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This is a confusing question (and I notice you have posted another related one elsewhere on this site).
Only the strata scheme can come under the provisions of Section 10 of the Strata Schemes Development Act 2015 and Part 6 of the Strata Schemes development Regulations which govern the “collective sale” of strata units.
Adjoining free-standing houses that are not part of the strata scheme, even if they are part of the proposed project, have no bearing on the sale of the strata units.
Unless the developer has bought 100 per cent of the units in the strata scheme, even with more than 75 per cent support for the sale, the strata unit owners (including the developer) would have to go through a fairly lengthy process required to compulsorily purchase the remaining units if their owners don’t want to sell.
As explained comprehensively in THIS POST, if just one home owner holds out, the process can take up to three years – so you can see why a developer might want to push things along and perhaps massage the facts to accelerate matters.
An honest and sensible developer would be making very generous offers now (and we’re talking as much as double the estimated value of the units, if not more) because they will still make a huge profit when they develop the whole block.
As the ‘last man standing’ or, more realistically, a minority of owners who haven’t sold, you may not be able to prevent the collective sale but you can still slow the process to encourage the developers to come up with a reasonable offer.
You and your neighbours need to speak to an experienced strata lawyer as soon as possible to protect your interests, get a clear understanding of what’s on offer and make the most of your investment.
If you are a pensioner or member of a low income group you may be able to take advantage of Fair Trading’s Collective Sale Advocacy Service.
Meanwhile you you will find more information about collective sales HERE on the Fair Trading website, including a fact sheet that you can download and print out for your neighbours to read.
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Provided you aren’t in breach of your residential status – and who am I kidding, councils aren’t pursuing short-term rentals any more – there’s no reason why you couldn’t do that, especially if the owners Corp was prepared to rent you some desk space in your lobby.
When I say “no reason” that’s skating over the possibility that your neighbours might not want their apartment block turned into a hotel.
But there are several companies that have set up a service for Airbnb hosts so that they don’t even have to meet the grubby tourists they are inviting into our homes.
So it’s really just a moral question rather than a legal one.
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@Frances said:
I am hearing that Body Corporate will not approve – something about fire! – and I am also hearing DA has to go to local Council which they will knock back – rang Council but did not receive proper advice – what is the correct advice and reasons please – and if above is correct where do I go from here.You need owners corp approval because the compressor is going on your balcony (actually common property) and you will probably have to cut through common property to install the aircon.
However, if the Owners Corp approves, the council probably isn’t going to be interested. I’m not sure they’d be interested at all, to be honest.
By the way, if you are prepared to sign a special resolution by-law covering repairs, maintenance, damage to common property and hours of use (so you don’t disturb neighbours) you can always take the Owners Corp to NCAT if they refuse your application unreasonably.
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Got it – I hadn’t quite grasped the layout.
It depends how aggressive you want to get on this. Perhaps closing the screen door noisily a couple of times might get their attention.
Or just waiting till you see them and asking politely if they wouldn’t mind.
Or getting up at 3am one morning and removing the screen door completely and leaving it by the bins.
Or printing out this thread and slipping it under their door.
Either way, this strikes me as the kind of issue that could be resolved with a polite request – or it could just as easily escalate to World War Three.
I would go with polite request … but have my missiles armed and ready in their silos.
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Lady P
I accept your point about obstruction. I just gathered that up as it was between the by-laws on parking and lawns.
I was more focussed on By-law 4(b) of the revised standard by-laws, compulsory for pre-1996 schemes which says: “An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.”
Isn’t that precisely what’s going on here? I suppose it depends on your definition of “garden”. Is it somewhere that you plant vegetables or flowers – or is it an enclosed or defined area where you lie on the grass and sunbathe?
Regarding the planters, I took them (possibly wrongly) to be large and hard to move – the common concrete or deep plastic type. Perhaps Peter can enlighten us. But judging by previous instances of this kind of thing that I have come across, the lot owner could be using them to define the area of his land grab.
Your earlier comments about access to the common property lawn outside his French windows being compensation for not having the views of higher apartments is sympathetic but I’m sure it wasn’t intended. If the lawn area was supposed to be annexed in this way, he should be paying higher levies.
Perhaps he is but in this kind of situation, normally the lower flats in a building attract lower levies because they don’t have the view (or use the lifts, for that matter). Common property is there for everyone, to look at, if not to walk across or roll around on.
