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There’s a distinction between who’s responsible for having repairs made to common property and who pays for those repairs in circumstances where they’re a consequence of an activity by someone who’s in breach of a By-Law, such as in RL’s first post (#1).
……which is precisely why I suggested in post #6 that AJC should be seeking advice about how to also “soundpfoof the margins where the hard floor abuts common walls”.
RL – both your hypothetical duhh moment by an O/C and similarly one by KWP suggesting that an O/C could be up for the costs to remove and replace an Owner’s equipment would be easily and comprehensively addressed in any Special By-Law that had been prepared by a strata-aware Lawyer.
An excellent post Missy!!
I edited-out the name of Andy’s Local Council just in case something derogatory arose in subsequent posts, but as matter of interest and in support of Missy’s comments, that Council’s Website states the following at it’s “Neighbourhood Noise” page:
Council has power to investigate and issue a notice or direction under the Protection of the Environment Operations (POEO) Act 1997. A notice or direction can be served on the occupier of premises requiring measures to be taken to control or reduce the noise, however the noise must be considered “offensive” in the opinion of the Council Officer.
Try again Andy, and as Missy suggests try to get past the Council Officer who answers the ‘phone, or if that’s not possible then ask them to put you through to the Councillors’ Support Officer so that you can discuss your problem with your Ward representative.
Paula – most commonly, the balcony of a Lot would be part of the Lot, and even though the wall that separates a living area from a balcony would be part of that Lot in Plans registered prior to 1974, the floor upon which everything sits, including air conditioning units, is Common Property.
On the assumption that more than one Owner will at some stage seek the consent of their Owners Corporation (O/C) to install an air conditioner, I think that the tidiest way to handle all this is for your O/C to place a Motion on the Agenda for its next General Meeting whereby those in attendance may “specially resolve” to create a Register a Special By-Law (SBL) outlining the generic conditions under which it (the O/C) can consent to Owners’ air conditioning installations.
It’s advisable for a draft of the proposed SBL to also be included with the Agenda as an addendum.
In order to pass, that special resolution would need the support of ≥75% of those in attendance both personally and by proxy, with that percentage being determined on the basis of each Owner’s Lot Units of Entitlement; that is a poll vote as opposed to a simple majority vote.
If that special resolution succeeds and the resultant SBL is Registered, then yours and all subsequent requests by Owners to install air conditioners can be considered at a Meeting of the Executive Committee (E/C), and if consistent with the SBL be consented at that level.
Martin – NO that’s not correct. It’s only the windows and doors in any wall that separates parts of the same Lot that are the responsibility of individual Owners, and most commonly that’s the wall between living areas and a balcony.
There are exceptions however, such as where there’s a notation to the contrary on the Strata Title Plan, so it’s always better in my opinion to contact NSW Land & Property Information who will check their “official” copy of that Plan and advise you accordingly.
The plot thickens!
AGM’s need to be held within one month either side of the date that the Plan’s first ever such Meeting was held, so yours probably has some leeway in terms of its date.
Notwithstanding any delegations to your Strata Manager, it’s your Executive Committee Secretary who has the ultimate authority to convene General Meetings, so in the circumstances where there are numerous addenda and it’s likely that some Owners without email would not have received the most recent of those within the prescribed timeframe, it’s entirely appropriate for the Secretary to advise your Strata Manager that the AGM is postponed until such time as a consolidated and properly formed Agenda is available for re-issue.
I can’t help wondering how your new Strata Manager is so unaware of the requirements of Sch. 2 of the SCMA!
The NSW Strata Schemes Management Act (Schedule 2) requires that the Agenda of General Meetings is provided to Owners a minimum 7 days before that Meeting is convened, and that’s primarily intended to ensure that everyone has adequate time to digest the content, to form their queries if any, and all so that they’re in a position to cast informed votes on all Motions.
In your case, there a few anomalies that will make it even more difficult for Owners to decipher the financial and other information that’s been provided as addenda to the original Agenda in advance of the Meeting, and that’s the important thing to take into account in deciding if everything is “OK”.
