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I have heard of tribunals awarding residents permanent use of chunks of common property on the grounds that they have been using it for years anyway – I don’t know if that counts as adverse possession or not.
The problem is that, while this hasn’t been a problem so far, it doesn’t mean it won’t be in the future.
My thought would be to have a polite chat with the owner to ask them if they would like to lease the property and then impose a few conditions on the deal, such as right of entry in the event of work needing to be done on common property, or a commitment to its upkeep to an acceptable standard.
I think if this was approached from the point of view that nothing needs to change except that the ownership of the area needs to be stablished, that might get a positive response.
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They don’t have the strata roll to defend themselves to everyone.
They should go to the strata manager, pay their 30-odd dollars and make a copy of the strata roll. If the strata manager refuses, they should tell them that action will be taken at Fair Trading as they are in breach of their duties under the Act.
Strata managers are walking on eggshells at the moment, wondering where the next assault will come from. This is a shame for the good operators who really don’t need this crap in their lives but it is keeping the dodgy ones on their toes.
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Despite a long and chequered history of highly dodgy strata managers doing extremely dubious things, in NSW at least, no Strata Manager has ever been “struck off” for being really crap at their jobs.
This has obviously changed with this decision which is currently under appeal: https://www.flatchat.com.au/strata-trap-manager-first-to-be-banned-for-life/
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… NCAT is loath to get involved in removing any lawbreakers from an SC.
The new laws will allow committee members to be removed with a vote of >50 per cent of the owners. The real issue is how you can communicate with owners to tell them their committee members are misbehaving when the committee and the strata manager control the lines of communication.
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I am a tenant in an apartment owned by a close friend in Western Australia.
Maybe you could ask your friend to tell the strata company to pull their collective head in or risk being dragged to SAT for breaching the Act.
And they might ask what’s being done about these defects that are causing flooding. Sounds like someone is aiding and abetting the developer in shirking their duties to repair defects (if it’s under warranty) or helping the body corporate to avoid fulfilling duty to maintain and repair common property.
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Have a look at the third page of this document: living-in-a-scheme-by-laws-and-other-responsibilities-fact-sheet.pdf
It specifically says that only the State Administrative Tribunal can impose fines for by-law breaches – strata companies can’t. By the way, thanks to one of the idiosyncrasies (idiocies?) of WA strata law, the owners corporation or body corporate is called the “strata company”. How unhelpful is that?
And that partly addresses one of your questions – can strata managers or the committee impose charges for doing their job? Not in NSW or Vic, but who knows in the wild west?
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Are the unit entitlements equal? If so, or if you have more UEs, and the aircon is reverse cycle, you can install it under a sustainability by-law which only requires a 50 percent vote in favour. And that’s only if you are changing any aspect of common property. Otherwise, you can probably go ahead, unless there is a by-law that forbids it. Check your by-laws.
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You do not avoid GST by not being registered for GST.
Really important to know
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Thanks. this sums it up perfectly.
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The only alternative scenario I see, which I think is very messy, is for the OC to demand the current owner reinstate the roof space and in turn the current owner could sue the vendor (assuming he can be located). Messy.
To misquote the Monty Python cheese shop sketch, I don’t care how f—- messy it is. The previous owner has stolen common property (or the right to change it) and didn’t tell the new owner. So someone steals my car and then sells it to you. I say, hey, “That’s my car” and you say, the guy who sold it to me didn’t tell me it was stolen and I bought it in good faith. So I say, “Okay, you’d better keep it, then.” I don’t think so.
Have a look at this: Why Some Property Contracts Omit Renovation Details (& How It Impacts You) – SettledAnd this: Unapproved renovations – the vendor perspective – KLH & Associates
And this: Buying Properties with unapproved renovations – Alliance Lawyers
In the latter it says:
If there is a breach of s52A(2)(b) and a Vendor also fails to disclose unapproved works or structures on the property at the time of entering the contract, the Purchaser is entitled to rescission and the repayment of the deposit at any time before settlement date Regulation 16(1)(b) and 17 of the Conveyancing (Sale of Land) Regulation 2010, provided that conditions under Regulation 16(1)(3) are met.
In Huang v Ceylan [2018] NSWSC 306, the Vendor advertised for sale a three bedroom unit. In fact the development approval provided for the apartment to contain two bedrooms. A wall had been constructed along an open “media room” thereby enclosing it to create a third bedroom. The Purchaser discovered the unapproved work after exchange of contract. The Supreme Court in that found the Vendor had breached his disclosure obligations under s52A(2)(b) and ordered the return of the Purchaser’s deposit.
Then there’s this:
Don’t risk buying a property with illegal building work | The Real Estate Conversation
Does a seller need to disclose unapproved building work to a buyer?
Generally, there is no legal obligation for a seller to do so. The old adage of ‘Buyer Beware’ still very much applies with illegal building works – once the contract is signed the buyer inherits these problems.
As for buying “in good faith” – you inspect an apartment for sale, the vendor shows off the renovation and you don’t get your solicitor or conveyancer to check that it was approved. That’s not good faith – that’s blind optimism and the other owners in the scheme shouldn’t have to pay for it.
In the OP’s case above, the council could order the current owner to reinstate the apartment but there’s no way the OC can or should be held liable.
Hopefully these links will have elevated you closer to informed observer, if not quite bush lawyer status.
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Sounds like their real problem is that they don’t want you to put down floorboards. Presumably your plan is to lay the flooring with proper, top grade insulation underneath (which would be the smart thing to do if you don’t want your neighbours to force you to lift the floorboards and do it all properly).
Replacing carpet with timber – or even just exposing existing floorboards – is considered a minor renovation under the strata Act. The committee can approve it, provided they have that authority from a general meeting (they probably do). The approval may be subject to reasonable conditions but cannot be unreasonably withheld.
So where does that leave you. I would consider seeking mediation at Fair Trading prior to seeking orders from the Tribunal. At least at mediation or NCAT, the committee would have to show any evidence they have that removing the carpet is a health hazard. You could offer a compromise that you will permit specialist removers if the strata scheme pays for it.
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I believe that a future owner would not have to pay to fix the illegal renovation. It is likely that the OC would have to pay to fix it.
I don’t think that’s true at all. The owner buys the property on the basis that the vendor has told him everything he needs to know. The new owner’s beef is with the vendor, not the OC. In fact, the OC can tell the pruchaser to reinstate the property.
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I was told that if we had a strata management they had to do everything.
Who told you this? It’s not strictly true but it might seem that way in certain circumstances.
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Strictly speaking, it should have a DA as it is changing the layout of the apartment. That said, we had a real estate agent living next to us who took out the bedroom next to his lounge room so he could throw bigger parties (his words). That meant that instad of having our bedroom adjacent to his bedroom, it was no adjacent to a party room.
When we complained to council, we were told it had been signed off by the builder as a “compliant development” meaning it didn’t need a DA. The strata committee couldn’t refuse it and neither could the council. Our advice was to sue the builder. We sold, instead.
So my advice would be to notify council that there is a non-compliant renovation in your building and then let them do the heavy lifting.
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It’s worth shopping around and checking as many reviews as you can get. A subscription to Choice might save you a motza too.
We are cursed with built-in half-size (45 cm) dishwashers in our block. There seems to be only two brands available – Bosch and Ilve. The second is a lot cheaper and just as good. When it comes to fridges, make sure you have enough space plus a lttle extra for clearance. We went with a Samsung becasue it had modern tech but only just fitted the space for integration.
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