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@David said:
…The plan has been registered in June 2011, but seems to be unusual in that the “whole of the building including floors, walls, ceilings, roof, verandahs, balconies, terraces, steps, landings, paving and other landscape surfacing and any other structures standing on that lot form part of that lot” – the quoted words are taken directly from the registered plan and also written on the plan is “The stratum of each lot is limited to a height of 20 above and a depth of 10 below the upper surface level of the ground floor of the respective residence forming part of that lot…This does not sound odd to me. It seems like an attempt to define what would be normal ‘class B’ units in the ACT. I am in the middle of a terrace-like set of townhouses. Here my unit (IE ‘lot’) is from the mid-point of the party wall with my neighbour on one side to the mid-point of the wall on the other side. The roof, the walls, the courtyard areas, the balcony are all part of my lot and my responsibility to maintain. The OC takes out an insurance policy for the entire property however so I only need to insure the contents. This is the normal arrangement of townhouse units in the ACT. IE where the strata are arranged side by side we have class B. Where the strata are arranged vertically, one above another, such as a block of flats we have class A and things are more like in NSW.
Extensions are possible if approved by the OC. About 10% of our units have had substantial extensions done.
The owners corporation is responsible to pay its electricity account and you are a member of that OC so you are liable in proportion to your unit entitlements. I’m afraid this one is just bad luck for you. Similarly, if the OC has some expensive maintenance required and has not accumulated sufficient in its sinking fund you will be up for that too, even though most of the accumulated wear and tear may have taken place over the past decade or more. Ideally an OC anticipates such things in a sinking fund plan and has sufficient reserves for some unanticipated contingencies. This way the cost of one-off expenses is spread across multiple years and past, present and future owners.
What seems odd is that each year I would have expected the OC would have passed a budget that included an amount for electricity and each year someone (treasurer, EC members, manager, ordinary owners) should have noticed that nothing was spent on electricity yet the lights were still on.
Dear FlatChatters,
Just go and look at the links and sign up to be alerted when there is another workshop near you.
Thanks, JT.
Peter.
You are lucky that in NSW you ‘only’ need 75% to approve granting an exclusive use of common property. In the ACT one person can block something everyone else approves.
If the store room is big enough, an alternative that might work would be to set it up in such a way that any owner could use it if they wish to. Let’s say a survey could show that (say) 30% of owners might want to use the space at any particular time you could have that many spaces divided off, perhaps by just markers on floor. Perhaps you can just have an ordinary resolution at an AGM to use the space this way. You would still need a set of conditions for use, a process to review, a way for new people to come in and replace someone not really using the space. I would suggest there should not be fees for use of the common property.
If that is not practical then you should follow the formal procedure of granting exclusive use of the common property.
Hmmm. Well that was weird. Pasting in a chunk of the email I got seems to show bits of ‘FlatChat’ where the mail had had Smart Blocks things. Anyway, there are links that work and are worth looking at.
Peter.
Kangaroo said
…a motion to collect a special levy to commission a twice-life-size bronze statue of Saddam Hussein to be placed on the front lawn?…
Nothing like commissioning public art to get people engaged. How about a statue of a long-standing chair of the EC? in an heroic pose?
On a more serious note. How about trying something actually worthwhile and a good idea? We got way more involvement than we would have liked when we proposed a solar panel array for the roof of a carport on common property. It was a no-brainer good idea. It eventually went through with a 85% support but only on the third try (after lesser majorities on the previous attempts) and after a change in the ACT Unit Titles legislation. Now our electricity cost for lighting a very large area of common property is approximately zero but back in 2009 it sounded like a dangerously radical idea to some.
If your good idea gets up without engaging any of the apathetic, that’s OK because it was a good idea. If it engages the apathetic that could be good too-though be careful what you wish for…!
Our OC has taken legal advice as an EC decision. We decided what to do largely independent of our strata manager. Our problem did not involve the manager. We kept her informed and would have considered her advice if she had thought we were not acting appropriately but essentially, we got on with running the process since we needed to be sure we got it right. Regardless of what functions may have been delegated to the strata manager, the EC can continue to exercise any of its functions. Indeed it has a responsibility to do so. In this case I would not tell the strata manager anything about what you are doing till you have your legal advice. The lawyer will send a bill in due course and you will have to direct the manager to pay it then. In the meantime the manager does not need to know. Remember the manager works for you, not the other way around, and is obliged to act on the instructions of the EC. If you are not doing so already I would make sure all decisions from here on are formally minuted as resolutions of the EC and keep good records generally.
In the ACT legislation (so perhaps also in other states) there is a section about taking legal action. It places limits on how much the EC can spend before getting authority from a general meeting. It is worded based on the reasonable estimate from a legal adviser about the likely costs. IE If you have an estimate from the lawyer (in writing) which is within permitted limits but the cost actually goes a bit over, you can’t be crucified for that. Our Act also makes a distinction for urgent matters. IE. the EC can start to act on an urgent matter and sort out the rest later.
I would phone a suitable strata lawyer and describe your situation. They will generally tell you how they could help and estimate a cost. The EC could then formally resolve to accept the quote and act on the advice.
