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…..or point to the relevant provisions of the NSW Legislation where Committee Members may only be paid retrospectively, that is for the services that they’ve provided in the previous year and which can be substantiated before a General Meeting.
Dan – I could suggest that if you’d used wording even similar to that put forward in post #7 then the current impasse would have been avoided, but then that wouldn’t be very helpful would it?
So in an effort to be helpful …..
Your previous Strata Manager was doubtless aggrieved by the whole process, and that may have prompted their autonomous decision to rule an amendment to the Motion out-of-order.
Those present at the AGM could have challenged that decision and overruled the Strata Manager as it’s quite legal for a Motion to be amended “on the floor” so long as its intent is not altered (and it would not have been), but I’m afraid it’s too late now as the Meeting’s concluded.
So as you now suggest, an Extraordinary General Meeting is a means to specifically appoint the new Strata Manager, but an alternate means would be for an Executive Committee Meeting to vote on a Motion to do so and to concurrently execute the Agency Agreement PROVIDED the AGM Motion to appoint a person as opposed to the specific person most favoured by a majority of Owners was still properly resolved and minuted.
mary – your local Council will have specific requirements for new Developments, but those may not the same as those that were applicable when your building was developed, and I think you’ll find the OH&S requirements apply only to the people who collect the bins for emptying.
Obviously the bin area needs to be conveniently located and large enough to hold whatever numbers and sizes of bins your Council provides, and I’m aware of some generic requirements about the height of surrounding walls, about the area being vermin proof, about it being screened, and about there needing to be tap nearby (to hose out the area), but as Council’s current requirements would be of little or no relevance and as I suspect you’re concerned about the health of residents, perhaps you should check with NSW Health.
Kenny – as I suspected, the intro. wording that you’ve now provided confirms that where decks are in place, everything from 1 metre below their surface to the underside of the first floor eaves of the respective Lots is common property, and the responsibility of the Owners Corporation (O/C).
There are only three (3) ways for your O/C to absolve itself of that responsibility.
The first is by way of Sect 62(3) of the NSW Strata Schemes Management Act (1996), the second is by way of Sect 65B where each Owner is granted exclusive use of the decks (under the rationale that nobody else could use them anyway), and with the Condition that each of those Owners is responsible for the maintenance and repair of those, and the third is by way of Sect 65(A) 1(b) where the O/C could simply remove its deck/s.
All of the above requires a Special Resolution to pass at a General Meeting, where ≥75% of those voting (personally and by proxy) would need to do so in favour, as determined from the units of entitlement (UOE) of each, and the total UOE of all those voting.
Regrettably, the first of the above is additionally conditional on the O/C’s decision not affecting “the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme”, the second requires written consent by each of the affected Owners followed by the Registration of an enabling Special By-Law, and the third would probably need to involve all decks and not just the one that’s at issue.
I doubt that any of the above would easily occur in the circumstances that you describe, so the best solution in my opinion would be for your O/C to allow an additional amount in its next budget to specifically cover the maintenance and repair of decks, so that at least every Owner is then aware of and transparently contributing to that, and for the O/C to then bide its time until an Owner seeks its consent to alter or change a deck, such as by roofing it or placing a new/different railing around it, at which time a Condition of any consent by the O/C could be that such Owner/s maintain and repair the entire structure.
Sorry – not the answer that you wanted I’m sure!
Austman – we’re back to differentiating between what an Owners Corporation (O/C) may be legally required to do and what its insurer may cover subsequent to damage by a defined event.
In my experience it’s always been the case that an O/C’s building insurance doesn’t provide cover for paint and wallpaper, with the rationale being that those items are not common property, but are rather sometimes attached to it in a non-permanent way such that matching a replacement may be impossible.
In some instances, some O/Cs adopt that same approach on the basis that irrespective of what it’s insurer may or may not cover, the NSW Legislation requires it to only maintain and repair its common property, and not items that are non-permanently attached and therefore do not form part of it.
That’s a tenuous argument I agree, but it’s nonetheless one with significant precedent, a long-standing point of discussion, and a cause of conflict such as in Derek’s example, albeit with mitigating circumstances, and that I assume is why insurers such as THIS ONE are now offering NSW O/C’s optional cover for paint and wallpaper.
Those last few posts are precisely why I hesitatingly made reference to the Owners Corporation’s building insurance, as that serves to confuse the matters of the O/C’s liability and that of its insurer with regard to Derek’s problem.
The O/C’s building insurance does not provide coverage for “basically the same as a Home Insurance policy does on a freehold property”, and anomalous or not, neither it nor the O/C is obliged to replace paint on areas of its common property within Lots unless (another complication) the optional insurance policy that’s now available for paint and wall coverings is selected on the O/C’s policy.
