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Hi Sarah
To formalise the use of this part of common property you may want to arrange for an exclusive use by-law assigning the rights to this part of the common property to you.
Firstly, you should approach the owners corporation to see if they are willing to assign you the rights to this part of common property.
If the owners corporation are happy for you to have the rights to this space you can have an exclusive use by-law prepared to put forward at a general meeting of the owners corporation.
The exclusive use by-law must be drafted accurately and clearly. The by-law can refer to the strata plan to describe the location and measurements of the common property area to which exclusive use rights are being requested.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500Hi Lyn,
We understand how important it is for owners to be able to keep their pets, especially when they have done all that is reasonable to ensure that they are complying with the by-laws in their strata community.
Section 48 of the Strata Schemes Management Act 1996 outlines the steps to make an amendment effective –
(1) An amendment or repeal of a by-law or, a new by-law, has no force or effect until:
(a) the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900 , in the Registrar-General’s office, and
(b) the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.
(2) A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.
Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500
There are many ways to formalise the use of part of the common property and all require the consent of the owners corporation. The most common methods to formalise use include –
- Obtaining permission or a licence from the owners corporation to use that part of common property
- Arranging for a lease of that part of common property
- Arranging for an exclusive use by-law assigning rights with respect to that part of the common property
- Acquiring freehold rights to that part of common property via strata plan of subdivision.
When should an “exclusive use by-law” be used to formalise the use of part of the common property?
An owners corporation can confer to an owner of a lot –
1) a right to exclusively use and enjoy a specific area of common property which other owners are to be prohibited from using, or
2) a special privilege to undertake an activity or make an installation in respect of a special area of common property, or
3) a combination of both.
However, a special privilege conferred would not normally permit that owner to construct any building on part of that common property land.
An exclusive use or special privileges by-law may be conferred only on the owner of the lot and operated for the benefit of and is binding upon the owner for the time specified in the by-law.
All concerned owners must consent in writing to the passing of an exclusive use by-law in relation to common property before the by-law motion is considered at the general meeting.
A special resolution needs to be passed at a general meeting of the owners corporation to pass the by-law.
For an information sheet on this topic, please email: simone@teyslawyers.com.au
Kind regards,
Simone Balsara
Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500
Hi Lyn,
If you entered into the scheme at the time when Option A was still operative then the owners corporation must reasonably consider your request to keep your pet on premise.
Steps in contesting the owners corporation's refusal –
1. You should consider is whether your original application to keep your pet gave a full description of the pet so that the owners corporation was given all the information required to consider your request.
2. If they continue to refuse your request, you can lodge a compulsory mediation application to negotiate a solution.
3. However where mediation is unsuccessful, you can lodge a CTTT application requesting an order of an Adjudicator under s150(4) to keep your pet. You can also request an order revoking the amendment to by-law 16 under s157.
There have been many similar cases in the CTTT which have been successful and a by-law that bans pets is arguably invalid and unreasonable.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500Designated visitors parking areas generally result from one of two sources –
1. Local council requirements as one of the conditions of the development approval, or
2. A designated area of common property for visitors parking passed by the owners corporation under a section 47 by-law.
JimmyT is correct – your by-laws may specify whether the visitors parking area is for visitors and invitees of residents or retail tenants.
The owners corporation can pass and enforce a by-law restricting the use of the designated visitors parking area, define the meaning of visitors and include enforcement provisions to avoid contravention.
For an information sheet on this topic, please email me: simone@teyslawyers.com.au
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500
https://www.teyslawyers.com.auHi Lyn,
This is a very common problem and we have recently been dealing with a very similar case.
Where an owners corporation is governed by model by-law 16 (Option A), an owners corporation must not reasonably withhold its approval. An owners corporation is obliged to consider any request for permission to keep an animal on its merits.
It is not open for an owners corporation to maintain contrary “policies” or “house rules”. Such “policies” have no effect and only registered by-laws can be enforced by the owners corporation.
If an amended by-law to prohibit any animals has been passed, you may be able to revoke the amendment under s157 of the Strata Schemes Management Act on the basis that it is unreasonable and oppressive. There is also High Court authority, which questions the validity of by-laws that are prohibitory rather than regulatory.