We put our requests for legal advice as a series of questions to which the lawyer gave a series of written answers. It worked well to clarify matters for the owners generally when it was presented to them. We have dealt with Teys Lawyers and were happy with them. I notice that another strata lawyer is a sponsor of this site but I have not had any dealings with them.
…Can I, as a member of the EC, ask the other owners to support a special resolution…
I would say that as an owner (on the EC or not) you can ask any other owner to support or not support any motion proposed by anyone.
…If the improvements are more than this the SM needs to increase the insurance value of the lot (owner pays)…
That is how we used to operate but (in the ACT) the requirement to insure the property by the Unit Titles Act is not qualified in any way so the OC has to insure everything. It is not possible to get an insurance policy that gives absolutely 100% coverage-they all have an excess for example. Consequently the OC has to make up any shortfall between the absolute requirement and the actual policies that are available in the market. So, we used to make unit owners pay the excess on claims if it was their unit that was damaged. Now the legal advice is that we were not acting lawfully and the OC has to pay that. Consequently we have a new line in our budget for making up the difference in any insurance claim.
I suspect that if alterations that increased the value were not notified to the insurer, they could claim we were under-insured. Still, in the case of minor things like a gazebo or paving, they generally don’t change anything. Even when I did a very major extension to my unit, a (say) 50% increase in the value of one unit out of 105 was deemed to be a negligible change in value of the overall property and consequently we were not required to resurvey and reevaluate unit entitlements.
I’d suggest it is reasonable to suppose that someone with a grievance is more likely to answer the survey than someone whose only comment is that they are quite content. If that is correct one could suppose that the survey, if it has a bias, is more likely to be biased to underestimate the numbers of contented tenants.
With the caveat that I am familiar only with the ACT:
The OC has a responsibility to insure the entire property. That may or may not include paving and gazebos but in any case they don’t seem likely to make much difference to the overall property value. All such changes should be notified to the insurer who can say whether a change in premium is required. In our OC quite a few units have very substantial improvements. EG. my townhouse has a whole second floor that was not original. The budget has to include insurance. To levy other than in proportion to unit entitlements requires an unopposed resolution. Although an argument could be made that units with substantially increased value should contribute more to insurance the impediment to doing so is very high. Unit entitlements could be recalculated according to a new valuation each time a unit made some alteration but that is a major expense and again has a high voting threshold to do it. We have just ended up living with the fact that some units have increased value but among over a 100 units the effect on the overall valuation of the site is quite minor and does not make enough difference for anyone to be bothered trying to overcome the substantial hurdles required.
Given the money involved and the possible role of the strata manager, I suggest promptly making an enquiry with a strata specialist lawyer.
…Nightly noise which I am finding excessive is multiple periods of moaning, screaming with swearing as well as loud thrusting noises in the main bedroom…
If you can hear them then they can probably hear you. I recall being told of a similar problem years ago that was solved as follows: The sleepless person got some friends around, they waited till the sounds from the neighbours had peaked and subsided. Then the assembled friends all burst into loud applause. The sounds did not recur.
Of course there is a risk that this might just encourage them.
It sounds to me as if either of the following two things has occurred:
1) There was a defect in the original construction resulting the damp problem. Perhaps the damp course was not done properly or subsoil drainage was not provided.
2) Something has been done on the common property subsequent to construction that has caused the problem. Perhaps the soil level has been built up higher than the original waterproofing.
Either way it seems the owners corporation should take the advice of a building engineer to identify the cause and to recommend the best way to fix it. Then it is an owners corporation expense. An appropriate thing to spend money from the sinking fund on or to have a special levy or to take a loan.
Since all 4 units are in the same situation, you have an easier situation than some. It would be harder if only a minority of units/lots had the damage, the damaged areas were common property and it was reasonably debatable whether or not the damage was minor and cosmetic and could be reasonably left unrepaired. In that situation you might have a majority decide to not spend the money to the detriment of the minority who might then have a case that this was a ‘fraud against the minority’.
However, since all are in the same situation, I would say the owners corporation as a whole could decide whether the problem was serious enough for the owners corporation to make the repair. Three owners might decide it was cosmetic only and was not going to become serious as a consequence of failing to make repairs now. In the ACT the Unit Titles Act says:
“An owners corporation for a units plan may, by special resolution, exempt itself from 1 or more maintenance obligations …[mainly the common property]… if the exemption is not reasonably likely to have a significant adverse effect on—
(a) the appearance of the common property; or
(b) the safety of occupiers of the units or of the public.”
Assuming you have some similar provision where you are, the test is whether deciding not to make this repair would be a ‘significant adverse effect’. IE it is permissible to have a minor cosmetic adverse effect but you would want to explicitly resolve that that is what it is.
If failing to make a repair now would mean the ceiling might fall in later or a subsequent repair might be considerably more expense then I don’t think you could decide to leave it.
If it really is only a cosmetic matter and it bothers some owners and not others, you could resolve to hand this maintenance matter over to the individual units owners to deal with (in the ACT anyway). In doing so you would want to make it clear that owners are only permitted to do the minor work and that any matter that could effect the structure or safety had to come back to the owners corp.