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Hi Simone
I'm wondering what happens when, as in the case under discussion, a by-law is brought in that makes an existing installation non-compliant. And can the owner reasonably argue that the prior installation invalidates the by-law if it's not corrected?
JimmyT
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I hate to contradict a lawyer but think there's a bit more to it than that.
For instance, City of Sydney planning regulations appear to forbid the leasing of car spaces to non-residents. There's also the question of security of buildings which can be hugely compromised by allowing non residents to come and go into parking spaces.
The same section of the law has been used to try to allow short-term rentals in residential buildings and, as far as I know, has failed to do so when it has been challenged.
In my non-legal experience there are may other ways around Section 49 – otherwise we'd be saying that inner city apartment blocks can become parking stations for greedy owners.
For instance, a by-law that says owners may not operate their lot in contravention of the law – including planning law – would surely squash the parking scam.
On this interpretation, Section 49 would allow sub-letting, overcrowding, unrestricted pets, holiday rentals, brothels … whatever, because it allows free rein to the lot owner to ignore by-laws that they don't like.
Surely not? If this is the case then a lot of buildings in inner Sydney especially are going to have a lot of problems with opportunist parking space rentals.
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Nat said:
Hi There,
We bought an apartment and would like to install the air-con. We put the approval form forward which was rejected. As we were explained if one of the owner is against our air-con unit on the common property wall – this will not go ahead. I would like to notice that there are already 2 air-con units installed on the common property wall and the second one was installed after we were refused to do so (as the permission was given incorrectly and they could not do anything about it).
Would appreciate your advice on the above – whether this is correct if one owner is against – nothing is going ahead and whether based on the precedents set (2 air-con installed) – we can argue about it and install it even without approval from the Committe.
Thank you
Your EC can't allow a veto vote like that (unless there are only four units in the block). Special resolutions “only” require 75 percent of the vote. In your situation, I would check that there is no detrimental impact on any other neighbour and no by-law that you would be breaking and then inform the EC that they have created a precedent by allowing the previous A/C installations. If they aren't doing anything to have the other a/c units removed, then they can't reasonably prevent you from having yours.
I would then try to get enough support from other owners to call an Extraordinary General Meeting at which you would present a motion for a special resolution to allow you to have a/c installed.
Failing that, I would take them to Fair Trading (Tel. 13 32 20) for mediation and then, if there's no resolution, to the CTTT for adjudication. Going ahead and just installing it without permission is a very tempting option but it could cost you financially and in terms of your relations with your neighbours if it all goes wrong and you are ordered by the CTTT to remove the a/c unit.
The CTTT need not recognise previous installations as a precedent, especially if your OC can argue that they are illegal although to be honest, the CTTT is a lottery these days and there's no predicting what they will decide.
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Yes and no, Peter. You usually need a special resolution to alter common property and that requires 75 percent vote in favour by owners voting at a general meeting.
There is nothing in the NSW Strata Act that says anything about the size of the “incursion” or how profound its effect is on common property (although in practice, drilling a few holes to hang pictures isn't going to be a problem).
If you are changing common property in a minor way, for instance running a gas pipe through a common wall to a balcony barbecue, you would thoretically need Owners Corporation permission but might get away without it because no one need know you have done it (unless something goes wrong).
But air-conditioning units, for instance, have the potential to cause a noise nuisance and most ECs would be all over that, which would inevitably lead to a motion for a special resolution.
In the hypothetical of the barbecue gas pipe I mentioned above, if there was a problem with that – leaks, for instance – and the owner didn't have proper permission for it, they would be in all sorts of trouble.
The fact of the matter is that most owners Corporations are
non-compliant with the law in some way or another and people just get on
with stuff until there's a problem.Also the law does stipulate that if
the OC has agreed to a change in common property and hasn't included a
provision for the unit owner to maintain the installation, then the OC
becomes liable for its maintenance.However, as I said, there is no provision that I know of in NSW for a division of work between minor and major. If I'm wrong (and it has been known) hopefully someone will put me right.
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PeterC said:
I would be surprised if other jurisdictions did not have a similarly sensible split of major and minor.
Strata is full of surprises, Peter, and all too few of them are pleasant ones.
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What can be done is that you can alert all owners to the fact that their money is being wasted.
Somewhere at the back of my mind there's a thought that you will also be taxed on the excess in the sinking fund. Since it's not ussed or allocated to projects that haven't been contracted out, I think the Tax Office considers it a profit and will tax you accordingly.
Don't quote me on that without checking with your strata manager but if it's true, then you'll be hit with a double whammy – an unnecessary special levy and then a tax on the excess.
Get a hold of your strata roll and write to or call every owner personally and tell them (in as unemotive language as possible) what the problem is and why they need to vote against this.
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The owner of the unit needs permission before he can change common property (roof, loft space, ceiling) and the Owners Corporation needs a guarantee that he will maintain the skylight at his own expense. That requires a special resolution by-law which lays all this stuff out. For a special resolution by-law, he will need 75 percent of the owners to agree to this at a general meeting (it’s actually no more than 25 percent voting against and Unit Entitlements may come into play, but basically he needs six of the eight owners to agree).
