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joball – despite some obvious unknowns, I’ll try to address your concerns in order and on the basis that the matter is as required being determined at a General Meeting of the Owners Corporation:
1) If it’s the repairs to Lot 3’s roof that the proposed special levy is intended to fund, then presumably the Owners Corporation (O/C) has received advice about the need for and the timing of those repairs that overrides whatever was referred to in the Strata Report that you obtained. So that advice should be provided with the Agenda for the General Meeting.
2) See above.
3) Presumably the repairs already made to other roofs were as a result of some damage that’s progressively arisen over time as opposed to as a consequence of a point-of-time event such as from a storm, and as such they’d not be covered by the O/C’s building insurance.
4) As you’ve advised that the proposed work is to replace the damaged roof, then it should be paid for from the Sinking Fund, but in the event that it’s actually a “fix” (i.e. a repair) then funds should be sourced from the Administrative Fund. It’s largely irrelevant really, as a combination of monies from both Funds may be used provided the O/C determines within three (3) months of that happening how, and within what timeframe such a “borrowing” from one Fund to the other will be repaid.
5) I’m not aware of any formal means by which a Proprietor’s term of ownership can be used to “adjust” their contribution to a special levy that arises post-settlement. As with all levies, Proprietors’ contribute in accordance with the units of entitlement of their Lot/s, but you could of course make your case at the Meeting in that regard and see how it’s received.
6) It’s up to those voting at the Meeting (including by proxy) to determine the amount of the special levy, over what term it will be collected, and by what installment/s, but if after making your point/s at the Meeting you believe that the decision taken is unreasonable in any respect given all the considerations that you’ve raised here, then you can apply for mediation of the issues by the NSW Dept. of Fair Trading, and if that doesn’t satisfy then you may seek Orders in the NSW Civil and Administrative Tribunal to have the amount of your contribution and/or the timing of its collection varied under the provisions of Sect 149 of the NSW Strata Schemes Management Act (SCMA).
7) Strata Schemes having >100 Lots must obtain at least two (2) quotations for works having a cost >$30,000.00, but beyond that and irrespective of the numbers of Lots in the Scheme, it’s up to those Proprietors in attendance at each Annual General Meeting to impose such requirements and any around the ability of their Executive Committee to routinely commit expenditure on budgeted items without referral to all Proprietors (at a General Meeting).
Regarding your note, Sect 75A of the SSMA requires O/C’s to prepare a rolling plan of anticipated works and the estimated cost and timing of those over a ten (10) year period, and to review that after five (5) years in order to ensure that adequate funds are collected and held in its Sinking Fund to meet those costs. Of course that doesn’t account for unforeseen incidents, but that’s what insurance is for!
One final point from me ……. if the O/C has insufficient funds to undertake the works in its preferred timeframe, then with interest rates at historically low levels, borrowing by the O/C may be a better option than it raising a special levy. There are specialist firms that both investigate the viability of and provide this service, of which THIS is one (and a sponsor of FlatChat).
Hope all that helps.
AJP – I’m sorry, but I disagree and consider that your Strata Manager is correct. What do you think would result if your Owners Corporation accepted your suggested approach to locks on first floor windows, and after some change to your Plan’s occupancy profile a child was able to open wide just one of those normally closed windows and an accident ensued?
I don’t know how many windows in the two-storey Lots are involved, but as compliant devices that can be fitted without tools retail from around $5.00 each, why would your O/C want to risk not doing precisely as the Act prescribes?
So by all means tell your Strata Manager to obtain some more quotations, and if votes by the Owners of the single-storey villas carry a resultant Motion, then just thank them sincerely because they’ll be contributing via their Levy Contributions to the costs of devices for which they’ll likely derive no benefit!
Boronia – after reading all the posts here I don’t know what’s confusing about the term “all windows” if read in conjunction with the following diagram as produced by the NSW Department of Fair Trading:
jliv – I must admit that I at times become quite peeved when so many people ask for and receive really comprehensive and helpful advice, and then very few of those actually come back to tells us how they found that advice, if they acted upon it, and most importantly how everything worked out for them; so thanks muchly for taking the time to do that and to provide some feedback.
Mojo – not wishing to complicate an already complicated issue, but with reference to the following comment by Jimmy T……
There is also the issue of the new structures potentially being attached to common property, which includes drilling bolts into the floor and adjoining walls, and who takes responsibility for their maintenance.
… here’s a little relevant knowledge.
Any additions or alterations to or the erecting of any structure on the Common Property such as the existing grease trap, the ducting, and the proposed extension above the carspace that will presumably be attached to the ground and possibly to the walls of the adjacent garage, and the granting of an exclusive use privilege each require a Special Resolution as opposed to an Ordinary Resolution at a General Meeting.
The Motions must be worded in that way (i.e. by stating that a special resolution is required), the significance being that for a Motion of that type to pass, ≥75% of those voting (including by proxy) need to vote in favour, with the percentage calculation being based on their collective lot units-of-entitlement (UOE) and the aggregate UOE of all those voting (i.e. a “poll vote”).
