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If your Plan’s in NSW and it was Registered after July 1974, then the balcony door is Common Property and YES you should obtain the prior consent of the Owners Corporation (O/C) before fitting your cat door to its door, and conversely if your Plan is pre-1974 then the door’s yours and you can go ahead change it in the way that you propose provided the work’s done by a properly qualified person.
Strictly speaking, where required the above consent should be granted via a General Meeting, but if the timing of that doesn’t meet yours, then as the works comprise a relatively minor change to the Common Property, perhaps put the proposal in writing to your Executive Committee together with details of the tradesperson who’s doing the work, a copy of their liability insurance, and an undertaking to thereafter accept responsibility for the repair and maintenance of the modified balcony door and to restore it to its original state prior to any future sale by you of the Unit.
That would satisfy me, but then I don’t know how your O/C operates.
pend1lis – by way of a summary of everything that’s been said so far, you have a problem, and that’s an understatement!
I’ve drawn that somewhat simplistic observation on the basis of your advice that:
- The Special By-Law (SBL) that has been Registered grants exclusive use, and a SBL of that type cannot be easily amended or revoked without the prior written consent of those two (2) Owners as its beneficiaries. I say “easily” because in the absence of those Owners’ prior consent, the only other option is for you or the Owners Corporation (O/C) to seek Orders to do that under the provisions of Sect 158(b) of the NSW Strata Schemes Management Act (SCMA), and….
- The SBL that hasn’t been Registered is invalid/ illegal/unenforceable, but as soon as you or the O/C takes any action to amend or revoke it, you can bet that it will be quickly lodged with NSW Land & Property Information for Registration, and……
- The fact that the wording of neither SBL is in the terms put to and Specially Resolved at the General Meeting, and…..
- The fact that even with the Owners’ prior consent, in order to amended or revoke those SBLs the O/C will still have to convene a General Meeting, where the Agenda will need to include the proposed new or amended SBLs, and a vote by ≥75% of those in attendance, including proxies, will be required to pass a Special Resolution that brings into being those new or amended documents, where that percentage is determined from the lot units of entitlement (UOE) of those voting and the aggregate UOE of all those in attendance; again including any proxies.
I assume that you’re not the only Owner who can now see the problems with all of the above, so in that case I’d firstly suggest that you do some lobbying if only to ensure that like-minded Owners are on-side, and that’s particularly so for the Secretary who, unless you have >25% of Owners by UOE on-side to petition for a General Meeting, will themselves have to convene that Meeting in order to revoke the existing SBLs, and to obtain an agreement by a simple majority vote to obtain some independent legal advice on the drafting of new SBLs from someone who’s strata-savvy.
When all that’s done, there will need to yet another General Meeting to vote on the new SBLs, unless of course there’s an allocated budget for legal advice and the Executive Committee is prepared to obtain that in advance of the first General Meeting so that everything can be wrapped up at that time.
As I said at the outset, you have a problem, but in my opinion your O/C cannot leave it unresolved as apart from the fact that what’s Registered and presumably what’s ready for Registration is “drastically different” from what was resolved at the past General Meeting, the issue with charging for access to the lifts is just the tip of the iceberg in terms of what’s yet to come!
Your O/C needs some strata-savvy legal advice with all this, so do a bit of searching on the ‘net and perhaps also contact one of FlatChat’s sponsors HERE.
I assume that you’ve asked for information about how the works were approved and funded, and that’s the reply that you’re waiting on.
In the absence of that reply, you have two (2) choices which I suggest you address in order, and in accordance with the provisions of the Strata Schemes Management Act (1996):
- If your current request wasn’t formally made under Sect 108, then you need to do that by stating precisely what records you wish to inspect, and by including the prescribed fee of $31 in favour of your Owners Corporation. As you’ll see from that Sect, depending upon the circumstances the O/C then has between 3 and 10 days to permit you to make your inspection.
- If the above has been done or is now done, and the 10 day deadline has passed, then you need to formally advise the Secretary of your Executive Committee (cc Strata Manager) that unless the information that you’ve requested is supplied within say 48 hours, then you’ll be seeking Orders under Sect 156.
The process for seeking Orders is shown HERE.
You mentioned in an earlier post the “we” would like the balconies removed, and if that collective reference was about you and some other Owners, then start getting as many of those as you can on-side to join you in the inspection and in an Application under Sect 156 if that becomes necessary.