Why does he have to pay for the drafting of the by-law (and calling the meeting)? Because he is the only person benefitting from this so why would anyone else vote in favour if it’s going to cost them money?
Why would the OC go to all this trouble? Because if you don’t the law quite clearly states that the skylight would become your responsibility if you don’t make it clear in a special resolution that it’s his.
And the other thing you need to know is that you should insist that he uses (and pays for) a specialist strata lawyer to draft the by-law. He can either use a lawyer of your choosing or pay for your lawyer to review his lawyer’s by-law but that would be a condition I would place on even considering the idea.
Why do you need a lawyer? Because they will tell you the important stuff like the correct section of the Act under which to create the bylaw (as Simone from Teys does below) which is different from the one that governs changes to common property.
By the way, if the owner just goes ahead and installs it, you can take him to the CTTT (and possibly to court) to force him to reinstate the roof to its original state.
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There are two basic issues here. The first is the desirability of maintaining the aethetics of the building and the second is the legal obligation imposed on all Owners Corporations to maintain and repair the building.
The second one is easier to manage: get a report done on essential repairs and if the OC (that's all owners) refuse to do the work, drag them off to the CTTT and make them.
The first issue – the look of the building – should be obvious but requires a more subtle approach. Enlisting the help of local estate agents for their opinion on what even a minor refurb would do to the value of all the properties in the building would present a fairly compelling argument. Even a five or ten percent boost to property values is going to more than cover the cost of a paint job. Get a few examples of property prices in nearby buildings that look better.
In my own building a real estate agent's horrified reaction to an ill-conceived, penny-pinching plan to reduce security pretty much killed off that idea.
As far as finance goes, Lannock Finance – specialists in strata loans – is one of the sponsors of this website and they wouldn't be if they weren't a reputable company. You can find out more about them here.
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I don't think there's anything to stop an owner inspecting common property unless there are restrictions mentioned in the by-laws (times of access to a swimming pool, for instance). But accessing their rented property is a whole different issue.
Who issued the letter and on what basis was it issued? Is there a by-law? Is there a fire safety issue? Is the stuff a visual intrusion? Without that, anyone who removes another person's property without proper authority could find themselves in all sorts of trouble. I'd be photographing it as evidence for the claim against the Owners Corporation when it goes missing.
The arbitrary issuing of “naughty” notes by members of the EC has little legal standing. For any such warning to have any effect, a “Notice To Comply” has to be issued following a properly constituted Executive Committee meeting (unless a Strata manager has specifically been delegated to carry out these EC functions).
The phrase “cannot unreasonably be withheld” with regard to permission for pets is marvelously loose. But if the dog is neither dangerous, nor a nuisance nor makes a mess of common property, its size is irrelevant. Great Danes are amongst the best pets you can have in an apartment because they are lazy and non-territorial.
If there is no actual reason for refusing the dog then, by extension, refusal must be unreasonable.
Going by other discussions elsewhere on the Forum, you probably can't change the number of members of an EC at an EGM but if you can raise a 75 percent vote in favour you can remove individual members (or the whole committee) and replace them.
Sounds like it's time for you to sit down with The Brothers and explain that times have moved on and strata blocks can't be run like institutions any more.
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A landlord or their agent can enter your home for an inspection without your consent, provided they have given seven days notice in writing. If notice is posted, the landlord/agent must allow an extra four working days for delivery.
They are allowed to do this a maximum of four times per year. Have a look at the TenantsNSW fact sheet HERE.
If you are uncomfortable with this arrangement and can't be there yourself, you might want to get a friend or neighbour to attend on your behalf.
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Check your by-laws and strata management statement (part of your title deeds). The general rule seems to be that anything that's involved in protecting common property (like the waterproofing of your bathroom) is common property but this can vary. Anything external (like pipes, taps and fittings) is usually the individual owner's responsibility but this can vary too. Hit the paperwork and see what you can find there.
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Older units can be great value – they are often better constructed than some of the modern “affordable luxury” (whatever that is?) units and have added value because they are in established communities.
Get your solicitor to do all your searches thoroughly to make sure there are no surprises around the corner in terms of special levies or essential work that has been delayed. Pay particular attention to the sinking fund – it should have enough money in it but it should also have been used appropriately for repairs and maintenance – and check the minutes of the EC to make sure there are no other problems in the building.
If you do all that and all the boxes are ticked, older buildings are less of a gamble than off-the-plan purchases.
And don't be put off by all the discussions on this forum – the hundreds of thousands of people who are happy in strata tend not to write websites like this. And when things do go wrong, then we're all here to offer help and advice.
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You go to Fair Trading/CTTT and ask for an adjudication ordering the Owners' Corporations to undertake the work on the grounds that they have a legal obligation to do so.
Or you ask for the appointment of a statutory manager to take over the running of the building.
Or you and your like-minded neighbours sue your Owners Corporation in the Supreme Court for damages on the grounds that the value of your home has been lowered by their failure to observe their legal responsibilities to undertake repairs.
Or you get a strata lawyer to write a letter to all owners explaining their responsibilities under the Act and the consequences of not fulfilling them.
Or you do any combination of the above
JimmyT
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I'm planning to base this week's Flat Chat column on this so let's see what comes up after bthat.
JimmyT
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