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Silence does not mean consent or approval. Approval is an active process which has to be commenced by the person seeking approval actually asking for it. If it were otherwise, anyone living in a strata scheme could do what they like and then wait to see whether the OC objects.
Presuming this is in NSW and the balcony is common property, the works would have been undertaken when the old Act was in force, but the new Act provides at section 111 that an owner of a lot must not carry out work on common property unless they are authorised to do so.
It is not uncommon for owners to carry out works and/or install things that affect common property without approval, either by accident or design. In respect of anything that is on common property, or effectively then forms part of the common property, it is then the property of the OC, and in the absence of an exclusive use by-law the OC is responsible for it. The other element of this is that the OC can then determine to remove anything that is on or forms part of the common property.
For example, the previous owner of my apartment installed a range hood which was ducted into the ceiling. As no approval was given for that installation, and no exclusive use by-law was put in place, the part of the installation that was in the common property was the responsibility of the OC, and they could have removed that ducting at any time.
I am not sure why your friend is so worried, and after 7 or 8 years it seems a bit silly that she is not using something that is causing her so much concern. I suggest the best course of action is to lodge an application with the OC seeking retrospective approval so she can get on with her life. If no-one has raised concerns to date it is highly likely she will get approval and she will have clarity about the issue going forward.
Approval of the OC is required under section 110 of the Act.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s110.html
If any of the work affects common property then you need to comply with section 111.
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma2015242/s111.html
A by-law is required because the owner must be responsible for the works, and any successors in title. Correspondence doesn’t do that.
There are a few issues here.
– are you saying that one person is the Chair, Secretary and Treasurer of the Committee? It’s not quite clear.
– in relation to the representations by the Chair and Secretary of the Committee respectively (who may be the same person), individual members of the Committee have no power or authority to approve anything. They can tell you what their view/position is, but that doesn’t have any effect as a decision of either the Committee or the OC.
– you say that the Secretary gave permission by special resolution to other renovations. As above, the Secretary can’t do that, and the Committee can’t pass a special resolution either. Do you mean that a special resolution was approved by the owners at a general meeting – as that is the only way a special resolution can be passed? From what you have said it appears that there was no GM, as there was no by-law put in place, therefore there can’t have been a special resolution.
I suggest that you do the following:
– get confirmation from the Council that no approval is required, that way you can rebut any objections along those lines.
– put your formal request in writing to the Committee with all the necessary paperwork with a timeframe, which would include holding a GM to approve a special by-law.
– note that no by-law has been put in place for the other owner’s works, and that if a by-law is required for your works, a similar by-law should be put in place for that owner. The reason for that is it protects the other owners from any liability relating to those works.
I suggest you contact your Council – this is probably in breach of development consents and conditions. Also it’s the quickest avenue.
Who wrote the minutes?
You were at the meeting – you indicated in your original post there was no resolution to sign the agreement. If that is the case the minutes are incorrect.
Was there a resolution on the agenda to enter into the agreement?
If you don’t disclose the conflict then it is a breach of the provision, the penalty for which is a maximum 10 units [$1100 -JT].
Note that a failure to disclose does not invalidate the decision – a similar provision applies under the Corporations Act.
I am trying to think of what may be in a tradesman’s quote that would need the protection of a confidentiality clause. Unless there is information in it that is proprietary to the tradesman, it is difficult to see what would make it so special. The strata committee doesn’t owe any duty to tradespeople under the Act – the members of the Committee must carry out their functions for the benefit of the owners corporation.
Certain things discussed at a Committee meeting, or considered by the Committee members may be confidential but they are limited. The best example is legal advice that in some circumstances may be privileged.
As Jimmy has pointed out, an owner has the right to attend Committee meetings. If a Committee is considering quotes at a meeting, it is arguable that those quotes should be included in the agenda for the meeting, and that would be available to all owners. The minutes of the meeting also have to be provided to all owners. As they say, sunlight is the best disinfectant.
This is an issue on which you should seek specialist legal advice. Do not enter into any contract of this nature without legal advice.
It is often noted that the purchase of a property is the biggest financial commitment most people make, but strangely they don’t get advice before proceeding. Make sure you protect your interests.
The short answer to that is no, the current levy due is a debt payable and whether or not works have been done properly has nothing to do with it.
More generally it is counterproductive to take that kind of position – if you haven’t paid your levies it only makes you look bad, and while I am not sure of the position in Victoria, in NSW interest will start accruing one month from the due date.
Jimmy has pointed out above that it is likely that the contract is not enforceable, as it was not approved at a general meeting. Therefore the terms of the contract aren’t really relevant.
We decided to get rid of a very naughty strata manager once, who insisted that we pay her out the two years remaining on her contract. We didn’t pay her anything. She ended up serving prison term for fraud, but that is a different story.
In answer to your question momo – a non-owner can attend a general meeting as a proxy, or duly appointed representative or attorney of the owner.
Re your other question re costs of changing strata managers – $20 to $40K sounds absurd.
When you look at a legislative provision such as section 139(1), you then need to look at the remedy or consequences that may flow from the breach.
The note to section 139(1) says that a by-law (that is harsh, unconscionable or oppressive) may be invalidated by the Tribunal.
So if an OC makes a by-law that you believe is harsh, unconscionable or oppressive then you would need to make an application to the Tribunal to have it declared invalid.
We don’t know the test that a Tribunal might apply in such a case, but it is reasonable to assume that the Tribunal would look at the circumstances of the strata scheme as a whole, and balance the interests of all of the owners in reaching any conclusion. “Harsh, unconscionable or oppressive” are pretty extreme, compare a term such as “unreasonable”.
Importantly – the section does not mean that if an OC puts in a by-law that you don’t like, for whatever reason, that you can just ignore it, either entirely or in part. If you do that, then you are breaching the by-law. If it bothers you that much, then you can make an application to have it declared invalid, and then you would have to satisfy the Tribunal that it falls within the terms of section 139(1).
There is no legal requirement to balance the specific needs of children as distinct from any other class of resident of a strata scheme. If there were, it would be in the strata legislation. An opinion written by a legal academic, however well qualified, does not constitute a legal requirement. The interests of children resident in a strata scheme may well be considered in weighing up the interests of the owners as a whole, but that is a different matter.
proudsceptic – the common property is not owned by the lot owners as tenants in common – if it were the owners could each deal with it as they pleased, which would have interesting results.
The common property is owned by the strata scheme. Any interest that the owners have (or each of the owners) is analogous to a trust, with the owners corporation having certain duties to the owners, including acting in the interests of the owners as a whole as regards the common property.
There seems to have been a focus on children playing on the lawn in this discussion – I am not rabidly anti-children, however if the owners corporation allows activities on the common property they need to assess the risks associated with those activities.
Of more concern to me is the combination of children playing, parties, alcohol consumption and tradesmen operating on the common property with what appears to be no oversight. That is a dangerous mix.
That’s right – the rate applied to overdue levies is 10% per annum, calculated on the levies owing.
The actual amount of penalty that accrues is irrelevant – look at it another way, 10% pa interest is pretty high, bearing in mind current interest rates.
We have had people who are erratic but reliable payers, in that they have consistently paid, albeit late. As long as payment is made does it really matter? The way we view it is any interest that might accrue on the debt is a bonus, whatever the amount is.
A late payment may be an issue is where a large special levy is struck, and the OC needs the funds to progress works, but note then the interest on late payments is a deterrent.