It’s certainly not free land that can be annexed for the exclusive use of one owner – enhancing their property value – unless, as you rightly point out, they get a special resolution passed and compensate the other owners in the building.
By the way, a friend has just been given exclusive use of a small area near her apartment on a 25-year lease. It’s a neat way of allowing for a logical expansion of her territory into part of common property that no one else can get to anyway, while compensating the Owners Corp without needing to redraft the unit entitlements.
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@Peter Gray said:
I realise we can all use the common property but to leave furniture there permanently I thought a no-no … so unless there is a specific By-law prohibiting this than its okay so long as there is no obstruction.Many schemes have by-laws about what you can and can’t do on common property. If you have, as you say the default by-laws for pre-1996 properties, and they have not been changed or rescinded by special resolution, then you already have grounds for breaches to be issued.
You also have a by-law that says people shouldn’t park on common property without written approval (see below).
Getting back to the garden land-grab, the standard by-laws say “an owner or occupier of a lot must not obstruct lawful use of common property by any person.”
They also say: “An owner or occupier of a lot must not … use for his or her own purposes as a garden any portion of the common property.”
Couldn’t be clearer. Unless the clauses below have been removed from your by-laws, the downstairs owner has been in breach for the past 10 years. And that doesn’t give them the right to continue to do so.
By the way, if your committee refuses to act, after two months of a written request, you can take THEM to NCAT, seeking orders to force them to issue a Notice To Comply … or you could just apply to Fair Trading for mediation with a view to seeking orders against the downstairs neighbour directly.
This is what the standard by-laws say (check yours – they may be different):
2 VEHICLES
An owner or occupier of a lot must not park or stand any motor or other vehicle on common property except with the written approval of the owners corporation.
Note : This by-law was previously by-law 13 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 14 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .
3 OBSTRUCTION OF COMMON PROPERTY
An owner or occupier of a lot must not obstruct lawful use of common property by any person.
Note : This by-law was previously by-law 14 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 15 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .
4 DAMAGE TO LAWNS AND PLANTS ON COMMON PROPERTY
An owner or occupier of a lot must not:
(a) damage any lawn, garden, tree, shrub, plant or flower being part of or situated on common property, or
(b) use for his or her own purposes as a garden any portion of the common property.
Note : This by-law was previously by-law 15 in Schedule 1 to the Strata Schemes (Freehold Development) Act 1973 and by-law 16 in Schedule 3 to the Strata Schemes (Leasehold Development) Act 1986 .
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This kind of question comes up from time to time and I have yet to come across an NCAT (or CTTT) ruling that would support the right of an individual lot owner to acquire common property without compensation to the strata scheme and agreement to maintain and repair it.
But is the owner actually exercising a right to exclusive use. Or is he just using common property in a way that is permitted by by-laws.
The point I’m trying to make here is that it may not be the “land grab” that’s the problem but the behaviour of the land grabber.
So perhaps your appeal to the committee should be to stop the downstairs neighbour doing whatever it is that’s upsetting you, by looking at your scheme’s by-laws and then demanding that they enforce them.
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@newlsie said:
I understand there is a $550 fine for those OC’s that have missed the deadline to install window restrictors / locks. Does anyone know if that is per building or per window?Section 118 of the NSW Act on window safety devices says “An owners corporation for a strata scheme … must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies. Maximum penalty: 5 penalty units.”I’m no lawyer but I would say that any breach would be a failure to ensure that there were complying devices for “all windows” rather than each window. In other words, you could be fined each time you were breached until all windows were compliant, rather than fined for each window that was in breach.Penalty units are currently $110 so the MAXIMUM fine would be $550 but that could be imposed several times until the breach was rectified.What’s not clear to me is who complains? Also, Fair Trading says that the Owners Corp can pass this duty on to owners via a by-law. but this fact sheet from eminent strata lawyers says that is definitely NOT the case.No wonder people are confused.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.
I am reliably informed that because so many strata schemes left this to the last minute, installers are over-subscribed and that allows them to ramp up their charges, if they so desire.
Who’s to blame? The backsliders and foot-draggers would have to accept their share.
