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Hi twins, as the crack in the drainage pipe is under the concrete slab in common property airspace, it is an OC matter. The lot owner is only responsible for the parts of the pipe in their airspace.
Slightly off-topic, but I thought I would use this post rather than create another.
We have an EC of 5 as well as an Strata Manager to whom we’ve delegated 99.99% of the office bearer functions.
We are trying to organise a quarterly EC meeting with the Strata Manager present as there are a few very tricky topics that we need to close and were given a list of dates to choose from via a poll.
3 EC members (2 of of whom are generally inactive) can attend on a particular date.
The chair and Treasurer cannot attend on that date, however the meeting was called by the SM none-the-less.
Would such a meeting be quorate?
Hi Kiwipaul, in NSW, your advice that the EC can simply sanction permanent use of common property via a majority vote doesn’t hold. Scotlandx’s advice is correct in that a vote has to be taken by the OC at an AGM/EGM and a special bylaw would need to be drafted to determine lot entitlements and responsibilities for that piece of common property. (I’m not sure how it works in QLD).
Mikey_z4, the BCA has to be purchased, so there is no link per se (a google search of ‘mechanical ventillation in car parks’ will turn up some lifted quotes from previous years’ BCA papers used in test cases and/or superceded BCA clauses such as BCA code F4.11) however having recently been through an upgrade to our own car park, the formulae deal with car park elements in various stages (not simply the number of car allotments) by determining whether the space is entirely naturally ventilated, partially or wholly enclosed, underground, number of anticipated car movements per hour at peak loads, number of cars, the volume of the space and so on.
As to whether the EC/OC rejects your request simply because they want to (or it doesn’t suit the OC) is not actually ‘unreasonable’. Unreasonable in your eyes perhaps, but to be specific the test of ‘reasonableness’ is done on the balance of parties and outcomes, not just one concern.
Having consideration for what is at stake – your request to achieve private benefit over common property – the law states that the OC is responsible for maintaining all common property and essentially ensuring that nothing impedes insurance and other statutory requirements from being met…nothing else; so the ‘reasonable’ test is actually not to annexe common property from the use of all for the exclusive use of one, given the potential knock-on effects.
I hope that this makes sense: honestly, if I were you, I would simply look around your car park to see if any owners do not consistently have a car in their car space (there’s always some in every scheme – especially in the city) and then approach that owner with an offer to lease it from them. You will be achieving exactly the same outcome with far less angst for all concerned.
In another post we talked about parking allocation being part of a DA process and is dictated by council (usually to a lot number/bedroom and use formula): even if the OC wished to engage your point of view they would need to seek approval from council. Additionally, if the car parking is underground, the BCA then requires that the car park be adequately ventilated: that one extra car could infact cause significants costs if mechanical ventilation needs to be upgraded or installed. (The BCA also uses a formula to dictate what is needed). There is also the impact to your buildings’ insurance and even fire certificate. For your OC to consider your request to ratify a misuse of parking, they need to cover themselves and that involves council searches and consultants(BCA and fire), none of which is free: irrespective of a financial offer, if they reject (either because they want to or have to) then the OC is still out of pocket merely by engaging council/consultants and the like.
You advised that you are in Sydney City, and, even though your scheme dates from the 70’s, Sydney council has an active policy of discouraging car spaces, so is unlikely to retrospectively approve 3 car spaces for a lot that has 2 car spaces.
All of that aside, it appears that you parked first, and asked later, which is probably not the best way of going about things. You may have had more had more luck in getting the permission had the OC not had cause to instigate action.
Granted, from what you describe, the OC have ignored the opportunity to enter into a dialogue of compromise but then again they actually aren’t obliged to: common property is not terra nullius to be claimed, no matter how innocuous the action of misuse or encroachment.
@Mikey_z4 said:
Hi Struggler and Scotlandx – thanks for commenting
I just want to clarify that thespecial by-law was struck some 6 months after the parking encroachment by me started. The by-laws were not in place when I bought into the complex.
As part of seeking written permission, i also offered to pay a market value for the parking encroachment. and i’ve also offered to have the rental backdated to the date of first encroachment. but i take your point concerning levies and so far i’ve not factored this into the market value of the rental.
two of my three vehicles are large cars. i offered at mediation to downsize these two (ie get smaller cars) so that they would all fit within the lot. this was flatout refused at mediation by the lawyer sent by the body corporate. i even asked whether i could park 2 cars and one motorcycle. absolutely NOT was the response hahaha
lastly, the standard by-law 2 says cars must not be parked on common property without ‘written permission’ – so if written permission is granted, the by-law itself states there is no contravention.
Hi Mikey_z4,
Another factor to consider is that when your building development was approved by your local council, it was done so with a specific number of car spaces vs visitor spaces vs number of proposed apartments. Another consideration as well as is the amount of turning space/clearance in what is now ‘the common area’. These plans would have been submitted by the developer.
So, even if the OC were in favour of allowing you to buy common space, it simply may contravene the original and current council regulations and you will find that it can’t be granted, no matter how much you offer to pay.
It is likely your EC will need to seek council approval prior to changing the parking plan layout: while this does not apply to every single LGA, it does apply to vast majority.
