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I’m not a surveyor, I think that would be the best person to ask.
Also when entering into a contract like that, it’s a good idea to ask how they have calculated the space. A lot in our block sold not long ago, advertised as a certain size. I knew it wasn’t, because it is considerably smaller than mine, but according to the real estate agent’s measurements, it is larger. Caveat emptor.
What would the stat dec say? What would your friend do with the stat dec? Who would the stat dec be given to?
The advice from Fair Trading sounds pretty flaky. OC to CTTT would be the option if nothing else works.
I can so relate to that.
We have a painter here at the moment, painting some outside pipes, door lintels etc. He was cornered by an irate owner who tore strips off him because, she said, he had splashed paint on her window. There was one splash of paint on her window, on the inside. It had clearly been there for years. The painter flicked it away with his fingernail. She said well, what about all these other marks? He said, they are bugs, you need to clean your windows………
Square metreage is determined by measuring the outer boundaries of the lot, I.e the perimeter of the entire space, not the measurements of each room added up. So it disregards walls, cupboards etc.
You can get a surveyor to measure it for you if you like.
Unit entitlement is determined at the time of registration of the scheme, by reference to value, as distinct from size. So you may have two lots the same size, one with a view, so the one with the view is worth more and therefore has a greater entitlement.
Note this is the general rule, some developers can be a bit naughty when they allocate entitlements.
There are lots of cases on reallocation of lot entitlements, the starting point being whether the allocation was unreasonable at the time of registration. If not, the Tribunal won’t make an order for reallocation.Refer section 183 of the Act:
https://www.austlii.edu.au/au/legis/nsw/consol_act/ssma1996242/s183.html
In your case the lots have changed after registration, which may or may not materially affect the value. Perhaps when the owners sought approval a condition of the approval should have been that the owners agree to a reallocation. That doesn’t stop you putting up a resolution to do that now, but those owners may not agree.
I think it is worth repeating that based on adammark’s information, the previous two balcony enclosures were not illegal/unauthorised – they were approved by the EC. The fact that the EC did not require a by-law does not make those works illegal. The EC did not turn a blind eye, they approved the works.
10 years ago renovations to a lot in our scheme were approved with no requirement for a by-law in relation to changes to the common property, although it was a condition of approval that the owner was responsible for the works going forward. Another lot owner has recently done works without authorisation, and we are requiring him to seek approval and have told him a by-law will be required, and he will have to pay the costs of that. If he doesn’t, then he will have to reinstate the common property. Things change, many strata schemes are becoming more aware of the need to manage risks and put measures in place to protect the owners as a whole.
In this case, the EC is doing the right thing – adammark should focus on getting what he wants and meeting the reasonable requirements the EC has indicated it will impose. As I have said previously, this could also be used as an opportunity to bring the other two lots into line, and adammark should suggest that.
You need to bear in mind that an owner has to consent to an exclusive use by-law that binds them. So in this case the other two owners enclosed their balconies with the approval of the EC, but without a condition that a by-law be put in place. Ideally, that should have been a condition, but it wasn’t. You can’t really blame those owners, it was up to the EC. From what adammark has said, the owners didn’t do anything wrong, they sought approval and they got it, the work wasn’t illegal.
The EC/OC could go back to those owners and say they now want to put in a by-law to cover those balconies, and the owners could refuse consent. If they did that, then the OC has limited recourse although they could try and compel them through the CTTT, not sure how that would go.
So now the EC has changed and the policy has changed. The previous approvals aren’t really relevant, and I don’t believe that saying the other owners didn’t have to have a by-law will help in getting approval. If you want to get approval, then agree to the by-law as it is not an unreasonable thing to ask. At the same time, suggest that for consistency’s sake it would be a good idea to have a by-law covering all three balconies, spread the costs and hope that the other owners consent to the by-law.
That is often hard to determine. Take when your meeting was held last year, if it is more than a month after that date this year, then in all likelihood they are not in compliance with the Act.