Also, strata schemes can just employ tradespeople to install locks and can even pass the responsibility on to individual owners via a by- law. Have a look at this factsheet
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One of the unforseen consequences of evolution is the loss of the ability to grasp the handle of an open door and pull or push it closed.
Anthropologists believe this is a direct consequence of the installation of automatic sliding doors and apartment doors with lever sprung closures.
In short, people have become used to doors closing themselves and would rather disturb their neighbours by allowing their doors to slam shut than, in grasping the door handle, waste a precious nanosecond that could otherwise be used Facebooking their imaginary friends.
Similarly, doors that have no automatic closure are left open because logic dictates that if they needed to be closed, they would have a spring closure attached.
But seriously, put a polite note on the door asking people to close it after them. That’s all you need to say: “Please ensure this door is closed after use”.
If that doesn’t work, get your committee to send out a note to ALL owners telling them the screen doors are there for a reason.
If neither of those work, and you are sure it’s the new neighbours, ask them if they have any idea who it is that keeps leaving the door open.
Finally, before you get the strata committee to invest in spring closures, the accepted wording of a personal approach is “Mate? The screen door? Really?”
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Queensland has a very different system of on-site management from the rest of the country.
Is there a BM contact number shown at or near the door so they can be alerted in anything less critical than a life-or-death situation?
A senior fire officer told be that in the absence of access keys in strata, fireys use the “big red key” – you know, the one with the long handle and the shiny blade.
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The Owners Corporation is entitled to gain access to your lot in pursuit of repairs or checks related to the repair and maintenance of the building.
However, if it is not an emergency and you refuse access, they have to seek orders from NCAT to compel you to let them in.
Armed with that information, I would tell them that you will not allow further access unless you see clear and genuine efforts made to come up with a suitable alternative – otherwise you will send them to NCAT every time they want access.
FYI: In my building, the Penthouse owners allowed access for abseilers to set up anchor points for cleaning and repairs but the equipment was huge and ugly and their patience must have been wearing thin.
I suggested putting a rail around the building, for abseilers to attach their lines, which was dismissed contemptuously by our committee.
They then embarked on a lunatic plan to install a crane on a rail track on the roof which would have necessitated the evacuation of the three top floors for several months so that the slabs could be strengthened to carry it.
Naturally, that fell through (the plan, not the crane) and guess what! We now have a rail for abseilers around the building, exactly as I had suggested five years previously.
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I would strongly advise any Owners Corp confronted by partitioning of rooms to take advantage of Section 137 (below) of the NSW strata Act and, as soon as possible, pass a by-law limiting the occupancy of any of the lots to no more than two adults per bedroom.
Note that Section 137 (6) defines a bedroom as “a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval …”
I would also note that the fines for exceeding those limits are punitive – $5,500 for a first offence and $11,000 for subsequent breaches – all payable back to the Owners Corporation.
The answer for the owner who wants to add the bedroom to seek planning approval for the additional room … and I’d lay odds that they won’t get it, for very good reason.
137 Occupancy limits
(1) A by-law may limit the number of adults who may reside in a lot by reference to the number of bedrooms of the residence.
(2) The limit may not be fewer than 2 adults per bedroom.
(3) The by-law has no effect:
(a) to the extent to which it is inconsistent with any planning approval or other law applicable to the lot, or
(b) in any other circumstances prescribed by the regulations for the purposes of this section.
(4) To avoid doubt, the Tribunal may make an order under Division 5 about a by-law made under this section.
(5) The regulations may provide for the circumstances when a person is a resident of a lot for the purposes of a by-law made under this section.
(6) For the purposes of this section, a bedroom is a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval and includes any other room prescribed by the regulations as a bedroom for the purposes of this section.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.
I am very close to shutting this discussion down because of the entirely unnecessary adversarial turn it has taken with both sides making assumptions they are not entitled to make.
It sounds to me like the tenants blocked the driveway for several hours, impeding access and egress to other owners for that period. They then lied to a council ranger who had ordered them to move.
If that is the case, it’s entirely unacceptable and shows utter disregard bordering on contempt for their erstwhile neighbours.
That their attitude might have been a result of simmering conflicts with the other residents is neither here nor there – it doesn’t excuse unnecessarily selfish behaviour.
I am more concerned with what residents can do when departing residents behave in such an ignorant and selfish way. Any further posts that deviate from that specific issue will be deleted.
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