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There is a bit of confusion about walls and what constitutes a ‘structural change’ and what constitutes a ‘non structural’ change or a ‘reconfiguration’. Knowing the difference between the two means that one is probably a Minor Renovation and the other is a Major Renovation. As we all know, approvals for both are quite different.
Here is an extract from Partridge, (a multi-disciplinary engineering consultancy in St Leonards, Sydney), when asked the question about a servery window in a kitchen:
Generally speaking, in multi-storey or strata situations, the engineer’s main focus is “Will the removal of this wall impact the structure and the neighbour above?”. If, in your example, the servery wall is non-loadbearing (i.e. it doesn’t support the floor above), then simply increasing the size of the servery window would be a non-structural change. Yes, the servery window might now need a new or larger lintel above it, but that’s a simple internal matter of just holding up the brickwork above the window. The sizing, configuration, and fire-rating of the lintel has no impact or influence on the floor and neighbour above, so we would deem it a non-structural change.
I guess the process would depend on whether it was Council approval and/or OC approval that required. I will assume that it was only OC approval that was required.
You mentioned that only part of a wall was removed between the kitchen and the lounge room. Was this a load bearing wall? If not then it would probably be classified as only a Minor Renovation as it is not a structural change. Minor Renovations include reconfiguration of walls.
You would need to put a Motion on the Agenda that requires approval by Ordinary Resolution. The Motion would need to state what works have been carried out e.g. creating an opening in a non-load bearing wall between the kitchen and lounge room.
To strengthen your request for approval you could obtain a report from a builder that states that (a) the work has been carried out competently, (b) that no load bearing walls were changed, and (c) that the renovation has not caused any damage to the common property.
In your Explanatory Material that would accompany your Motion you could state that you were not aware that the works had not been approved, and that you do not know which builder undertook the works therefore you are obtaining a building report of the completed works, and that you are seeking retrospective approval of this works by the OC.
It also may strengthen your case if you aware that other Owners in your building have already obtained approval to undertake this type of work. A conversation with neighbours or a search of the strata records should reveal this information.
Owners Corporations must act reasonably when approving requests for renovations.
You are right to be concerned, however there are stronger arguments against it than the ‘cleanliness’ argument.
I am not a fan of this type of security in strata either. “Cracking a nut with a sledge hammer” is never really necessary.
Has there been an issue with overcrowding in your building? And if so what measures have been tried so far to solve this issue?
Unlike in other countries Australian legislation has not yet caught up with the storage and use of this type of personal information. Until the legislation has caught up with this type of security I personally would not want it used in my building.
I have a feeling that some people in your building may be using the ‘overcrowding’ argument as an excuse to stop AirBnb and hence the fingerprint security.
There are many benign situations where an Owner may need someone to access their apartment when they are not a home e.g. having a relative or friend water the pot plants. Unless that person has their finger prints in the system then they won’t be able to get into your building.
I would hope that before this new security measure is put in place that a By-law will be drafted by a lawyer that satisfactorily covers all of the issues of concern e.g. how to protect the personal information they hold from misuse, interference, loss, and from unauthorised access, modification or disclosure etc. and that Owners will be given the opportunity to approve it (or not) as per the legislation.
By-laws need a Special Resolution.
Entering your building should not be akin to entering or exiting jail, or crossing an international border. I also dislike the proliferation of CCTV cameras in strata buildings.
Incidentally, the footage from CCTV cameras is available to be accessed by the strata owners as it is deemed to form part of the records of the building. Will this be the same for finger prints?
Note the quote from the following interesting article:
the controller should balance the possible advantages and disadvantages for the data subject’s private life on the one hand and the envisaged purposes on the other hand, and consider possible alternatives that are less intrusive for private life.
Its not particularly unusual. Wet areas can be swapped if the plumbing is suitable.
I was successful in changing my 2BRM 1BTH apartment into a 2BRM 2BTH apartment as the laundry was changed to a bathroom, and the washer dryer from the laundry were placed in the kitchen as per European configurations.
If there is enough space and a window then an extra bedroom could successfully be created.
People often utilise spaces differently nowadays.
I agree with JT.
Beware though. If the Lot owner who is planning to renovate his Lot offers to compensate the strata scheme for any additional costs to water usage etc then this may work in their favour at NCAT, and may work against your argument that they are free loading off other Lot owners. The Lot owner concerned would probably be deemed to be acting reasonably in making such an offer.
Why don’t you place conditions on the approval e.g. that the Lot Owner obtains the relevant DA and pays any additional costs that are appropriate for this change of plan?