Additionally the Motion must be accompanied by the draft of a Special By-Law prepared at cost to the proponent to amongst other things make them (i.e. the current and all future Owners of the restaurant) and not the Owners Corporation (O/C) responsible for the on-going repair and maintenance of whatever it is that she’s adding to or erecting on its Common Property, and incorporate the basis upon which she’ll pay the O/C for the privilege of that exclusive-use.
That was why Jimmy commented that you’d need >25% voting against those Motions to defeat them, so you’d best do some more informing and/or lobbying to either obtain sufficient numbers of attendees or their proxies to achieve that threshold and to thereby defeat the Motions, at least until such time as Owners are better informed about what’s being put to them.
Section 65A of the Strata Schemes Management Act (SCMA) applies.
Finally (unless you need more info at a later time) any Owner, or you with the written authorisation of an Owner, can for a small fee inspect and if necessary make copies of the O/C’s records. That should both rattle the cage and be informative should you seek to inspect the Minutes of the General Meeting/s that approved of the Owner’s DA and Application to Sydney Water for the wastewater connection through the grease arrestor.
Section 108 of the SCMA applies.
n2s – gees that’s a bit extreme given you don’t yet know if the Motion will pass, how much the annual payment for your exclusive-use privilege will be, and whether the Owners Corporation will want or be able to justify / substantiate how it derived that amount!
Our learned Administrator (JimmyT) recently offered this advice to someone who was being harassed by a couple of influential Owners…..
The best answer is “go ahead – and my lawyer will make sure you pay full costs when you lose! “
In your case the “go ahead” relates to those two (2) Owners continually placing a particular Motion on General Meeting Agendas, but in my opinion the above advice is still relevant, particularly as other Owners will eventually wise-up and put a stop to such vindictiveness.
Easy for me to say, but stick it out!
Strata Monkey – no matter whether your possible use of the Common Property is by way of an exclusive-use privilege or by the purchase of that, in NSW the decision one way or the other must be made by way of a vote on a Motion by those present (including proxies) at a General Meeting of the Owners Corporation (O/C).
A purchase of Common Property (an conversely a sale of it by the O/C) requires a unanimous vote, and the granting of an exclusive-use privilege over it requires a decision in favour by ≥75% of those voting as determined from the units-of-entitlement of their lots (i.e. a “special resolution” by way of a “poll vote”).
Both options would require an adjustment to your Lot’s “market value” to be professionally determined at your cost so that its units-of-entitlement and therefore your Levy Contributions could be also adjusted (⇑) in the case of a purchase, and as the basis of a possibly equivalent annual payment to the O/C to account for the “benefit” derived from an exclusive-use privilege.
A purchase would additionally necessitate at your cost the re-drawing the Strata Title Plan to enable a Strata Sub-Division to be Registered with NSW Land & Property Information (incorporating the former Land Titles Office), whereas the exclusive-use option would require at your cost the drafting, lodgement, and Registration of a Special By-Law setting out the nature of that use and the Conditions arising, including a mandatory one making you and subsequent Owners of your Lot (and not the O/C) entirely responsible for all on-going repairs and maintenance of the area, and typically one requiring the payment of an annual fee to account for that “benefit” arising.
A purchase of the Common Property makes it part of your Lot and therefore yours and that of subsequent Owner/s, and an exclusive-use privilege cannot be rescinded by the O/C without the prior written consent of you and subsequent Owner/s.
So as Peter observed it’s much in a muchness really, and issues around the certainty or perhaps the comfort of “ownership” as opposed to permitted use by way of “privilege” aside, the exclusive-use option is the easier and lesser-cost option.
mojo – a comprehensive and informative post as usual from Jimmy, and even though you’re a tenant you can, provided your strength of conviction is maintained, action most of what he’s suggested in order to guide those naïve Owners through the process.
They’re lucky to have you!
n2s – so now that those few of your fellow owners have failed in their attempts to declare your deck illegal (ref. a previous post), they’ve now decided that as it (or a different area?) is part of the Common Property then you should be paying for the privilege to exclusively use it.
I can help wondering what you or past Owners of your lot have done to raise the ire of these individuals, but the success of their proposal would first of all depend upon the outcome of the vote on a corresponding (ordinary) Motion put at a General Meeting, but more so upon the status (i.e. presumably Registered on the Strata Title) and the wording of the special by-law that grants exclusive use of the area to Owners of your Lot.
Such special by-laws (SBL) granting a Lot Owner “exclusive use” over an area of the Common Property must include a provision about who it is that’s responsible for the on-going maintenance and repair of the area, and you say that’s you as the current Owner, and typically includes a provision that either states the amount of any payment that such an owner will pay for the privilege of “exclusive use” and at what frequency, or that the Owners Corporation may from time-to-time determine that payment; your Plan’s SBL provides for the latter option (right?) that by the way isn’t a “special levy”.
Whilst your O/C would need to substantiate the basis of such a payment, typically from the professionally determined increase in the “value” of your Lot that’s resultant from the privilege, and justify the reasons for it only now being applied (after 40 years), and would perhaps need to calculate an adjustment to your normal Levies to account for it double-dipping on the costs of the area’s maintenance and repairs (but only by you), IF all of the above is satisfied and the Motion passes the vote, then whilst your privilege cannot be rescinded without your written consent, the O/C could indeed enact that condition of the empowering SBL.