Any of the Councils’ websites should provide sufficient proof, such as in the link to the City of Sydney’s website that tharra provided in post #2, where the following statement is included there:
Fire Safety Schedules list the measures required to be installed and the standard they need to achieve. A Fire Safety Schedule can be issued:
- by the City or an accredited certifier,
- by the City with a fire safety order,
- by the City in some cases with a development consent, such as for a change of use in an existing building.
A Fire Safety Schedule is only applicable if any of the above occurred after 1988.
Additionally, the significance of the date of 1st July 1988 is that it’s when Part (#59) titled Maintenance of Fire and Other Safety Measures was added to Ordinance 70 of the NSW Local Government Act (1919), under which Local Government was for the first time given the ability to require “essential fire safety measures” and “annual compliance certificates” within the Conditions of their Consents for Development Applications.
The above has now been superseded by Reg. 182 of the NSW Environmental Planning and Assessment Regulation (2000).
You mentioned in your last post that a recent fire safety audit inspection would make sure that your “unit is compliant”. I assume you meant so that the Common Property would be compliant, but again I wonder that if your Plan doesn’t have a Fire Safety Schedule (FSS), what fire-safety related items the Inspector is auditing, how they decide whether those get a pass or a fail, and how they determine what if any additional items are required.
Finally, as I mentioned before, the absence of a legal requirement to undertake annual inspections against a FSS doesn’t mean that your Owners Corporation (O/C) shouldn’t regularly cast a collective eye around its Common Property to check for fire-related hazards, or even that it engages a properly qualified person to do that against a scope-of-work provided by the O/C; but that’s prudent, not compulsory action, and the outcome is not externally reportable (i.e. outside of the O/C).
I think that this topic has just about run its course now; don’t you?
jliv – quite frankly I think that you’re being a pit precious. One of the reasons that you rented your Unit in the building was probably because it had security, and now that the new Managers are doing what the Owners Corporation wants by ensuring that only residents and bona fide visitors have access, you’re dissatisfied.
All of that said, provided you approach them reasonably the Managers and their Staff have no right to be discourteous in their dealings with you, and as they’re employed by the Owners Corporation of which your Landlord is a member, any complaints that you have should be raised with your Landlord via their Property (Rental) Manager.
Quiet enjoyment is not relevant, and you have no other grounds to seek redress via the NSW Civil & Administrative Tribunal in my opinion, but if you really don’t like the environment in what sounds to me like a well run Building (at least from the perspective of protecting the safety of its residents), then have a chat with Tenants NSW who may have a different opinion; although I doubt it.
justsaying – in NSW Sect 80A of the Act automatically restricts Executive Committees’ expenditure to Items against which a Budget has been determined at the last AGM, and further restricts any expenditure on any Item that’s in excess of that budgeted amount to 10%.
So at the next AGM, when the compulsory Motion arises about whether or not your Owners Corporation wishes to ensure “that any matter or class of matter is to be determined only by it at a General Meeting”, a simple majority vote NOT to remove the Sect 80A restriction and an insistence on compliance with the provisions of Sect 80B for any proposed expenditure >$30K should get the outcome that you require.
One last modicum of advice – when it comes to budget time try to ensure that catch-all Items such as “General Repairs” into which almost any expenditure can be dumped are avoided. If you know on what specific items expenditure is planned in the coming year, then insist that they’re listed as specific items with a corresponding budget, and if you don’t know at the time when the Agenda is distributed, then find out before the Meeting so it can be nailed-down as an amendment to the proposed budget at that forum.
Why do you want or require a Special By-Law?
Again I’ll assume that RL is in NSW, where the Legislation that enables Councils to issue a Fire Safety Schedule as part of its Development Consent (DC) commenced in July 1988, so Multi-Unit Developments that were completed prior to that date are exempt from the requirement to undertake and Annual Fire Safety Inspection.
RL – The Fire Safety Schedule (FSS) that I’ve referred to contains the list of items to be annually inspected, so it stands to reason that if a strata building didn’t have a FSS at the time of Council’s DC, and there’ve been no Building Applications since lodged at the Plan where a FSS may be issued, and there’ve been no incidents where Fire & Rescue issued a FSS as part of a Fire Control Order, then there’s nothing to annually tick-off and report upon to Council – that’s why the link that tharra provided also says “A fire safety schedule is only applicable if any of the above occurred after 1988”.
So assuming no FSS, the advice provided by your first Strata Manager was absolutely correct, which doesn’t mean that your Owners Corporation (O/C) doesn’t cast a collective eye around its Common Property to check for fire-related hazards or even that it engages an experienced person to do that; but that’s prudent not compulsory action, and the outcome is not reportable outside of the O/C.
