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Many thanks for all the helpful replies!

Apart from the maintenance of the structure itself, as it has 6 points of attachment to the roof trusses through the roof tiles, there is a reasonable likelihood at some stage there will be a complaint from the lot owner about rainwater leaking into the ceiling inside the villa. I will check whether our by-laws have all issues adequately covered.

One would guess a reasonably astute conveyancer would look for approval of the structure before completing any sale, but the owners corporation cannot rely on that happening.

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Glenquarry Park Investments Pty Ltd v Hegyesi [2019] NSWSC 425

[Just Asking]

Disagreements between owners regarding which works should be undertaken in relation to common property, and how to pay for them, often happen. Acrimony in an owners corporation is not always equivalent to dysfunction requiring the appointment of a compulsory strata manager.

Stratanaive stated a special resolution to install a new lift was passed at an AGM. This indicates that the works are considered to be outside the duty to repair and maintain common property under s106, and are an improvement or enhancement to the common property covered by s108.

Given the ensuing disputation and confusion which has arisen and progressed to action in NCAT the owners corporation should obtain professional advice.There is relatively recent Supreme Court authority which explains the extent of the duty to repair and maintain common property, the powers of the owners corporation to carry out repairs and maintenance, and discretionary works under s108. The test for what an owners corporation “must”do is spelt out. Coincidentally, the case also involved the replacement of an aged lift.

 

 

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A fourfold increase? Could this possibly be an error, due to the annual amount being picked up and used by accident?

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As the maximum size for a Strata Committee is 9 members, and this family own 6 lots, they will be in the majority even if the Strata Committee is enlarged.

Special resolutions may not pass if the subject involves expenditure and the investor owners are averse to spending money. Otherwise it seems a grim path to NCAT to obtain orders for repairs and maintenance each time “this family” do not wish the works to take place.

The use of the word “upgrade” alerts me to a problem which I have encountered, where owners do not appreciate the difference between the Owners Corporation duty to maintain and repair common property, and it’s power to improve common property.

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Perhaps the Strata Plan could show the separate floors and associated cubic spaces which are aggregated to form the lot? If so, presumably the floor structures will be common property?

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If the Owners Corporation has accepted liability for the repair works then perhaps s.106 (5) SSMA should be considered, as it allows recovery of reasonably foreseeable losses arising from defects in common property. Courts have ruled that loss of rent is recoverable, provided action is brought within 2 years.

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One would expect that consideration of access to and use of the garage would have formed part of the development of the scope of works for rectification. Often when builders get on site they look to save time, effort or money and ask if it is ok to do something differently. Perhaps the scaffolders have said there are savings to be made if the affected owner agrees to their proposal?

There should be documentation of the tender process, which would include special site conditions such as maintaining usage of the garage?

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I wonder if it would be possible to get a motion added to the EGM to provide for the election/appointment of replacement Strata Committee members? Or even a new Strata Committee? Would the Strata managing Agent cooperate in a sufficiently timely fashion that the requisite notice could be given for the motion?

Would this work?

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Could not agree more with Jimmy T, unsubstantiated sweeping statements only serve to reduce the credibility of those making the assertion. The good strata managers would also have an interest in weeding out the poorer operators.

Strata law is not easy or straightforward. It takes years to become a lawyer, and more years to become expert in strata law. It does not seem unreasonable to me that the educational qualification to be a strata manager should be higher. Strata managers in many circumstances strongly influence and even control major decisions, and relatively junior staff are able to deduct money from trust accounts without oversight (at least in the case of the strata management company with which I am currently familiar).

In addition to considering the educational qualifications of strata managers, perhaps a duty of care to strata owners could be enshrined in legislation as has been done for builder’s, engineers etc through the new Building and Design Professionals Act.

 

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It is concerning that strata management companies and self managed owners corporations can operate without due regard for their legal obligations, with access to funds held on trust for owners. It seems there is very little remedy for misuse of owner’s funds, whether by bad faith or incompetence?

Then there is the recurring question of secret commissions? What can be done when a strata committee and/or a strata manager are able to collude so that the owners are systematically bilked?

I do not know if a Royal Commission is the answer, but with a growing proportion of the community living in strata as our cities adopt higher densities for residential housing, the potential for serious problems is increasing.

 

 

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Thanks kaindub, you have helped to clarify things.

From a closer examination of the plan, there are numbers representing total areas on the lots, but by arithmetic the areas do not add up to the total shown on the lot in question, exclusive or inclusive of courtyard areas. For the other lots the areas noted are by arithmetic exclusive of the courtyards.

A surveyor may well be necessary.

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Hello again kaindub, does the Certificate of Title for the lot although not having a plan, have a verbal description which would facilitate identifying the parcels and part parcels contained in the lot?

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Thank you for your reply Kaindub. Unfortunately the Certificate of Title for the common property shows 2 prolongation lines from the corner of the building, perpendicular to each other, connecting the building to the property boundary wall which wraps around the corner. These lines create 3 possible rectangular courtyard spaces. There is no table on the CT, unlike the DA plans. Is it a convention that the prolongation line which makes the fourth side of the area with the vigiale, excluding the other line, is the one that counts? Or do we need the CT for the lot to read its description of which line is the boundary of the courtyard?

It is unclear whether the lot is entitled  to a courtyard of approximately 60sqm, 80sqm or the entire enclosed 180 sqm approximately. It is the smallest area on the DA, and that is the area adjacent to the vigiale and bounded by the villa, side fence with the next villa, boundary wall of property and prolongation line from the corner of the villa to the boundary of the property.

Quite a difference, and no by-law. So will the CTs for both the lot and the common property need to be read together?

 

 

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Following on from Jimmy T’s advice below, where the Strata Committee is about to pass a resolution to engage an engineer to do the work in his fee proposal, would it be acceptable for the secretary to instruct the Strata Manager that the secretary and solicitor for the Owners Corporation only will be dealing with the engineer? Also including that the father and daughter are to provide access only to the common property, nothing more?

I am assuming Jimmy T’s suggested motion is a blanket one, covering all engagements of tradespeople going forward.

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