So in my opinion, we’re back to the suggestion that Derek submits quotes for painting and water-related repairs to his Lot to his Executive Committee Secretary, copies that to his Strata Manager, advises that he’s prepared to take his claim to NCAT, and hopes that his O/C buckles and adopts the high moral ground as opposed to one of strict liability.
Kenny R – you said in post 4 ….
“…. the courtyards, patios, terraces and decks, where no hardstand exists. are limited in depth to 1 metre below the upper surface of the floor of the respective lots and are limited in height to the underside of the horizontal eaves on the first floor of the respective lots except where covered.”
Not sure what all this means in relation to the decks in question…..
That quote (in italics) from the Strata Plan relates to the stratum of either the individual Lots or of the Common Property within the limits of which either the Owners or the Owners Corporation has responsibility, but we can’t state which it is, without advice from you about what precedes those introductory words; “…. the courtyards”.
Secondly, I’m confused about how many Lots have timber decks – your post #1 advised that only one of the 12 townhouses had a deck and yet your subsequent post #4 talks about Lots and decks; both plural (?).
If your original questions have been answered, then of course there’s no need to respond to this one.
Derek – you may have to cop it on the chin, but still submit the claim to your Executive Committee Secretary (cc Strata Manager) as Jimmy suggested – it’s paperwork that you’ll need anyway and is definitely worth a “try-on”, particularly as your Owners Corporation’s past inaction has exacerbated your situation and it may yet buckle at the prospect of you taking it to the NSW Civil and Administrative Tribunal (NCAT).
Austman – I don’t know about what occurs in Victoria, but in NSW Owners Corporations (O/C) have an absolute responsibility to maintain and repair their common property and any damage that they may cause in the process of undertaking a repair, and whilst I’ve tried to avoid the complications around insurance, the O/C’s compulsory insurance would cover those repairs if they arose from a “defined event” such as a storm, but not so if they arose from a lack of maintenance or by gradual deterioration (e.g of roof tiles).
So far as I’m aware, in neither instance is an O/C obliged to repair any consequential damage such as that to a Lot’s contents, that is, whether that be from a lack of proper maintenance on or from a defined event involving its common property.
It’s worth noting that a refusal of an insurance claim by an O/C’s insurer does not negate that O/C’s absolute responsibility to still repair any common property that may have been the subject of that claim, however as I observed before, the Lot Owner’s insurer (of contents) will usually cover consequent damage to that Lot in circumstances where the O/C’s insurer and/or the O/C itself will not do so and states that in writing.
Derek,
Jimmy said……The easiest and cheapest way for the OC to remedy this is to get the work done – that’s what will happen in the end anyway
Whilst I agree absolutely with that premise so far as what should happen in terms of fairness, all that must happen is that the Owners Corporation (O/C) repairs its common property, and your case that’s the roof and ceiling of your townhouse, and of course anything else that may be damaged in the process of it making those repairs.
Painting of the ceiling and the repairing of the wardrobe are matters which the O/C may attend to at its discretion, and whilst I again agree that should happen given the delays in repairs and the further damage arising from those, it doesn’t have to.
So by all means get those quotes Derek, but in my opinion a demand for your O/C to repair anything other than its common property will be a bit of a try-on, so it’s worth considering that as a fall-back position the Insurer of your contents may cover anything that your O/C and/or its Building Insurance will not repair, provided it’s supplied with written evidence of that refusal.
Dragondeewhy – this discussion, like cigarette smoke, seems to have drifted away from the original source, and from my perspective at least it’s becoming a bit tiresome, and your habit of including the entirety of previous threads as a quote, with older quotes within, doesn’t help (I’ve fixed #20).
We’ve progressed from people farting in the lift, to the smoke from BBQs, to people smoking on common property, to being influenced by “mass psichology” (sic), to vehicles’ exhaust smoke, and now to the legalised use of marijuana.
Enough is enough for me….. can we please get back to strata-related topics?
newlsie – it all hangs-off the precise wording of that 2010 Special Resolution, where as you’ve stated in summary each Owner could at their discretion and cost enclose their balconies in accordance with some consistent design, and where the Owners Corporation would be responsible for any and all components of those enclosures that were upon completion part of its common property.
So that sounds to me like any Owners of Lots on the top-floor who desire to enclose their balconies would be also required to construct a roof if that’s required to achieve that, with the entire structure being at their expense, and being of that consistent design that you say was approved by your O/C in 2010.