Be aware that some Strata Managers are guilt-tripping O/Cs into having fire safety audits undertaken, so if yours decides to go down that path, in the absence of a FSS it would be well advised to first obtain the Contractor’s Scope-of-Work (i.e. what precisely are they checking in the absence of a FSS) as well as a firm price.
KP’s right.
With reference to the NSW Strata Schemes Management Act, have a look at Sect. 43(4) and more particularly Sect. 49(2).
In the first case, you have a ruling under Chapter 5 of the Act, and as the proposed amendment to your Plan’s existing Special By-Law would render it inconsistent with that ruling, the amendment would have no effect; so it’s dead!
In the second case, the Adjudicator’s ruling is effectively a By-Law, and so that cannot be amended except by a unanimous resolution of those present at a General Meeting; so it’s buried!
So let the vindictive buggers put their half-smart Lawyer’s amendment to the vote at the General Meeting, and when you vote NO it is, with apologies to the Prime Minister, cremated!
By all means do that, but remember you’ll need the same 75% (minimum) vote in favour in order to amend or repeal the existing By-Law, and that even chipping away at bathroom tiles and any similar activities that involves common areas of a Lot and more generally (such as moving materials about in the carpark or in an elevator) additionally requires the prior written consent of the Owners Corporation, that if granted could impose different hours of work under the provisions of the Strata Schemes Management Act, which of course would overrule the By-Law.
Also consider that any other Act of Parliament, as a “superior law”, would overrule your Plan’s By-Law, including the Protection of the Environment Operations Act which limits noisy works on Saturdays to between 8am and 1pm and prohibits such works altogether on Sundays and Public Holidays.
Frankly, I’m surprised that the preamble to your Plan’s suite of By-Laws doesn’t state that they’re limited by the provisions of any and all superior laws that may from time-to-time apply!
On the assumption that the vote to create the Special By-Law (SBL) was by a minimum of 75% of those present at the AGM being in favour, and it’s been since Registered with NSW Land & Property Information (incorporating the old Land Titles Office), then the only means to amend it is by way of another 75% vote in favour (of doing that) at another General Meeting provided the current beneficiaries of it agree in writing to that amendment.
Conversely, if the SBL didn’t achieve that minimum 75% majority, and/or it’s not Registered, then it doesn’t exist and those two (2) Owners have illegally changed and/or added to the Common Property and unless they agree to reasonable usage terms by other Owners, your Owners Corporation (O/C) could require them to remove their lifts.
Sounds to me like your O/C may have obtained poor legal advice in the first instance.
Pistonbroke said… Is this a risk that the BC wants to bear?
Well, as alinka‘s very first post advised that the Owners Corporation (O/C) had commissioned Reports from both a Structural Engineer and the local Council with both stating that “they couldn’t find anything to be wrong with the balconies”, then YES… I’d absolutely accept the risk, particularly as it appears the two Owners are merely using an as yet unsubstantiated safety issue as the means to have their balconies upgraded at the O/C’s expense.
alinka – if your Strata Manager is not the Licensee of the business, then make an appointment to see whoever it is that holds that position and make your complaint.
Depending upon how that goes, the peak professional body for Strata Managers is Strata Community Australia (NSW), so start with a call to them on (02) 9492 8200 in order to find out if your Strata Manager or their Licensee is a Member, and if either is, then have a read through the Code of Ethics and if what you allege that your Strata Manager is doing is contrary to any provision of that, then lodge a Complaint using the Form supplied with the Code.
As a last resort, contact the NSW Department of Fair Trading who’s responsible for the Property Stock and Business Agents Act under which the conduct of all Strata Managers is regulated; just don’t expect too much action as I’ve in the past found the Department to be largely impotent in investigating such matters.
alinka – as your Chairman previously ruled the original Motion out-of-order on the grounds that you describe in your post, and it would appear that the Motion to be put at the Extraordinary General Meeting (EGM) will be non-compliant with the Act on those same grounds (i.e. no evidence and incorrectly put), then it too should be ruled out-of-order; shouldn’t it?
Your Strata Manager is amongst other things engaged to ensure that the Owners Corporation acts strictly in accordance with the Law and not to just be a pawn to the Executive Committee, although perhaps that’s why they’re not going to attend the EGM.
My advice is to again seek to have the Motion ruled out-of-order on the same grounds as it was on the first occasion, and to advise the Chairman in advance of the Meeting that you and like-minded Owners will be seeking Orders under Sect 153 to have any resolution that may be made in favour of the proposal invalidated on the grounds that a vote in compliance with the Act (i.e. as a special resolution) would have resulted in that proposal being defeated.