Unit entitlements can be changed. In NSW unit entitlements are based on the value of a Lot. However, changes to unit entitlements are not automatic and your OC may not be able to change them.
I hate to have to say it but some buildings are just badly built. It is unfortunate that you have purchased in a building that has not got good insulation.
I live in QLD where some of the older buildings along the waterways that were not ever originally built as residential buildings have been turned from industrial or commercial buildings into residential buildings. Noise issues are unfortunately common place.
There isn’t much that you can do if the council have deemed the building to be compliant.
You can’t prevent people from using their apartments either to walk around in or from hosting a gathering as long as they are within the normal permissible hours.
If the building has been poorly insulated then a noisy owner or tenant can cause just as much noise as a short term airbnb tenant … at least the ‘noisy’ short term tenant only stays a short time whereas a noisy owner can be there for very much longer!
You could install a dropped ceiling with sound insulation in your own apartment which may assist in reducing the noise issues.
Good quality ear plugs are however, a cheaper option.
Without seeing your problem I can only re-state my opinion that if its common property then access cannot be restricted unless it becomes your Exclusive Use.
You are probably lucky that only one neighbour is using this area. In reality all occupants of the building could be using it, whether they have to shoulder through plants or not.
I know this isn’t what you want to hear, and I’m sorry about that.
I would say ‘no” … this would be very unwise.
A Special Levy can only be approved at a general meeting. If the committee was to fund this personally and then expect to be repaid via a Special Levy then that would be creating an expectation that the OC would approve this by way of an Ordinary Resolution.
What happens if the OC doesn’t approve it? Then the committee members will be personally out of pocket.
It is very important to put a lot of thought into creating a relevant budget. Unfortunately I see situations where many committees just rubber stamp previous budgets without consideration of what projects need to be undertaken over the coming year. Then there is a shortfall.
The Sinking Fund forms part of the value of a Lot. Having a very low Sinking Fund budget may seem to be ‘helping’ keep costs low, but it actually does a disservice to lot owners, particularly in older buildings with inevitable maintenance issues.
Has the owner’s corporation considered installing a cover over the car spaces, and is it feasible to do so? That way you can save the tree and the cars underneath it.
Bird droppings contain Uric Acid and can be corrosive to paint work (acidic etching). Acidic etching can happen in a matter of minutes on a hot car surface.
Either an area is Exclusive Use Common Property (with a Common Property Rights By-law), or it is Common Property – there are no other categories as far as I am aware.
If no Common Property Rights Exclusive Use By-law exists over this area then any other Lot owner should be able to use the Common Property directly adjacent to your Lot, as it belongs to everyone.
As a ground floor owner myself, I have some questions:
On what authority did the Committee determine that access to ground floor verandahs was not permitted? This seems unreasonable.
Who planted the garden barrier around your ‘private’ lawn – the owner’s corporation or the ground floor Lot Owners? Who maintains these gardens?
Is the mowing of the lawns adjacent to your verandah being undertaken and paid for by the owners’s corporation?
If there are areas of lawns with garden beds surrounding the ground floor apartments and only one access point then why not create more access points through the gardens that will permit direct access to each verandah? Providing more direct access points will assist with privacy as it will prevent one owner from crossing in front of another owner’s verandah.
NB: If it was me I would want access from my verandah to the common property and I would be objecting if the Committee prevented this.
One of the benefits of living on the ground floor is the easy and direct access to the common property lawns and gardens, particularly for children, the disabled, and the elderly. Having direct access from a ground floor property to the common property allows for a quick exit from the building in an emergency.
There are benefits of having tradespeople have access via the verandah as it saves on wear and tear on the common property foyers and lifts when bringing in materials.
If you and your ground floor neighbours want to make the areas adjacent to your verandahs Exclusive Use then there is a process to go through that is outlined in the Act. Payment for this Right would be expected. The Owners Corporation, and therefore all the owners, should be compensated for the loss of this property which all the lot owners own in proportion to their unit entitlements.
I would be contacting my neighbours to see whether this is something that they would be interested in doing. Survey plans etc may need to be undertaken to determine boundaries, and a properly drafted Exclusive Use By-law be included as a Motion at a General Meeting, the costs of which would be cheaper if shared between all ground floor owners who are seeking Exclusive Use areas.
You may possibly be successful, particularly as no other Lot Owners seems to be aware that their Common Property has been ‘privately’ taken over.
Thanks Hotwombat.
I am happy to be corrected.