Maybe there’s one other thing that you can try. My block is a concrete slab construction (late 1990s), and my apartment has two layers of gyprock ceiling suspended from the slab by about 25mm.
My upstairs neighbours at some point installed Ikea flooring (of course no permission, and then the apartment was sold), but because of the air gap and the two layers of gyprock, I was actually none the wiser until I saw the photos on Domain.com: occassionally I can hear noises, but that set-up certainly mitigates most noise….it may be worth considering, and, if your OC is so frightened about things ‘on the record’ perhaps they will pay to retrofit your apartment.
You will loose some ceiling height, but you may gain some peace and quiet.
I’m absolutely astounded that Fair Trading is suggesting that you pay for someone else’s wrong doing, and (to add insult to the injury) actually pay to the perpetrators’ liking! It sounds completely confused and utterly irrational.
I’m surprised that your EC has not issued a notice to comply for unauthorised renovations, and would also be pursuing that option while following Jimmys advice to launch CTTT action.
Good luck
100% agree with Whale, and being told (in writing) that you are in breach of a by law most certainly is not bullying.
@That Crazy Swede said:
…Mattb, I hope your struggle to pinpoint the issue can be over now. Thank you other helpful posters. I now know what needs to be done.It appears that your issue is with the other owners, although you have managed to call your EC and SM ‘slack’ and you have called the real estate agent a ‘fool’ even though each of these groups appears to have acted completely within the law. Hence my struggle to pinpoint your concern.
That aside, as I said in my earlier post, I assume that you have received the minutes after the AGM which listed that the bylaws had been passed. And additionally (as I said earlier) given you are a smallish scheme, it would be easiest to go and speak with the EC to have the new bylaws put up on the notice board.
Lastly, as there are two owners whom you suspect have not sought the necessary permission to keep pets within your new by-law, the common process is to put the complaint in wrting to your SM who will then take the necessary steps with the EC in issuing the notice to comply and or giving retrospective permission.
Hi
A couple of things seem a little inconsistent, so if you can humour me for clarification….
* Did you attend the AGM (in person) and vote in favour of the by-law?
* If not, did you simply allow the chair (or similar) your vote by proxy?
* Did you receive the minutes of the agenda prior to the AGM (this would have listed the proposed bylaws)?
* Did you receive the minutes after the AGM stating that the motion had been adopted?
While it would be nice & proper that the new bylaws be displayed on the notice board, a simple chat with one of the EC members could fix that (you say it is a smallish scheme after all).
It certainly doesn’t sound like your EC or SM are slack if they are actively trying to improve the place; if owners are apathetic and don’t bother to read, that certainly isn’t the fault of your EC.
Also, if you are not on the EC, how do you know that the pets (which you say have since proliferated) don’t actually have permission to be there?
I am struggling to pinpoint the issue. You say that pets aren’t the issue, so is it the legal cost incurred to make the bylaws or is it that the bylaws aren’t on display or is it the bylaw itself, or is it the way the pets are behaving on common property?
While it’s good to see someone keen to get things done, being a law unto himself is going to eventually cause issues for you.
In addition to what Jimmy has mentioned I would get him to at least tell everyone in the EC what he intends to do prior to doing it. This could easily be done via email to the group as an ‘FYI’ type scenario: that way if you disagree, you can reign him in on certain matters.
Thanks for taking the time to compile this – even if just 50% is adopted, it will be a very good thing
Assuming you don’t have mixed use in your scheme, WHS provisions may not necessarily apply.
However, if you’ve a resident who needs the access and you fail to provide it, then that resident will almost certainly and easily win a case in the CTTT and depending on how nasty things get, could also possibly launch civil proceedings once all is said and done.Unless you have a requirement to install ramps/lifts/chairlifts due to a resident necessity, then I don’t believe that strata schemes automatically have a requirement to be wheelchair friendly, particularly in retrospect.
If you have a resident who needs special access, then this is generally put to the vote to alter common property (much like any other alteration).
@kiwipaul said:
Jacaranda is not a native tree so unless it has some special historical significence Tree Preseveration Order would not be applicable.Owners can cut down branches of tree overhanging their property but cannot make neighbours cut down branches of tree that are exclusively on the their property.
If the tree has been their for 100+ years it obviously was their when current parties moved in and so they have no complaint as they new the situation when they bought their nice new property.
I suspect also a special resoloution is required for a strata to pursue legal action and this requires a motion passed by 75% of the owners. As their are only 3 all need to agree to this action.
Hi
The tree preservation part is not quite true. Tree preservation orders can apply to any significant tree and it is usually the height and girth of the trunk, not whether it is native, that applies.
Three 100+ year old jacarandas would likely fall into the category (particularly if you are talking about a dispute over views these trees are obviously somewhere in Sydney harbour
). There is a dubious new category that the land and environment court can determine as a ‘spite hedge’. Hopefully that would not apply.However, the rest should apply given that the complaining apartments are only 7 years old and 75% resolution is required to pursue action. As the OC of the block containing the jacaranda trees, I would politely decline any further correspondence on the matter….