Remember that balcony enclosure is not compulsory, and so any Owners such as those on the top-floor who don’t wish to pay the additional costs of a roof, can simply leave their balconies as they are and await the O/C’s works to re-tile, waterproof, and install new balustrades on those.
If I’ve interpreted everything correctly, then frankly what your O/C agreed to in 2010 as a remedy for the leaking balconies is in my opinion a dog’s breakfast, that’s exacerbated by the fact that the 2-year window that was available for the Registration of a Special By-Law to make Owners responsible for the maintenance of their balcony enclosures has passed.
Again in my opinion, if enclosing balconies is really a cheaper and better solution to the water ingress problem than waterproofing and re-tiling those, then I think that somebody (you?) should put an end to the issue by placing a Motion for Special Resolution by the O/C on the Agenda for the next General Meeting (or to an Extraordinary one if urgent) to have the O/C enclose all balconies, to meet the costs of doing that, and to be responsible for the ongoing maintenance and repair of them where its Common Property is involved – just as it would be under the waterproofing/re-tiling option.
That Motion would need ≥75% of attendees at the Meeting to vote in favour (a “poll vote”) so you and like-minded Owners may need to do a bit of lobbying in advance, but under my suggested solution at least the O/C would be in a position to commission and coordinate the work, and to thereby control both the quality, consistency, and timing/sequence of it which, under the original 2010 scenario, the “general feeling” was it would have been responsible anyway.
newlsie – so it sounds like your Owners Corporation specially resolved (i.e. with ≥75% of votes in favour) to permit Owners to enclose their balconies, presumably at the expense of those Owners who wished at their discretion to do so, with those expenses presumably including the costs of the roof/s to which you refer (?).
Sorry for all those presumptions, but even more clarification about precisely what form that special resolution took would be helpful, including if it was a blanket consent, what if anything was included about who pays, who’s responsible for on-going maintenance of the enclosures, about consistency of design/appearance, and about any process to have the units of entitlement of Lots altered to better reflect any improved market value accruing to those with enclosed balconies.
Irrespective of who it was intended would be responsible for undertaking and paying for the enclosures, IF those and the on-going maintenance of them once completed was originally intended to be that of individual Owners and NOT the Owners Corporation, then a concurrent Special By-Law would need to have been Registered before 2012 in order to give effect to that and indeed to any provisions such as those to which I’ve referred to about design/appearance etc.
If I was in your position, I wouldn’t be ordering windows or indeed anything else until such time as the presumptions that I’ve made here have been clarified to the satisfaction of your Owners Corporation.
The special resolution and supporting Special By-Law that your Owners Corporation MUST have passed and registered (respectively) to cover what amounts to a change / addition to the Common Property should, amongst other things, adequately stipulate the matters about which you’re seeking advice.
Before other flat-chatters respond, could you please clarify how your Owners Corporation’s decision has or will be made?
Dan – whilst the Owners Corporation (O/C) can require the Lot Owner to undertake the works, I’m of the opinion that as its Common Property (CP) is involved the O/C should commission and supervise the entirety of the works, with entry if necessary being obtained under the provisions of Sect 65, and with the O/C’s total costs (i.e. for works on its CP and any required on/for the Owner) being recovered in accordance with Sect 63. Of course each party could attend to their own works, but as that’s generally neither cost effective nor desirable my definitive answer to your question is… the O/C.
However (there’s always at least one in Strata) whilst Sect 65 refers the an O/C entering a Lot to undertake works that are required under the Strata Schemes Management Act (SCMA), and Sect 63 permits the O/C to recover its costs of undertaking those works where those would otherwise be the “duty” of the Lot Owner, and strident advice on both of those may well “encourage” those past renovators in your Plan to agree to the O/C’s proposed Special By-Law (SBL), if they’re not convinced and that SBL fails to pass the vote at your AGM, then you could hit the proverbial (renovated) brick wall.
Why?
Well if that SBL fails to pass then I can’t see that same group of Owners (as the O/C) applying for Orders under Sect 140 – which I see as the approach most applicable if the O/C’s approach was that it IS prepared to retrospectively consent to all past renovations IF the Order makes the current Owner/s of affected Lot/s responsible for the maintenance and repair of those.
I don’t wish to be personally critical, but on a generic basis I have to observe that after almost 4 years on this Forum I can’t understand how Owners can still undertake substantial renovations to their Lots that involve the CP with no other Owners being aware of the requirements for obtaining prior consent to those, or even seeking guidance or advice from their Strata Manager if and until it’s too late!
Fingers crossed that your SBL passes and that your Strata Manager has both the knowledge and the commitment to bring all those past renovators into the fold.