So short of lobbying other Owners prior to the vote and insisting upon that documented substantiation and justification that I’ve mentioned before paying a cent (if it comes to that and depending upon the amount), your only recourse in the case of the Motion passing is to seek to have the decision Mediated and if unsuccessful Adjudicated possibly under Sect 149 if the Motion refers (incorrectly) to the payment as a “special levy”. Your success in my opinion would largely depend upon how comprehensively the O/C can prove that it’s ticked all the boxes (and of course the foibles of the Tribunal).
Division 4 of the NSW Strata Schemes Management Act (1996) applies.
I recon that someone should make an application for the statutory appointment of a Strata Manager, and then sell-up and buy a torrens titled property!!
ukirak – it really makes things difficult when you pose this same question in another forum HERE and then when you don’t get a response, you post again in a different forum.
I suggested before that you go to mediation in advance of the AGM and it appears that you’ve commenced that process (right?), and now that the Meeting is imminent and there’s a Motion on the Agenda that’s likely to uphold the (model) pet by-law, you’re anxious about the outcome.
The Motion that you’ve quoted in your other post is poorly worded in my opinion, because only you have sought the Owners Corporation’s consent to keep a dog at your Lot and yet the question being put is all encompassing “to permit dogs to reside within the lots of the strata scheme”.
In any case, the Motion that’s on the Agenda doesn’t seek to change the existing Pet By-Law (and it wouldn’t matter if it did as mediation is under way) but is rather to decide whether or not to be “reasonable”. So it’s an ordinary resolution (51% to pass) that according to you will be decided in the negative, in which case the Owners Corporation (O/C) and its Executive Committee (E/C) will have to justify their decision at mediation won’t they? Should mediation fail, then it’s off to adjudication where a ruling “trumps” any contrary By-Law.
Read the responses to your other post and this one, and particularly the bit about getting all your facts together, including about the all-encompassing and poorly worded Motion that gives owners the wrong impression about what’s actually before them, about the E/C Meeting to which you weren’t invited, about the absence of any precedent by virtue of an consent to you as most Lots are rented and their owner / landlords would themselves need to consent to pets (and apparently none would) before anything comes near the E/C, and how all that amounts to the O/C behaving unreasonably (and perhaps deceptively).
wildbear – here’s what I advised almost 3 weeks ago in post #2, so do what your Lawyer’s advising; get the service connected and if you don’t get or want the easement then rely on this……
IF the Owner of the Lot ever became obstructionist you could apply for a Utility Access Order under the provisions of the Access to Neighbouring Land Act (2000), or alternatively, at a stretch the O/C could itself gain access to have such maintenance or repairs undertaken under the provisions of Sect.65 of the Strata Schemes Management Act (1996) provided it then invoiced the costs to you.
Merrick – if the proposed works on the Common Property will involve any alteration or addition to, or the erection of any new structure on that property, then that requires a special resolution as opposed to an ordinary resolution, the difference being that for the former to pass at least 75% of those entitled to vote at the Meeting (including proxies) would need to do so in favour, with that percentage being determined from the units of entitlement (UOE) of those voting in that way and the aggregate UOE of all those at the Meeting (i.e. a poll vote).
So if the Motions that you’re concerned about are shown on the Agenda as ordinary resolutions requiring a min. 51% to pass, such as “That the Owners Corporation resolves etc” as opposed to “That the Owners Corporation specially resolves etc”, then they’re out-of-order and any vote on those would need to be deferred (i.e. to another General Meeting); Schedule 2 Clause 35(2) of the Act applies.
This may be another way to defer any decision until such time as Owners have an opportunity to more properly consider the proposal; Section 65A (1) of the Act applies.
nellv – before your post drops off the bottom of the list, I’ll offer some advice.
It’s the Owners Corporation and not you who engaged and is presumably paying for the builder’s services, so it’s up to it to resolve any consequent issues such as the one with the waterproofing of your bathroom.
What you need to do is to get yourself out of the middle, and to insist in writing that your Owners Corporation (O/C), via its Executive Committee and its Strata Manager, deals with the builder and their minions to have your problems resolved within a timeframe that’s acceptable to you.
If you’ve put that in a formal way to your E/C Secretary and Strata Manager already and its documented, then you can immediately apply to have the matter Mediated, and if that doesn’t achieve an acceptable outcome then you can apply for Orders to force the O/C to exercise a function for which its responsible (and for which its accepted responsibility by virtue of its special levy) on the grounds that it hasn’t done so within 2 months of your request regarding the repairs to your Lot; see Sect 138(2)(b) of the NSW Strata Schemes Management Act (1996).
Finally, with regard to your question about the O/C absolving itself of any responsibility to maintain an area of the common property in your Lot (i.e. within your bathroom), YES it can resolve to do that by way of a 75% majority vote at a General Meeting, and particularly so if you engage another builder to attend to your long-awaited repairs; so however frustrated and annoyed you become DON’T DO THAT!