AGMs are usually held at around the same time each year, because otherwise they wouldn’t meet the requirements. Of course in some cases it can get seriously out of whack, but as a starting point use the date of the meeting last year.
I think you would be mad not to be on the EC. The level of your involvement and the role that you play is to a large part up to you, for example you don’t have to be secretary or Chair unless you want to be. The thing is, if you are on the EC you will know what is going on, and you will have a say in decisions that are made.
I have been on the EC of our building for the whole time I have lived here, and I am the secretary. There have been times when I have wanted to throw in the towel – I have been abused and insulted, I have been landed with piles of work that nobody else can be bothered doing, only rarely have I been thanked for progressing things. I don’t really care any more, I am protecting my asset.
1. On the face of it, there doesn’t seem to be any reason why the EC would object to your application. The other two enclosures having been enclosed with approval would likely be relevant, if approval for yours were refused and you had to take it further.
2. The EC/OC probably should have required by-laws for the other two balconies, but that isn’t necessarily relevant to you. It is prudent to require a by-law in these type of circumstances, and in those circumstances the person carrying out the works is usually required to pay for the by-law. The works aren’t benefitting the other owners, so therefore you should pay for the exclusive use by-law which presumably will provide that you are responsible for ongoing maintenance etc. Enclosing the balcony benefits you, it doesn’t benefit anyone else.
3. How long is a piece of string? I would use the frequency of the EC meetings as a guide. Provided you give them all the necessary information/specifications etc., if there is no progress after a couple of months then I would start asking why.
More generally, you might want to suggest that an exclusive use by-law be drawn up covering all three of the enclosed balconies, i.e. yours and the other two previously approved. You say the EC has changed, so obviously their approach has changed, and they are doing the right thing. It could be worth pointing out that this gives them the opportunity to be consistent across the board, because otherwise the OC will be responsible for any maintenance of those other two balconies. If they agree, then the cost of the by-laws could be shared between the three owners.
If someone accosted every person visiting me demanding ID, I would have to think about my legal options.
I’m confused about that, subpara 4(2) of Schedule 3 says the OC must appoint someone to the vacancy, but there is no indication of how they are appointed/by whom. You shouldn’t have to go to the owners to appoint them, because that would be a general meeting, which would defeat the purpose, but on its face it’s unclear.
2) When a vacancy occurs in the office of a member of an executive committee (otherwise than by reason of subclause (1) (d)), the owners corporation must appoint a person eligible for election as a member to fill the vacancy. Any person so appointed holds office, subject to this clause, for the balance of his or her predecessor’s term of office.
There is no requirement under NSW legislation to send out minutes within a certain time. My experience has been that they aren’t sent at all, but that is not necessarily the case for all schemes. There is a requirement under the Act that the minutes must be sent with the notice of the next GM, unless they have already been provided.
Of course minutes are not set in stone until they are confirmed at the next GM, so to that extent they are subject to change.You don’t have to be an owner to be on the EC, you just have to be nominated by an owner. So there is no issue with a non-owner being on the EC, either on a temporary or more long-term basis, i.e. as a result of appointment at the AGM. However note that you can’t have an owner being on the EC and also someone nominated by them, i.e. you can’t double dip.
In the case of a casual vacancy, the person appointed to fill that vacancy has to be appointed by the OC.
Refer Schedule 3, subpara 4(c):
2 Constitution of executive committees for strata schemes with more than 2 lots
(4) A person is not eligible for election as a member of an executive committee unless the person is:
(a) an individual who is an owner,
(b) a company nominee of a corporation that is an owner, or
(c) an individual who is not an owner but who is nominated for election by an owner who is not a candidate for election.
Paul and mattb are right, the standard (in NSW) is that trees of a certain height and width are subject to Council Preservation and can’t be lopped/trimmed or cut down without Council approval. In my area the size is a spread of 3 metres or more or height of 5 metres. This doesn’t apply to declared weeds.
Blocking views is irrelevant and if the OC had done anything to the trees they could have been reported to the Council for a breach.
I’m surprised a lawyer would send a letter like that.