proceedings from its administrative fund or capital works fund, but may make a levy for the purpose.
(3) In this section, a reference to proceedings includes a reference to proceedings on appeal from the Tribunal.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.
Surveyors will give an audit of works done but that would require access to the units and you are unlikely to get that from uncooperative owners.
My thoughts are that you start by seeking mediation at Fair Trading with a view to the owners either seeking by-laws to approve their renovations retrospectively or return all common property to its previous state.
I would also, separately, start an action on the timber floor as that is a change whose impact can be established outside of the unit concerned.
Meanwhile I’m not sure what you mean by “they’re refusing to participate in the SP, in fact stalling, unless it is of benefit to them.”
Does that mean they aren’t attending committee meetings or preventing them from taking place, or what?
Regarding the owner’s husband’s outbursts, you should consider adopting a code of conduct or standing orders (see this post ) or even employing a security guard for your next meeting
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