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Gees….. indecisive Lawyers!
As a non-lawyer I’d vote for the first option, as even though I believe that all owners actually are consenting to the entirety of the Special By-Law (SBL) by virtue of the special resolution (if passed) they make to create it at the General Meeting, nothing’s diminished by individual owners individually consenting to the maintenance conditions of that SBL, providing details of their renovations, of the specific common areas affected, and their Lot number all at the time that renovations are proposed.
That’s a step in right direction, but it does nothing to address those renovations involving common property that have been permitted to occur in the past, and about which you should perhaps make your Owners Corporation aware at the General Meeting; specifically if your Motion is floundering.
Matilda – if you’re in NSW then you may not be as locked in as you think.
Under the provisions of Sect 40B of the NSW Strata Schemes Management Act (1996) any Caretaker Agreement (a “Contract”) that’s been setup by a Developer compulsorily expires upon the conclusion of the first General Meeting of the Owners Corporation, or if it was actually made by the Owners Corporation at that first General Meeting then it expires after ten (10) years, irrespective of any roll-over provisions.
As for the lift maintenance Contract, I thought that such documents were required to incorporate provisions for termination, including for early termination even if that involved penalties, but surely there are provisions for standards of service and cost efficiencies that your Owners Corporation could test against the market for both Contracts, if only to keep locked-in contractors on their toes.
Sailor – so far as I’m aware concrete roof tiles don’t have a protective coating, and don’t need one because as they’re laid on a slope and overlap the rainwater just runs off them towards the roof gutter.
In my opinion, having a contractor climbing all over the roof of your building is likely to crack even more tiles, and the high-pressure washer that they use to clean them will likely provide the equivalent of many years normal weathering.
Paint won’t seal a cracked tile, so I’d suggest that you have any cracked ones that are visible from the street replaced with others from a less conspicuous part of the roof that are equally weathered, and replace those in that less conspicuous location with new tiles.
If your Owners Corporation wants to spend $30K to improve the aesthetics of the building for a few years, then by all means have it painted, but frankly if it’s aesthetics and longevity that’s the objective then look at replacing the entirely of the visible sections with a metal / colourbond™ roof.
Idafun – In the circumstances that you’ve now explained, I doubt very much that the entry doors would be fire-rated, and quite frankly I wouldn’t be worried about a Special By-Law that’s only purpose would be to retrospectively consent to those; if they fail then let the Lot Owner replace them.
Correct… those peepholes installed by the door suppliers would have a fire rating that’s at least equal to that of the door, and there are peepholes available after-market that have a 4 hour fire rating, but the problem is that residents typically buy the el-cheapo versions and then compromise the fire rating of their entry door/s.
Idafun‘s answer depends upon whether those entry doors are fire rated; so?
I can see your point Peter, but as I understand the circumstances as described by bcr83 in his previous posts, his Executive Committee (E/C) hasn’t formally refused his application to fasten an airconditioning unit to the common property (wall) but has rather insisted, under a strict interpretation of one provision of a Special By-Law (SBL) covering the visibility of such units from other Lots etc, that he place that unit on his balcony, from where he claims it would be as visible as it would be if placed in his preferred location on the common wall, and be as visible as other owners’ balcony installed units are (whew).
I’m not a conspiratist but I can appreciate bcr83‘s concerns about a contrived outcome at the General Meeting, where the Members of his E/C who have themselves made a determination on his application (as they can within the terms of the SBL) may be the only attendees, who armed with sufficient proxies will merely give more credence to the earlier determination, and make bcr83‘s case even weaker should he choose to take it to adjudication.
The Owners Corporation declined the opportunity to attend Mediation and that won’t go well for them if bcr83 now takes his matter to Adjudication, and seeks Orders under Sect 138, or in my opinion more appropriately under Sect 140 as consent hasn’t been refused, just prescribed.
