Forum Replies Created
-
Replies
-
The value of the stat dec is surely having his complaints backed up by other residents – i.e. THEY provide the stat dec to him to support his case.
For a straight forward complaint, I’ve never heard of having to provide stat decs to support your own complaint. Sounds like typical Fair Trading Call Centre Phone Jockey misinformation to me.
If I was in this position, I would find out who else is annoyed by this, then approach the EC and tell them that if you don’t see action being taken within, say, two weeks, you will start proceedings at the CTTT to have orders issued against the Owners Corp to enforce the by-laws.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.
Only if they all agree to sell
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.
Yes, KP, it gives an indication as to how rulings are made in Queensland. As far as I can tell Adammark is in NSW and if NSW adjudicators aren’t going to use local decisions as precedents, they certainly aren’t going to use Queensland decisions. Your quoting of a Queensland by-law has absolutely no relevance to anywhere except Queensland (and only then if that by-law, as worded, is what’s operative in that specific strata plan).
Adammark has been offered a sensible way forward that doesn’t involve the highly unreliable route of taking bits and bobs of by-laws from hither and thither and presenting them to a CTTT that is notoriously unpredictable at the best of times.
Time to let it go, my friend.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.
KP, I’ve had a look at the CTTT case you quoted because I suspected there was a reason that the only example that you could find quoting precedent was a pet ruling. I guessed that the key phrase “must not be unreasonably refused” would come into play here. Sure enough, the adjudicator quoted the by-law:
… the Owners Corporation’s alleged desire to maintain a “no pets” policy, also cannot simply be applied without question. The by-law at issue, states:
“16. Keeping of animals
(1) Subject to section 49(4), an owner or occupier of a lot must not, without the approval in writing to the Owners Corporation, keep any animal on the lot or the common property.
(2) The Owners Corporation must not unreasonably withhold its approval of the keeping of an animal on a lot or the common property.”
Thus the by-law provides for the owners to seek approval to keep an animal, and the Owners Corporation must not unreasonably withhold or refuse its approval.So, in a case like this, it’s obvious that previous decisions would be brought into play because the key was to establish what was reasonable, rather than what was legally right or wrong.
As far as I know there is no other aspect of strata law where the concept of what is considered reasonable takes precedence over what is legally allowed. I’ve never liked the phrase “the exception that proves the rule” but I think this is precisely one of those cases.
I stand 100 percent behind what I said below and I think Adammark would be very, very unwise to proceed with work on the basis that others have got away with less scrutiny in the past.
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.
Makes sense – the sticking point might be that the restrospective element may be hard to pin down as it requires the approval of the two owners who have the “unofficial” enclosures. In the long run, it would probably benefit them to come on board but it may not seem like that when the idea is presented to them.
It strikes me that everyone needs to sit down and discuss the whole raft of questions that have been raised here – not just the specifics of these balconies – so that that Adammark can get on with his renovations, the strata plan has a policy in place for the future and the existing balconies are brought into line.
Whale, do you do house calls?
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 agree entirely with what ScotlandX says below.
My use of the word “illegal” in my previous posting was a bit off the mark. But it seems that that the previous EC gave approval for changes to common property without the sanction of the Owners Corp at a General meeting or the insurance of an exclusive use by-law.
Whatever the case, as ScotlandX suggests, the best thing to do is move on and deal with the situation as it exists now. Executive Committees change every year and you can’t really fault the incumbents for wanting to run the building according to strata law.
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.
@kiwipaul said:
OP = Origional posterI don’t consider it fair and equitable that the EC can suddenly turn around and demand all these condition on alterations when previously it has turned ablind eye UNLESS it address these previous violations first.
It may not be fair but it’s the law. We shouldn’t be encouraging people to ignore state laws and/or the strata act and spend thousands of dollars on illegal renovations. They are the ones who have to live with the consequences of breaking the law … not us.
Have any of these violations been done by people on the committee if so that makes the situation even worse (corruption).
There’s no suggestion of that – it’s quiite clearly just a change of EC and the new people are trying to obey strata law where the previous ones didn’t (probably because they didn’t even realise there were any laws).
I agree 2 wrongs don’t make a right but the EC needs to address the original alterations rather than ignoring them.
The EC doesn’t need to do anything. There is no clear compulsion for them to enforce their by-laws – however the by-laws are there if they choose to enforce them. In any case, surely the first step in curbing rogue renovations is to control future work then deal with what happened in the past
The OP could claim precedence if he goes ahead without a bylaw unless they have addressed the original alterations.
Adammark can claim precedence where? The CTTT? The Supreme Court? AS far as I know there is no legal precedence in strata law in NSW – all cases are supposed to be considered on their individual merits.
Even if the OP spends thousands on doing what the EC requests their is still the possibility that he will fail to obtain a 75% majority to pass the new bylaw for his enclosure.
