[Aitch]

These are Class B buildings in the ACT and the legislation dealing with these is similar to those in community Schemes in NSW. The individual unit owners own the roofs and their homes, inside and out.

[Aitch]

Thank you Peter C.

 Just a couple of asides to start with Peter:

1. Our OC is very large.
2. We do not count proxy votes or absentee votes when determining a standard quorum but even if we had, we would have never reached that milestone.

I am told that too much carry over of funds from one year to the next has the potential to distort s119 certificates and that it can also cause problems with adjustments made at settlement between sellers and buyers.

 

I am also elsewhere advised that the proposition that I posed is not permitted because contributions so determined must be paid within the same financial year. And further that contributions to the general funds must be based on an approved budget for that financial year.

 

Many owners from other complexes and with different managing agents seem to deal with the problem ‘their own way’. And their way appears to also be a function of the accounting software being used. It seems high time for an amendment to the legislation?

 

Thanks again Peter C.

[Aitch]

I’m now told that s142 is about personal property and that does not mean pergolas. Apparently the Personal Properties Securities Act (Cth) has a role to play and land (real property – meaning pergolas?) is excluded. More help requested please. 

[Aitch]

Now linked to this debate is the question of the meaning of ‘personal property’ as mentioned in Section 142 of the SS(M)Act. Thus, is a pergola ‘personal property’ or is it part of the land (real property)? 

[Aitch]

Thanks again Whale.

Yes, the significant majority of owners voted for the resolution/by-law therefore satisfying easily the ≥75°/ issue.

The reasons why I think that the notable majority of owners voting as they did are best left out of this forum.

The matter will now be decided by an NCAT adjudicator with the EC getting input from a solicitor.

Will let you know in due course how one fares.

Cheers

[Aitch]

Thanks Whale

First of all the key issue is the last phrase of your first paragraph. Secondly, should your second para end by saying “….. that item nonetheless remains Lot property.”? If so, I will go on ….

Briefly the background is that many pergolas in the complex are owned* (accordingly to the registered strata plan and confirmed by a registered surveyor) by the Lot owner. They have been maintained to date by the EC which thought that they belonged to the OC just like other pergolas in the complex but which do belong to the OC. Now that the question of ownership has been established by a surveyor the OC, by a majority at a GM, decided that it would continue its past practices by the making of a by-law. The rub is that the by-law makes no provision for the Lot owners of the pergolas in question to pay the OC for work done – which includes maintenance, painting or replacement of components when necessary.

I iterate that not all owners supported the resolution making the by-law especially those who do not even have a pergola!

Unless the by-law is repealed we will have the situation where all owners are being levied to pay for maintenance and replacement work of the private property of many Lot owners, but not all.

I believe that such a by-law of the Management Act is subordinate to the provisions of the Development Act and therefore cannot impose on the OC responsibility for maintenance unless done so on a fee for service basis. Section 63 of the Management Act refers?

* very small parts of these pergolas are common property but at this stage I would prefer not to further complicate the issue in this forum.

[Aitch]

Can a registered by-law under the Strata Schemes Management Act overrule the provisions of the Strata Schemes (Freehold Development) Act? 

Specifically, the registered Strata Plan defines ownership of parts of the complex between Lot owners and the Owners Corporation. If an element (say a pergola) is owned by the Lot owner according to the registered Strata Plan, can a by-law be used to effectively transfer ownership and hence responsibility for that pergola to the owners corporation thereby having the latter become responsible for the maintenance (repair, painting, replacement when necessary) of that pergola using owners corporation funds?

[Aitch]

The managing agent has now seen fit to pass the documentation to all owners. But thanks for the feedback.

[Aitch]

Thanks Peter C

[Aitch]

Thanks Peter C.  I don’t want to sound daft, but how long should I wait before I do what?

[Aitch]

I  would appreciate some advice as to when the ‘new Act’ come into effect and what are the transitional arrangements, if any?

Thanks in anticipation

[Aitch]

Thanks again Whale.  I have now read Jimmy T’s latest report and hope that the NSW Government gets on with the job.

Will keep my fingers crossed and keep the Forum posted, but I suspect that the coterie will get its numbers and if so, I will have to initiate a trip to NCAT.

[Aitch]

Thanks Whale. The complex is in NSW. Your advice has indeed helped. I now need to find out the limits (if any) on the question of ‘proxy farming’.

[Aitch]

And so the saga continues …… a south coast strata manager produces a monthly newsletter for all owners on its books …….the newsletter has a Q&A section and its latest newsletter cites:

‘Q. Are owners’ corporations obliged to enforce their by-laws?

A. Not in NSW but they are in VIC and QLD.’

All sorts of scenarios can be imagined or are in effect real.

Has the relevant Minister been lobbied?

[Aitch]

Thanks Peter C – will keep you posted

Well, it has not worked out that way. The EC proposed a By-Law which has the OC responsible for the funding and it won hands-down at an XGM.

[Author]

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