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I'm going to put my “Bush Lawyer” hat on here (and hope a proper lawyer corrects me if I'm wrong) and say that since you are a member of the Owners Corporation and the OC paid the legal fees, then you are absolutely entitled to see what the lawyers said. The Executive Committee is subject to the controls of the OC; it's not an executive that can act independently.
Your lawyers should demand to see the legal advice that was given to the EC by the OC's lawyers. If this issue ever came to court, your lawyers would be able to demand to see all correspondence between the EC, their lawyers and your strata managers (for instance).
I'm reliably informed that there is no such thing as private correspondence within a strata plan – every member of the Owners Corporation (that's ALL owners) are entitled to see anything written to and by the EC.
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The relevance of the Seiwa ruling in this case is the obligation placed on Owners Corporations to maintain common property. Seiwa doesn't exclude appearance as a factor.
However, the Act does specifically mention appearance as being a consideration in the maintenance of Common Property. There's no need to dig any deeper that the Act and no point in making assumptions based on other cases that have no relevance to the matter under discussion.
Yes, there is a choice about how far you might want to go with this but I think there would be no harm in explaining to the other owners that they have a legal obligation to maintain common property and then see what they decide.
By the way, having written about Real Estate for many years now, I can assure you that the look of a building and the care or otherwise taken of common property has a profound effect on property values. For a lot of prospective buyers, it's the only clue they have to the way the building is run.
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A couple of things spring to mind. Firstly, if an item wasn't on the agenda than it has no legal standing and you should apply immediately to the CTTT to step in and halt the levy collection.
However, if the increased levies were on the agenda – even if it was just as a proposed budget – then you are stuck with them until you can have them changed.
The easiest way to change them is to organise another general meeting as soon as possible and make sure you have a majority of owners to approve the change.
Otherwise you could try fighting this through the CTTT.
Either way, the one thing NOT to do is to refuse to pay. All that means is that you will lose your voting rights and have to pay penalty interest.
The one thing in your favour is that all your fellow owners who didn't bother to read their agendas are now hurting financially. A jolt in the hip-pocket nerve gets people moving faster than any argument, however convincing.
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I'm going with Daniel's closing comment which suggests that this may be a benefit to the majority at the (partial) expense of a minority who don't gain any appreciable benefit from it. I think you might have a good case for applying to the CTTT for an adjudication under section 149
149 Order for variation of contributions levied or manner of payment of contributions
(1) An Adjudicator may make either or both of the following orders if the Adjudicator considers that any amount levied or proposed to be levied by way of contributions is inadequate or excessive or that the manner of payment of contributions is unreasonable:
(a) an order for payment of contributions of a different amount,
(b) an order for payment of contributions in a different manner.
However, it could be argued that the integrity of the windows plays an important role in protecting the structural integrity of the building as a whole.
I hasten to add I am not a lawyer so I'd be talking to one first before I did anything, but maybe you should just insist on having your windows done at the same time so at least you're getting some benefit from it.
JimmyT
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The point is that bpositive's EC can't decide to do nothing about common property – they have a duty to maintain – and the Act clearly includes appearance as an issue of maintenance. He could go back to the original plan and if it doesn't say 'wilderness garden' then he has a case. The EC has an obligation under the Act to maintain common property. Maintenance includes appearance.
Residents at the back of this block are entitled to have the common property they can see from their windows properly maintained. If the CTTT doesn't support this – and it's a lottery, there, I admit – the District Court almost certainly will.
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I suspect the by-law already exists – Andrew just wanted to know if he can vote in favour of his application at the EC meeting.
On the question of allowing pets for owners but not tenants, this is a bit discriminatory – you can't treat one lot of residents differently from others.
however, most buildings insist that tenants have the written permission of their landlords to have pets (which is often harder to get than permission from the EC). And most tenancy agreements either forbid pets or, similarly, demand written permission before pets are allowed.
Also, tenants and their pets are bound by exactly the same by-laws as owners so there's really no reason to discriminate – I've know tenants with and without pets who strictly abide by the by-laws and owners who don't even read them becasue they don't think they should have to live under any rules.
The big difference with tenants is that if they breach your by-laws, they are also automatically in breach of their tenancy agreements and could be evicted. If only the same were true of some owners.