Adammark would be very unwise, then, to spend a cent they don’t have to until they have approval – which is exactly what you are proposing they do. You get the approval first and then you do the work.
Yes they will have to spend money on lawyers – that’s why I suggested sitting down and reaching agreement with the EC first rather than pursuing some BS quasi-legal confrontational approach which is doomed to failure
It has to apply the rules fairly to everyone and it cannot discriminate.
I agree with the philosophy but where does it say that in strata law? Also, this EC would say it was applying the rules fairly (and legally) – the decisions of previous ECs have nothing to do with them and they can’t be held to ransom over bad or negligent decisions in the past.
As to the opinion from the other forum he makes a good case and he has not been contradicted by anyone on that forum.
OK, then it must be true … or maybe it’s just a forum where people state opinions as fact and there’s nobody who knows what they’re talking about who even bothers to read it. I’ve been writing about strata for 10 years now and I have never heard of individual owners being compelled to pay for the creation of a by-law that has been drafted specifically to stop them doing what they wanted.
How about a sol(icitor???) on here commenting on this option
… submit a motion to the EC for the upcoming EC meeting asking that all owners that have have made alterations without a relevant bylaw must within 2 weeks show that they intend to submit a relevant bylaw within the following 4 weeks covering said alterations.
Be interested to here whether it’s legal or not but it would be a solution to unauthorized alterations which presently doesn’t exist in NSW.
It’s not legal. The EC doesn’t have the right to issue edicts or establish conditions like that unless there is a by-law to that effect. The solution is to pass a by-law that makes owners responsible for the unauthorised changes to common property that are carried out in their homes. No by-law, no authority – it’s as simple as that.
KP, I hate to sound harsh and we value your opinion – especially the Queensland perspective that you bring to the Forum – but regardless of how unfair the situation seems it’s irresponsible to advise people to ignore the legitimate requests of their Executive Committees just because someone else got away with it in the past.
That doesn’t wash in NSW and, I suspect, wouldn’t get you very far in Queensland either.
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.
@adammark said:
It seems this current EC is taking a far more dramatic approach to the EC that approved the previous enclosures.
This happens – many new owners are much more savvy about their responsibilities than previous generations. Your EC has probably discovered that if they don’t regulate what owners do to Common Property, they could end up paying for it if it all goes pear-shaped.
Are these restrictions and requests permissable. Especially (regarding the windows) that we have no visual exposure into our balcony?
Are these restrictions permissable? Yes – because you are changing common property. Are they reasonable? That’s a whole other issue. But don’t forget that the EC doesn’t have to allow you to do anything – the easiest thing is for them to say no and leave it at that. Compromise is the key.
Lastly, their requirement of obtaining a by-law by us was linked to it being through a solicitor of their choosing. Surely not?!?! Do i have the EC from hell?!
Spend a bit more time on this website and you’ll see your EC is far from the worst in the world.
They have a duty to protect all the owners (including you) and their commonly held assets against anything that might be to their collective detriment, now or in the future. They also have an example of what happens when there are no proper restrictions (the other balconies and future battles over who is responsible for maintaining the alterations).
But let’s get down to brass tacks. You have four choices here:
1. Abandon your plans
2. Prepare for a long, exhausting and expensive fight in the CTTT and possibly the courts, the outcome of which is entirely unpredictable
3. Go ahead and do the work and face the consequences (see option 2)
4. Sit down with the EC and/or strata manger and show a willingness to play by the rules and be a good neighbour. Work out some compromises and if necessary go to voluntary mediation (it’s free through the Community Justice Centre). Forget what was done in the past – that was then, this is now.
This doesn’t have to be a fight. Remember – you don’t have the right to change common property but your EC has a duty to protect it.
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 don’t think the advice offered here is entirely reliable
@kiwipaul said:OP …
OP? again, easy on the initials, please
… submit a motion to the EC for the upcomming EC meeting asking that all owners that have have made alterations without a relevant byalw must within 2 weeks show that they intend to submit a relevant bylaw within the following 4 weeks covering said alterations.
You are asking the EC to compel owners to submit a by-law and the EC isn’t entitled to do that.
Any owner that dosn’t comply and has made alterations the EC will have a bylaw drawn up at the owners cost and voted on at the next general meeting.
This would require a by-law to either be in place or to be passed to make this enforceable. Again, the EC can’t demand this unless a by-law is already in place.
I have been informed (from another forum) that the EC can get a bylaw written to address these situations and bill the offending owner for the cost of having the bylaw written.
I don’t think this is true and I would take this more seriously if you were quoting a strata lawyer rather than ‘another forum’ where opinions are unlikely to be any more reliable that those expressed here. This one, though, sounds like nonsense to me.