Sometimes things are not necessary but they can be instead, ‘best practice’.
I have had responses from BCCM along similar lines.
I guess your Lot Owners have to work out what type of body corporate that you would prefer to be in, and what the motivations are for their actions.
Calling for additional nominations is no doubt a courtesy to allow anyone else who may be interested to nominate.
At all body corps and AGMs that I have been involved in it has been standard best practice to call for nominations from the floor for unfilled positions.
curramore – To add to SH’s response …
If you are not happy with the owner’s proposal then you may obtain a quote from an independent contractor and have a Motion, along with the quote, placed on the agenda of the next general meeting. The Explanatory Material that must accompany the Motion that you submit should outline why it would be best to have a contract with an independent outside contractor.
As you alluded to, having owners take on the responsibility of mowing seems to be a fraught with complications.
The concerns with owners taking on this role could be:
1. Will there be a Contract with the owners?
2. What will be the terms of the Contract?
3. Will these owners take out their own public liability insurance?
4. Will the owners provide and service their own equipment e.g. what happens if a new mower needs to be purchased?
5. Will the Contract and its Terms need to be ratified at a general meeting?
6. Will this garden service provided by the owners involve fertilising, weeding, edging of the lawns, and trimming of other vegetation?
7. How will the contract or the agreement be terminated if the owners do not perform their functions satisfactorily?
You are wise to be concerned. Being a volunteer in strata is very different from being a paid worker in strata.
Yes, they must.
Nominations can be made either prior to the Meeting, or at the Meeting.
Clearly if the positions have all been filled unopposed when nominations were called for prior the actual meeting then there would be no need to call for nominations from the floor. However, if not filled then the nominations must be called for at the meeting.
See the relevant sections below (there may also be other relevant sections that I have not listed). Note the word ‘must‘.
Body Corporate and Community Management (Standard Module) Regulation 2008
When committee is chosen
(1) The choosing of the members of the committee must happen at each annual general meeting of the body corporate.Conduct of ballot—deciding ordinary member positions
(3) If the number of candidates nominated for ordinary member positions, plus the number of executive members of the committee, is not more than the required number of voting members for the committee, the person chairing the meeting, if satisfied the nominations for the ordinary member positions comply with this regulation, must declare the candidates to have been elected as ordinary members.
Examples of nomination requirements—
• section 10 (Eligibility to be a voting member)
• section 17 (Lot owner’s right of nomination)
• section 18 (Requirements for nominations)(4) However, if the number of candidates nominated for ordinary member positions, plus the number of executive members of the committee, is less than the required number of voting members for the committee, the person chairing the meeting must invite nominations at the meeting for the number of ordinary member positions necessary to bring the total number of all committee members to not more than the required number of voting members for the committee.
(6) The person chairing the meeting—
(a) must invite nominations for the position or positions at the meeting; and
(b) must accept nominations that are made in either of the following ways—
(i) by members of the body corporate who are present at the meeting;
(ii) in writing, by members of the body corporate not present at the meeting.Maybe wise to check with a lawyer first but ….. can you turn off the water to that particular apartment?
Advise the Lot owner that it is an emergency as water is damaging other people’s property.
Explain that you will need a plumber to inspect the source of the water leak and repair it before the water can be turned on again.
The Lot owner who is refusing access while the problem gets worse may have to contribute some money for rectification even if it is found that the issue is with common property and should ordinarily be the responsibility of the owners corporation.
The justification would be the owners corporation has suffered an economic loss caused by the negligence of the Lot owner who refused permission to have the pipes inspected and repaired in a timely manner.
The owners corporation could perhaps sue for damages to compensate for their ‘harm’.
Yes. The Body Corporate should be given the opportunity to function with a full complement of members.
It may be that the AGM cannot attract sufficient members to fill all of the positions but at least there would have been an attempt made to do so.
In my Body Corp the period of time between calls for Nominations to the committee and between the AGM itself is often 4 months.
New Lot Owners may have joined the membership of the Body Corporate between the time when the nominations were called and from when the AGM was held.
Nominations from the floor of the meeting allows new owners to nominate or be nominated. Existing Lot Owners may have changed their mind and may now want to join the Committee.
The number of committee members a body corporate has for the whole year is determined at each annual general meeting. Throughout the year, the body corporate cannot increase or decrease its numbers on the committee. For example, if 6 people were elected to the committee at the last annual general meeting the body corporate must ensure it keeps 6 members for the whole year.
Therefore, if a position becomes vacant throughout the course of the year then it must be filled.