So if the most recent addendum to the Agenda was received by all Owners a minimum 7 days before the Meeting date and Owners can decipher everything or at least know what clarifications to seek on the day, then in my opinion that’s “OK”, and if otherwise, the Strata Manager should be if possible provided with a list of clarifications and be instructed to defer the Meeting to a date that at least complies with that prescribed 7 day window.
bubbles – I would hope that, perhaps unlike yourself, your Strata Manager has not been distracted by or confused the issues of the one vehicle’s noise or of its smelly exhaust, and has instead focused on the fact that an Owner has breached your Plan’s Special By-Law by giving one of their security access tags to a non-resident, and has therefore issued them with a Notice to Comply with that Special By-Law; because that’s the real issue!
RL – I think you’re making this whole Consent process harder than it actually would be if any Special By-Law (SBL) was worded appropriately.
Firstly the example of “exclusive use” that you cited is hardly relevant to your proposal which merely seeks your O/C’s Consent to erect a solar panel and ducting ON the Common Property, NOT for you to have exclusive use of even that part of the roof or of the building wall or to maintain areas of the Common Property per se.
Secondly, in order to avoid a situation where a subsequent and strata-savvy Owner of your Lot could mount a case for the O/C to assume the responsibility for maintenance and repair of the solar panel etc because those items are attached to and could therefore be seen to form part of its Common Property, an appropriately worded SBL would shift those responsibilities away from the O/C to you and subsequent Owners of your Lot (assuming they wish to leave your proposed system in place).
“Exclusive use” is irrelevant in my opinion, but even if that provision was included in the SBL, the requirement for an Owner to consent to any repeal or amendment cuts both ways. Like would you really want your O/C to remove your Consent and your equipment without your agreement?
RL – Dave (post#3) is right, in that consenting to the previous bathroom fans and to what you’re proposing is beyond the purview of the Executive Committee.
Whether consent to your proposals is granted under a Licence to use the Common Property or a Consent to erect/add new structures onto that Property, consideration of it must be by way of a Special Resolution at a General Meeting of the Owners Corporation (O/C).
With regard to the By-Law (actually a Special By-Law in this case), IF your O/C goes down the path of granting Consent to your proposal under Sect 65A of the NSW Strata Schemes Management Act, which is the approach that I’d recommend given the nature of what you propose, then unless your O/C wishes to assume on-going responsibility to repair and maintain your solar panels, ducting, etc as part of its Common Property, then a Special By-Law is necessary to shift those responsibilities to you and any subsequent Owners of your Lot.
Hope that answers your questions.
AJG – congratulations on your earnest efforts to do things properly, even though that’s being frustrated by what on the face of it appears to be a less than cooperative Executive Committee and O/C.
So far as the acoustics is concerned, have a talk with Regupol Aust P/L., who even though they sell what that make, has a specialist Strata Noise Team who you’ll find helpful. Just make sure that fully apprise them of the situation and what it is that you want to achieve, because in my experience they sometimes talk-down things such as the need (for you) to also soundproof those margins where the hard flooring abuts common walls.
With regard to the structural engineering issues, if you want a second opinion then contact Integrated Building Consultancy, they’re Sponsors of FlatChat and also have a specialist Team dealing with Strata issues, and may have some contacts in the acoustics specialty.
Now…. with regard to the O/C’s consent to your proposed alterations to the common property, again I’m afraid to say that what your Executive Committee has said is true, in that those can only be considered by way of a Special Resolution at a General Meeting, but you don’t have to wait until the next one of the “Annual” variety next April.
You could make a formal request to the E/C Secretary for them to convene an Extra Ordinary General Meeting (EGM) to consider your proposed changes and renovations, and offer to pay for any O/C’s costs to do such as for the venue or for your Strata Manager’s time, OR, should that be denied try to gain the support of 25% of your fellow Owners as determined by their Lots’ units of entitlement to sign a “requisition” (a petition) requiring the E/C to convene such an EGM, where the E/C Secretary must then do so under the provisions of Sch 2, Cl 31(3) of the NSW Strata Schemes Management Act (SCMA).
It’s worth noting that if it eventuates that your E/C or O/C cannot make up its mind one way or another on any submission that you’ve made after 2 months, then you can seek Orders from the NCAT to have an Adjudicator make a decision for them under Sect 138 2(b) of the SCMA.
