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If you’re saying that the shower recess has a leak for which the Owners Corporation (O/C) is responsible to repair because the tiles etc are those originally fitted when the building was constructed, and they’re fitted to the floor and/or an external wall of the Lot, then YES the Lot Owner could ask that O/C to make a payment to them that’s equivalent to its costs to repair only those Common Property areas of the shower recess.
And YES the Lot Owner could put any payment from the O/C towards their costs to renovate (the bathroom) provided of course that they’d first obtained the O/C’s written consent to the entirety of those renovations.
I doubt that there would be no areas of Common Property within the site that you’re looking at, but in any case there are are significant differences between the Planning Laws applicable to the development of Strata Titled land and those that apply under Torrens Title, so I’d say that there’s almost no possibility that the former could easily be converted to the latter post development.
Have a talk with the local Council, and while you’re there, also discuss the possibilities of an extension to the Strata property in circumstances where you could, if your proposal is “approvable” by them, provide Council with a minuted Special Resolution of a General Meeting of your Owners Corporation outlining its prior consent – because that’s what you would need, even though there are only 2 Lots.
Kerri – apart from putting-up a Member of your Executive Committee as the Owners Corporation’s “nominated point of contact” on its Strata Management Agency Agreement and with its Insurer, which it appears has been done, your problem is a difficult one when an Owner is so determined to by-pass the “system” – and they succeed!
If as you say the Strata Manager, Insurance Company, and Fair Trading prefer to have one nominated point of contact with the Owners Corporation (O/C), then perhaps make sure that the above is formally in place, and advise your errant owner in writing that any further costs to the O/C that arise consequent to their personal representations to any of the above will be at their cost.
Maybe advise the Strata Manager also, as that may additionally dissuade them from engaging in cost-creating activities with the rogue – just in case she won’t pay-up.
By the way, passing-on those costs as I’ve suggested is a bit of a bluff, but I’ll bet that your O/C will only need to send one invoice to get it’s message across; even if she arcs-up and refuses to pay!
Scallywag – I’ve been using a conditionally free program called Simply Voting for the past three (3) Annual General Meetings and for all Executive Committee Meetings of our self-managed plan.
Regrettably, strata on-line voting is not specifically permitted in NSW, but as it’s not specifically excluded either, I’ve been accepting the votes of participating Proprietors by that means for all unamended Motions at General Meetings provided we have a quorum at the physical meetings.
An interesting topic; do you have any details regarding the program?
I’m sure nobody feels disrespected, but to reiterate Jimmy T’s post, “on that note this discussion is closed” (please!).
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mini – divergent opinions are always welcome, but in fairness I did say that a case mounted under Sect 183 would be a bit of a stretch, as might I add would one under Sect 158 1(c) in circumstances where hornyhombre‘s issue is that the Plan’s exclusive use by-law doesn’t include maintenance conditions; unjust or otherwise.
Point taken with the Application Form; I should have linked THIS one.
In conclusion, I come back to my original observation that Owners Corporations should always think long and hard before considering any Motion to grant exclusive-use privileges!
Felix – the detail on the Strata Roll is customarily updated when the Owners Corporation (Secretary) receives properly completed Notifications under any of Sects. 118, 119, and 120 of the NSW Strata Schemes Management Act (1996)
Those Notifications are required respectively whenever a Lot changes ownership and a different person has an “interest”, when a Lot is leased, and when a mortgagee is in possession of a Lot, and in my experience each Notification needs some degree of follow-up by the Secretary or Strata Manager; less so with solicitors / conveyances acting for purchasers (for the S118) but particularly so with Property Managers (for the S119) and Mortgagees (for the S120) who are typically “slack” in providing those.
If the Secretary (or Strata Manager) is aware or is made aware that the details regarding Proprietor/s on the Strata Roll is incorrect, such as when a Lot is sold and a S118 Notification has not been received, then at a cost of around $12 an on-line search of each Property Title can be made on the NSW Land & Property Information website, and the details shown there can be relied upon to update the Strata Roll as necessary.
So far as your upcoming AGM is concerned, it’s the role of your Executive Committee Secretary (or Strata Manager if so delegated) to send the Owners Corporation’s correspondence, including Meeting Agendas, to all persons then shown in the Strata Roll as having a voting “interest” in each Lot, and if any of that detail is at that time incorrect, then whilst that’s not ideal as persons not shown would be denied a vote, your upcoming Meeting would be legal.
However, your Owners Corporation shouldn’t waste too much time in ensuring that any errors and omissions in the Strata Roll are corrected by any of the means that I’ve outlined; and if it can do that prior to distribution of the upcoming Agenda, all the better.
Sect 183 provides Owners Corporations with an ability to seek Orders to reallocate / revise its Plan’s Schedule of Unit Entitlements (UOE) only under specific circumstances, and the one of those that I’m suggesting may be appropriate in your situation is Clause 2(b), which states that a reallocation may be granted (by Orders) where those UOE existing at the time of a Plan’s Registration:
(b) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without development consent.
It’s a bit of a stretch, but in my opinion an argument could be mounted that the UOE originally allocated to the penthouse Lot became unreasonable when that part of the parcel that comprises the roof area (common property) was effectively made part of that Lot by virtue of an exclusive use by-law, with no adjustment then being made to that Lot’s UOE to reflect the consequent increase in “value”.
In order for an application to the NCAT to stand any chance of success, your O/C would need to have had the valuation undertaken, have approached the Owner of the penthouse Lot about agreeing to the new UOE applicable, and whether or not that agreement was given to have specially resolved by way of a Motion before a General Meeting to accept the Revised Schedule of UOE – even though only that for the penthouse may be different from those existing.