We hope that this helps. We know how important it is to be able to keep your pet on premise and we believe that a by-law prohibiting animals is invalid.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500This is so true Jimmy. It can be difficult to get such a by-law passed by special resolution at a general meeting.
Firstly, you would require a quorum at the meeting i.e at least one quarter of all lot owners must vote. Then you would require at least three-fourths of all lot owners to vote in favour of the motion before it can be passed.
But as you have said there is a lot of support out there for making apartment blocks smoke-free. Smoke-free living is now part of broader social and community standards.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.auSometimes owners corporations and strata managers ask for more contact details than are necessary. All that is required is the owners name, address for service of notices and tenant name and agents details if the apartment is let.
The real point is that whatever personal information is collected has to be maintained under the principles set out in the Privacy Act and all owners corporations need to have their own privacy policy under that law and deal with information only in accordance with that policy.
Kind regards,
Simone Balsara
Lawyer
TEYS Lawyers
The Strata Law Experts
02 9562 6500simone@teyslawyers.com.au
https://www.teyslawyers.com.au
This is a very strange by-law amendment, especially since the owners corporation have included conditions in the animals by-law on bicycles which are clearly not pets.
Section 43 of the Strata Schemes Management Act 1996 (SSMA) states what by-laws can provide for –
43 What can by-laws provide for?
(1) By-laws may be made in relation to any of the
following:
safety and security measures
details of any common property of which the use is
restricted
the keeping of pets
parking
floor coverings
garbage disposal
behaviour
architectural and landscaping guidelines to be
observed by lot owners
matters appropriate to the type of strata scheme
concerned.
(2) Subsection (1) does not limit the matters for
which by-laws may be made.
(3) The regulations may prescribe model by-laws which
may be adopted as the by-laws for a strata scheme.
(4) A by-law has no force or effect to the extent that
it is inconsistent with this or any other Act or law.
This by-law, on its face, may be challenged under section 159 of the SSMA as being invalid to the extent that it restricts lot owners from keeping their bicycles in their premise, however the by-law may be able to restrict a lot owner from using their bicycles on or in common property areas.
Convening a meeting to revoke the agreement is often the most difficult step where the owners corporation fails to secure the agent’s cooperation. In this case the owners corporation can hold an executive committee meeting and pass a motion to convene a EGM with the agenda to consist of a motion to revoke the appointment of the strata manager.
A general meeting ordinary resolution is required by the Act when appointing a strata managing agent or revoke a strata managing agent's appointment
If this resolution is passed, the secretary should send a letter to the agent informing him or her of the decision. If the agent fails to convene the meeting an interim order may be sort from an Adjudicator under s138 or 170 requiring the agent to convene the meeting.
If the order is not granted, an owners corporation can obtain their records and property from the agent under 105 of the SSMA and then convene a EGM to pass resolutions revoking appointment.
Kind regards
Simone Balsara
livingwell said:
Hello,
I am looking for the lawyers who have expirience in Strata law
specifically neighbour noise (music,loud talking on the balcony) to advise me on the ways to deal with it.
Or maybe someone can advise me on what to do.
I have searched the net on this issue however before I do something I need to take legal advice.
I have phoned few lawyers and it seems that they didn't really have knowledge
on this issue and one lawyer said -It is loud for you and not loud for him.This answer was alarming.
I have to mention that owners committee/managing agent refused to help me with that and told me to deal with it on my own.The problem is that the way appartments are positioned it disturbs only me.
I live in Sydney Eastern suburbs.
Thanks,
Joe
Music is food for the soul…but not everyone may like your music!Apartment living is about respecting other people and owners have a right to “peaceful enjoyment” in their own homes.Where a strata scheme has adopted the standard by-law 1 from schedule 1 in the Strata Schemes Management Act 1996 (SSMA), establishing that a particular noise is “likely to interfere with the peaceful enjoyment” of another lot owner is often difficult because determining whether a noise amounts to an “interference” is largely subjective. The SSMA does not prohibit the creation of noise nor does it specify any particular decibel reading will render the noise an interference.If you have approached the noisy lot owner and the owners corporation are not willing to help you, you may want to lodge a s138 application for an order to restrain a breach of by-law 1. Note that prior to adjudication, formal mediation is required.