The worst possible outcome would be that the SBL is upheld, and bcr83′s airconditioner would need to installed on his balcony, so I’d be pushing that dispute settlement envelope and keeping the E/C’s preferred approach to an General Meeting in my back pocket.
stuffy – the Section of the NSW Strata Schemes Management Act that Cosmo posted (#2) states that certain works can be undertaken and associated costs recovered by an Owners Corporation (O/C) where a Beach of a By-Law by an Owner requires them to undertake those works, and the don’t.
So I’d suggest that on the basis that the items placed in the courtyard are obstructing the lawful use of that common area by other residents, and that filling all the common storage areas with similar items prevents others from lawfully using those areas, your O/C should issue the Owner of the Lot with a Notice to Comply citing a Breach of By-Law 3, which states that:
“An owner or occupier of a lot must not obstruct lawful use of common property by any person.” ____and…
… requiring that Owner to remedy that Breach by removing all their stored items within a reasonable (but short) timeframe.
If that doesn’t achieve the desired outcome, then as an alternative to the O/C taking the usual next step by applying to the NSW Civil & Administrative Tribunal (NCAT) for a penalty, I’d be inclined to have it write to the Owner, with a copy to their tenants as the “occupants of Lot X “, outlining instead what it proposes to do in accordance with procedures given by Jimmy (post #3), and enclose a copy of the Application for Mediation Form so that they can initiate that step should they so choose.
Then if necessary, the O/C can then have all offending items removed, and upon the expiry of 14 days for anything unclaimed or 90 days for any personal documents, it can dispose of those and recover the costs of doing so from the Owner by having the Strata Manager add the amount applicable as a separate line item on the next Levy Contributions Invoice to that Owner, where if it’s then unpaid it remains as a debt against the Lot.
OK, you run the risk of not being paid until the offending Owner sells their Unit, but then the usual approach of the O/C applying for a Penalty involves written submissions, and can involve appeals, extensions, and of course the risks involving the idiosyncrasies of the NCAT – whilst during all of that time the problem remains unresolved.
Can’t predict that dan, but as your (Strata) Manager has asked you to follow the legally correct procedures with regard to your proposed renovations, it’s obvious to me that they at least would be amenable to setting right past oversights.
Furthermore, IF any of the previous renovators are current Owners, then I’d expect they too would be receptive to a SBL that merely makes them responsible for maintaining their past works where those involve common property areas; they probably expected to anyway!
It’s the subsequent Owners of renovated Villas that can be potentially problematic, as they may (or choose to) believe that everything’s original, and therefore some is still common property.
In any event, you’ll never know until that Motion is placed on the Agenda for your upcoming AGM; even if you have to submit it yourself!
dan – absolutely… and I’d strongly recommend that the proposed Special By-Law (SBL) incorporates both the moratorium and the keeping of the Register outlined in my previous post (#2), or at least that the applicable Motion before the Annual General Meeting incorporates those provisions so that they’re “enshrined” in the resultant special resolution if passed.
I don’t know how strata-experienced your Lawyer is, but the process that I’ve recommended is entirely within the provisions of the NSW Strata Schemes Management Act (SCMA), albeit as I suggested earlier the implication that any renovation that’s not shown in the Register is un-consented and that its ongoing maintenance and repair is deemed by the Owners Corporation (O/C) to be the responsibility of the then Lot Owner (who may not be the renovator) could be contested.
I made that observation because in order for any SBL to properly transfer part of the O/C’s responsibility to attend to common property maintenance to an Owner, that Owner needs to agree in writing to that provision. So whilst it could be claimed (as I do) that all Owners agreed to that provision when they passed the Special Resolution to create and register the SBL, a counter-position could be argued, and arguments of the legal variety are the last thing that an O/C needs.
On the subject of your Executive Committee (E/C) agreeing to make your Lawyer’s draft SBL into a generic document in the form that I’ve suggested and to reimburse your costs for the work done to date, you can but try, however remember that your Strata Manager is a consultant/advisor to your O/C, and remind your E/C that it has a legal obligation to ensure that the Strata Plan is managed in compliance with the SCMA and to correct past non-compliances such as those that you’ve identified and about which they’re now aware; that’s what you’re asking them to do and indeed showing them how to do it!