Your O/C’s Application for Orders should be on THIS form, and if that is granted, then THIS form needs to be submitted to NSW Land & Property Information.
Again, your O/C’s chance of success would be a bit of an unknown just like for all others who go down that path, as like the former CTTT, the NCAT does not involve itself in precedents or case law, and too often outcomes depend entirely on the allocated Adjudicator, how well Applicants prepare (e.g. past records), how they present their arguments, and how well they’ve ticked all the boxes – in your case those include the valuation, attempted negotiation with the other party, the opinions of that party, and the documented special resolution.
I’d like to be of more assistance, but frankly it’s now up to your O/C to do cost (of the valuation) vs benefit (more relevant levies to the penthouse Lot) analysis.
Janet – Council could be referring to the “cubic air-space” of the Lots which is not Common Property as opposed to the boundaries of those Lots such as the walls, floors, and ceilings which is.
It may be best to leave further posts until such time as the issues are resolved, at which time I for one would be very interested to read the outcome; good luck once again!
Scolari said …. is a strata manager, or the Executive Committee under an obligation to disclose the short stay letting to their insurance company – duty of disclosure clause?
Yes … it is obliged to do so, and if there’s any consequential increase in the insurance premium, an Owners Corporation (O/C) can with the consent of the Owners concerned, pass that increase on to them under the provisions of Sect 77 of the NSW Strata Schemes Management Act (the Act).
Should those Owners unreasonably refuse to give that consent, then an O/C can seek Orders under Sect 149 the Act to have those Owners’ levies appropriately increased.
The first thing that you should do is to obtain a copy of your Plan’s Special By-Law (SBL) that grants exclusive use privileges to the penthouse Owner, and look for any provision that requires that Owner to maintain any or all of the roof-top.
If the SBL is silent on the subject of maintenance responsibility, then your Owners Corporation (O/C) retains responsibility for that activity, including on the balustrades, and I’m afraid that unless some procedural requirement of NSW Strata Schemes Management Act (the Act) was not properly followed when the exclusive use privilege was originally granted, there’s nothing that your O/C can do about that privilege, of any other provision of the SBL, or to even seek to amend or repeal that SBL, without the prior written consent of the penthouse Owner.
On the basis of the information in your post that consent won’t be forthcoming, so the only avenue that your O/C then has to at least have the penthouse Owner make Levy Contributions that better reflect the increased “value” (incl. market value) of their Lot consequent to their exclusive use of the roof-top is to have a Registered Valuer determine a Revised Schedule of Unit Entitlements for your Plan (and for the penthouse Lot specifically).
The means to do that is relatively easy if the Plan has been Registered for <2 years, but as yours is an “older block”, I’m afraid (again) that the only feasible option is for your O/C to seek Orders under Sect 183 of the Act, which again should be supported by a Valuation of the penthouse Lot.
The situation that you describe is but one reason why the granting of exclusive use privileges needs to be very carefully considered before a vote is taken.
Prufrock – placing a motion on the Agenda is as easy as drafting it, and then providing it to the Secretary of your Executive Committee (cc Strata Manager) with a note that you’d like it to be placed on the Agenda for the next General Meeting of your Owners Corporation under the provisions of Schedule 2 of the NSW Strata Schemes Management Act (1996) – which states at Clause 36:
(1) Any person entitled to vote at a general meeting of an owners corporation on a motion that does not require a unanimous resolution may, by notice in writing served on the secretary of the executive committee, require inclusion in the agenda of the next general meeting of the owners corporation of a motion set out in the notice and the secretary must comply with the notice.
Janet – in my opinion, the fact that the Council has supplied a certificate stating that the attic/storage area is not habitable doesn’t change the fact that the area and the access to it, whether that be by stairs or a drop-down ladder, is likely Common Property.
That makes your Owners Corporation (O/C) entirely responsible for the maintenance and repair of the above, provided you and the other Owners involved haven’t contributed to any damage such as the sagging to which your past posts have referred or haven’t used the area improperly such as by making it a habitable area, in which instances you could be held partly liable for rectification costs.
That, in my opinion, is why your O/C is pushing so hard to have you and the other Owners agree to a Special By-Law, which amongst other things seeks to make each of you liable for those maintenance and repair activities within the attic/storage area and the attached stairs/ladder for which it (the O/C) would be currently responsible IF those areas are as I suspect Common Property.
You’re seeking more expert advice, but in the meantime perhaps contact NSW Land & Property Information and seek their advice about the areas of your Plan that are shown as Common Property on the Strata Title Plan; they’re usually very helpful, but you may have to personally attend their Offices in this instance.
Finally, I know that you’ve been patient throughout this whole process, but I’d encourage you to look hard for a compromise, such as one the that I believe I suggested earlier whereby the O/C would make the necessary repairs to its Common Property attics / storage areas etc, after which the Owners would agree to the Special By-Law that thereafter transfers that responsibility to the individual Owners involved. Maybe talk to your Lawyer about that.
By the way, your experience at the NCAT is consistent with what too often happened in the old CTTT; as I said once before, different horse with the same jockeys.
I may be out of line here, but what the hey….
Pleeeeeease……the management of Strata Schemes is difficult enough to handle in a fair, sensible, and legally compliant way without this incessant researching and quoting of legal precedents in response to straight-forward questions.
OK this one’s a bit tricky, but thankfully it doesn’t involve contract law or the High Court but rather the common sense approach that was alluded to by Scotty (post #2) and reinforced by Austman (post #3); the resident who contacted the plumber could not reasonably have been expected to know the source of the water leakage, so logically they contacted the O/C’s plumber who located that source within Nathan’s Unit, so he should pay the plumber’s invoice.