If they decline to do this I consider that you have every reason to go ahead with your alterations without having a bylaw written.
No, they don’t! Two or even three wrongs don’t make a right. What has clearly happened is that Adammark has come in on the other side of a transition from a laissez faire EC to one that wants to do the right thing (and save themselves the expense of fixing up unauthorised alterations).
What happened in the past has little or no bearing on whether or not alterations comply with by-laws and strata laws. You may feel morally justified in doing the wrong thing just as you may feel aggrieved when you get a CTTT order telling you to scrap all your expensive alterations and reinstate common property to its previous state.
Prior illegal work doesn’t give you the right to go ahead with your own unauthorised work.
There are two separate issues here. The first is Adammark’s wish to enclose their balcony. Unlike in previous years, they have a EC that’s doing things by the book, so they need to propose an exclusive use by-law, taking responsibility for their alterations and paying for the cost of having such a by-law passed (because they are the sole beneficiaries of it).
The other balconies are a separate issue and something that the EC should be pursuing at the same time – although they don’t have to. However, what they could be saying to owners is either come in on this by-law (as another poster suggested) and accept responsibility for your alterations.
I also have to say that if Adammark is waiting for the situation with the other balconies to be resolved before they make a move, they won’t be calling in the builders any time soon.
Finally, and completely separately, the EC should be drafting their own by-law that says that alterations to common property can’t be made without the express approval of the Owners Corp but if any are done without approval, then the current owner and subsequent owners are responsible for all repairs and maintenance.
My advice to Adammark is DON’T over-complicate this with other issues about who did what in the past. Do the right thing for your own plans and let others worry about past mistakes.
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.
@kiwipaul said:I thinkyou are missing the point that Whale and I are making. At the moment in NSW unauthorized alterations can fall on the OC to repair the changes or restore to origional configuration.
My mistake. We have exactly that by-law in our building and for exactly those reasons. But that is another thing that should be included in the current strata review (along with the 600 other suggestions.)
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’m guessing the patio is common property for the sake of maintenance and repair but you have exclusive use of it as implied in the strata plan.
Have a look and see if the balconies aren’t also common property (as they are in most modern buildings). This is exactly the same arrangement as operates for them, the only difference is that open landscaping makes your terrace look like it’s a community facility.
So if your neighbours are intent on resuming your patio, ask how they intend to allow you to use their balconies for barbecues and drinks in the coming months. What’s sauce for the goose …
The Owners Corp has an absolute responsibility to maintain and repair common property. If they force you to take this to the CTTT they will lose. Tell them to stop being so bloody selfish or you will take action at the CTTT to show that the Executive Committee and Owners Corp is dysfunctional and have them replaced by a statutory strata manager.
Or you’ll be having sunset drinks on a different balcony every night for the rest of the summer.
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 certainly wouldn’t say they were commonplace but I would would reckon there’s a lot more than 1 percent of strata plans that have these modifications either from inception or which have evolved. For instance, any strata plan that has a mixture of commercial and residential lots will have a raft of special by-laws to govern who is responsible for what.
Specific wording aside, – because that’s down to whoever drafts it – any special resolution exclusive use by-law will or should have clauses establishing that part of the trade-off for allowing exclusive use is that the beneficiary becomes responsible for the transferred properties’ upkeep.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.
The EC can allow the use of common property as it sees fit but can’t apportion exclusive use to any individuals. Only the owners Corp can ‘dispose’ of common property in this way and it has to be done via exclusive use by-laws passed at a general meeting.
The smart thing for you EC to do is either get a proper legal survey done and apportion the spaces via a by-law, or pay for the creation of storage spaces and let them to the owners for a fee which would go back into the admin funds.
That way people who didn’t want spaces wouldn’t be paying for them and those who wanted more space would pay accordingly. Since owners effectively benefit from the money in the admin fund, there’s no loss of value to anyone.
What it can’t be is a land-grab based on a few ancient stencilled numbers that no one has observed until now.
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.
You have two factors at play here. The first is what is says on your strata plan and in your by-laws (which is nothing, by the sound of it) and the other is the principle of accepted use. In the absence of any clearly and legally esablished division of the space the CTTT is likely to rule in favour of how the space has been divided and used in the past, especially if there has been no previous objection to its division in that way.
If the proposed division of the space is based on numbers painted on the wall that have been ignored for years, I would think it wouldn’t stand up to much scrutiny at,, say, the CTTT.
I would suggest mediation (it’s free via the Community Justice Centre) but the EC should think about employing an experienced strata lawyer or a specialist surveyor to draw up by-laws that will sort this out once and for all.
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.
KP, I’m afraid i have to disagree with your figures. Just about every strata plan with which I’ve been involved has a special resolution by-law or two tucked away somewhere. It’s how we customise the ‘model’ by-laws to suit the specifics of each strata development.
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.