Finally, as you’re new to Strata have a read through THIS excellent publication of the NSW Office of Fair Trading.
Paddy – an interesting question!
I note that Stivcro (Post #2) observes that re-painting of the Common Property (building) MAY require a special resolution, and perhaps that’s because like me he/she thinks that it’s not all that clear.
My interpretation is that even if a proposed new colour scheme is a radical departure from what’s there now, the passing of an ordinary resolution at a General Meeting would suffice, as Sect 65A is intended to apply (although not so clearly) to structural changes that add to or alter the common property.
Even though painting too can “alter” the appearance of the building, that can if necessary be more easily reversed than those types of structural additions and alterations that I believe Sect 65A is intending to capture, so I agree with your Strata Manager.
Details of the proposed colour scheme must be distributed with the Agenda, and in order to obtain a more definitive vote you could call for a “poll” to determine that ordinary resolution on the basis of the units of entitlement of those Owners in attendance incl. by proxy (>50% to pass).
AJC – on the assumption that your Plan’s in NSW, I’m afraid that if the Special By-Law that’s quoted in your post was properly considered by way of a Special Resolution at a General Meeting, that it’s Registered, and that the Owners Corporation’s (O/C) decision to deny consent to your proposed works (i.e. the floating floor) was also correctly taken and accurately minuted, then in my opinion you have no grounds to seek Orders or in fact any other redress in the NSW Civil and Administrative Tribunal (NCAT).
That’s not to suggest that the arguments and supporting information that you put to the General Meeting weren’t valid, it’s just that there are few limitations on the ability of O/Cs to make and to enforce Special / By-Laws, and none of those limitations applies to the one that’s affecting you.
As you’ve noted, some Proprietors in your Plan have in the past suffered noise-related inconvenience as a consequence of some activities involving changes to floor coverings in Lots, and the O/C’s Special By-Law didn’t discriminate between Lots; that is those on the bottom residential floor and those located elsewhere.
Noise transmission from hard flooring, and particularly from wooden / floating floors that it appears you’re proposing, is a REAL issue for O/C’s, and previous posts to this forum have revealed many so-called experts that will guarantee anything in terms of their product’s sound insulation capabilities in order to secure a job, and then leave the consequences of non-compliance and neighbours’ complaints to their former client.
Everything considered and given the positioning of your Unit, and taking into account that proper sound insulation doesn’t just apply to the floor, but also to the margins where a hard floor abuts common walls with adjoining units, IF you can obtain the services of a properly qualified and insured Acoustic Engineer who’s prepared to not only specify suitable sound insulating materials for your Unit in terms of a product’s ability to meet a suitable “weighted normalised impact sound pressure level” (Ln,w) [typically <60], and additionally to indemnify you should noise-related problems later arise, then I, for the first time with regard to such matters on this forum, would suggest that you proceed; cautiously.
Matthew – I think we can all rely on Missy’s post (#2), where as a Tax Accountant she clearly explains your original queries.
As for the subject of levies being income, as a non-accountant I’ll have a go at explaining that, as they (i.e. levies) are payments made for the procurement of services by the Owners Corporation, they represent income in the hands of the O/C, and if the annual total of levies and other income then exceeds the threshold for the Goods and Services Tax (GST), then the O/C needs to Register for the GST.
The O/C’s liability for Business Income Tax by the ATO is however determined differently, under the “principle of mutuality”, which to quote the ATO (with my emphases in brackets)…. “is based on the proposition that an organisation cannot derive income from itself, so where a number of persons (i.e. Owners) contribute to a common fund (i.e. Admin & Sinking) created and controlled by them for a common purpose (i.e. the management of the Strata Plan), any surplus arising from the use of that fund for the common purpose is not income.”
But… income by an O/C from sources other than levies, such as interest and the leasing of common property is, as Boronia mentioned, assessable as business income (30%) and a Taxation Return needs to be lodged; interestingly using THIS 2 page Form just for Strata Plans – so simple really and hardly worth the $450 that our past Strata Managers used to charge us (back in 2006) to complete and lodge a normal Business Taxation Return!