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Is there a legal requirement for the strata manager to be there?
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bpositive said:
Due to the peculiar shape of our block a large portion of common property is at the rear of the building. This area is full of weeds, dead leaves and not maintained in years. A vast majority of the unit holders live in the front so they are not bothered. If it goes to vote the majority will rule that we dont want to spend money on the rear. Can anything be done about this?
It's interesting that the section of the Act that deals with the OC's obligation to maintain common property specifically refers to appearance. As Daniel Dimock of Teys points out, their obligation is established, and they can either do this the easy way – just do it – or force you to drag them through the CTTT and then have to do it anyway.
By the way, you should have some sort of cunning plan up your sleeve to beautify the area or somebody will suggest concreting it.
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I'm pretty sure that it's legal to vote but it's customary to exclude yourself from the actual vote after you have made your case to the committee. However, a bit of schmoozing with the other committee members beforehand wouldn't go amiss.
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I'm guessing – you're in Queensland and the laws are different there – that the structure of the balcony is common property. The fact that your downstairs neighbour and your body corporate has has accepted this, whether or not it was legal, would suggest you have nothing to worry about.
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I reckon this is so complicated you need to sit down with a specialist strata lawyer and give them the specifics of what you are planning to do so they can tell you what you need to know.
Getting together with the other pro-balcony owners would spread the cost. Or ask the OC to pay for it because it's in everyone's interests to know the facts.
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Hi Peter
It's impossible to generalise and I'm not at all familiar with ACT strata law but I know in NSW and elsewhere, if you doubled the size of your home, even if there were exactly the same number of people living there, your neighbours would expect you to pay roughly double the levies.
Unit Entitlements are challenged fairly often here, especially when developers have set up a strata promising low levies to the purchasers of their premium properties.
We had a case here where the owner of the penthouse in an inner city block was paying less than the owner of a one-bedroom flat on a much lower floor … until they were taken to the CTTT.
That said, challenging UEs can be very complicated and stressful so it's not anything anyone would take on lightly.
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Peter
Now I'm really puzzled. I'm not disputing what you say but it's clear that strata law in Canberra is very, very different form NSW.
Here in NSW, I'm pretty sure if the floor space of a unit in a block doubled, the owners would be expected to take a bigger burden of the overall cost of maintaining the strata complex and everyone else's levies would be reduced accordingly (provided someone went to the trouble of challenging the UEs).
I can't see what changing the value of the whole strata scheme has to do with changing one unit's share of the responibilites for the running of the strata scheme. Unit Entitlements are based on the owner's share of the overall plan.
It's more complicated that the mere size of the unit or of the actual value of the unit but these two factors are closely related and are the major considerations in establishing Unit Entitlements (in NSW, Victoria and WA, if not elsewhere).
In a very rough equation if 10 units each had a UE of 10 making up 100 and then one of the units doubled in size, you would have a very strong case in NSW for arguing that the owner of the expanded unit had 18.18 and everyone else's was reduced to 9.09, still adding up to 100.
Having said that, if ALL the other units were similarly extended, then it wouldn't make much difference.
But if I had doubled the size of my unit and not had to pay any more in levies because of no increase in Unit Entitlements, I'd be keeping very quiet about it. I reckon you might have got a free kick, there, Peter.
By the way, it's different again in Queensland where the unit entitlements are split when it comes to calculating levies – one charge for running costs, the other for overall maintenance.
The thinking is that while a two bedroom sub-penthouse could easily be twice the size of a two bed-room apartment elsewhere in the building, it's occupants aren't going to make twice as much use of the facilities.
But then in Queensland, strata is a whole other minefield.
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The balconies would probably be considered common property, I'm thinking, so no need for any change in UEs – unless someone has acquired a gi-normous terrace.
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I just spoke to someone at City of Sydney and they said there is no universal law against this but any “recent” developments (say, newer than 8-10 years or so) would “probably” have had such a clause included. You need to look at the planning consent issued for your building to see if it was prohibited under that document. If it is, you have a very strong case.
Failing that, does anyone else have any cunning plans for dealing with rogue parkers? How about keys can only be issued to residents and their resident guests? Would that work?
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