I don’t know how many Lots are in your Plan or how many of those comprise the anonymous renovators, but you’ll need ≥75% of those at the AGM (including by proxy) to support your Motion for the SBL, so best get lobbying for the votes of personal attendees and proxies!
db – have a look HERE.
db – Peter’s suggestion that you combine all of your queries in one post was a reasonable one, but the problem now is that some of the individual ones have already been responded to, so as all the issues are loosely related, as you seem to have a good handle on each of them, and as it seems that no resolution is possible, I’d suggest that you get your evidence such as correspondence, notes, dates, and times together and take the lot to Mediation.
The NSW Strata Schemes Management Act (1996) prescribes how Mediation can, if unsuccessful, proceed to more formal resolution in the Strata Division of the NSW Civil & Administrative Tribunal (NCAT) but you need to give Mediation a try in the first instance.
There are two avenues for you to initiate Mediation, one is provided by the NSW Department of Fair Trading and the other, which I recommend, is via the NSW Community Justice Centre.
db – your numerous posts of yesterday seem to suggest that there’s more in the mortar than just the pestle!
Anyway, Peter’s advice close to the mark, where in NSW an Executive Committee Meeting can be called for by ≥1/3 of its Members.
So in your Committee of 3, that means you alone can call for a Meeting to be convened within whatever timeframe you (reasonably) require by way of a written advice to the Secretary, whose role it appears has been delegated to your Strata Manager.
You need a minimum half of the Executive Committee Members to attend the Meeting in order to achieve a quorum, and in your case that’s two Members; so you can’t make autonomous decisions!
As I think’s been suggested elsewhere, given your other posts about issues at your 3 Lot Plan, your objectives may be easier achieved if you were to “requisition” an Extraordinary General Meeting to be convened, because that can be done in writing by owner/s holding more than 25% of the total units of entitlement for the Plan, because a quorum for a General Meeting is determined on that same basis (i.e. 25%), and because you alone can achieve those criteria – you would of course need to submit the Motions that you want placed on the Agenda for discussion.
Daphne – now I’m confused …..
Your Owners Corporation’s financial accounts should show its ABN, but back to your original post, as I said, so far as I’m aware your Strata Manager’s trust account could show the ABN that’s registered to their Business, or their Trading Name, or their name (as Licensee).
Perhaps there’s an Accountant out there who can clarify, but in the meantime, you’ve expressed concerns about your O/C’s financial accounts in other posts, so what do you suspect is awry this time?
Daphne – are you sure that it’s not the ABN attached to your Strata Plan’s Account, because that would be different from that used by your Strata Manager?
In any event, I don’t regard your discovery as unusual, as one ABN my attach to the Strata Company’s business name and the other to a trading name or to the individual Licensee who may be required to hold and operate a trust account.
If you want to check “ownership” of the ABNs and the relationship between them, then search HERE.
db – on the basis that the information you provided in your other post on this subject is correct, although I don’t recall you advising (as you have here) that you’ve already completed the works, if those works have been undertaken by a properly licensed tradesperson who’s provided you with a Certificate of Compliance (CoC), then you need do nothing at the time of a sale other than to, at your discretion, include a copy of that CoC with Contract of Sale.
On the basis of my very recent experiences with sales of Lots (3) in our Plan, where matters of greater significance than yours have been disclosed by the Owners Corporation to the Solicitors/Conveyancers acting for the parties, have been brought to the attention of people conducting Strata Reports, and yet still the sales have been concluded without the slightest hiccup, and in one case with a new Owner claiming no knowledge of disclosed matters (?).
As I concluded elsewhere, either purchasers are in these time prepared to overlook potential impediments to their transaction, or aspects of the sale-of-land system are broken!