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Yes, “do” was probably the wrong word to use, and I misinterpreted your intent to some degree; sorry.
You probably contribute at least 60% of your Plan’s levies and that certainly enables, and maybe entitles you, to responsibly influence how the entirety of those funds is spent.
Using your example of maintenance funds expenditures, you can certainly put an appropriately worded Motion on the Agenda of your Annual General Meeting that directs that expenditure towards those activities that you regard as a priority, and use your majority vote to pass that Motion.
My only advice is that you use your majority vote responsibly, and that ideally, you engage with the other Owners, because as I said before, any of those Owners who regard what you do as self-serving (e.g. just benefiting you/your lots) and/or as disadvantaging them can make things difficult; even if their concerns are groundless.
This may disappoint you but in terms of complying with Strata Law, including with not being able to “do” certain things at your block without a consenting “vote” by your Owners Corporation, you derive absolutely NO advantage from owing 66% of the total lots in your Plan.
Your only advantage is that when votes are taken on matters included on the Agenda of General Meetings in accordance with Strata Law, if all Owners are present either personally or by proxy then you can exercise 66% of the possible votes and may thereby control what matters pass and which fail.
Be careful with exercising your controlling votes though, as any other Owners who believe that your votes at a General Meeting have been used in a way that unfairly disadvantages them can seek Orders in the NSW Civil and Administrative Tribunal to have such decisions overturned.
THIS publication by the NSW Office of Fair Trading gives an excellent overview of how NSW Strata Law operates.
Thanks for providing that additional detail, but regrettably it negates one of the other options that I was contemplating.
Please don’t take this as a criticism, but managing disputes in two-unit Strata Schemes is difficult enough particularly when the units of entitlement are equal, but doing things on the basis of a wink and a nod can be a recipe for disasters; as you’ve now found out.
Anyway, that doesn’t really help.
So in preparation for Mediation, if you haven’t done so already, you should put pen to paper and as politely as you can in the circumstances, advise your neighbour that you have just become aware that the informal arrangement previously agreed to whereby they have the use of an area of Common Property contravenes various provisions of NSW Strata Schemes Management Act (FYI both Division 4 and Sections 65A & B; but I wouldn’t mention that), and that consequently you are of the opinion that the situation needs to be corrected without delay by them removing the fence and everything else that they’ve placed on that Common Property.
Invite them to respond to your request within say 30 days.
If your neighbours respond in writing or otherwise, you need to keep that response and/or notes of who said what and when, and if they don’t respond cooperatively or at all within the timeframe that you’ve suggested, then your openly polite approach and detailed notes can only assist you in the formal Mediation process, which by the way you should also politely inform them about if you have to go that way.
It’s good that it’s going to be by-the-book from now, lesson learnt, and just so you know what’s in the book (even for 2-Unit Schemes), have a careful read through THIS to see what else the two of you may have slipped-up on.
On the assumption that you’re in NSW, Sect 65A of the NSW Strata Schemes Management Act prescribes that Lot Owners may not add to, alter, or erect (attach) any new structure to any part of the Common Property without first seeking and obtaining the formal consent of the Owners Corporation, which in the absence of a relevant Special By-Law may only be given by ≥75% of those Owners present both personally and by proxy at a General Meeting.
That may all sound like its a little over-the-top in the context of the scale of work that’s been undertaken at your Plan, and particularly so with the door, but just a couple implications with respect to the ceiling fan are that its presence may compromise fire safety by effectively venting the void above the ceiling, may create moisture-related problems in that area, and further, should the current owners sell the property, subsequent Owners could validly require the Owners Corporation (O/C) to maintain, repair, and replace the ceiling fan as it’s attached and extends into the Common Property (ceiling).
As the O/C is aware of the Owner’s renovations and of at least the two (2) breaches of the SCMA that you’ve mentioned in your post, it needs to formally advise the offending Owners that they’re currently in breach of Sect. 65A, and that to overcome that the O/C is willing to accept and consider an application by them to retrospectively seek its consent to all their renovations, including to the works of tradespeople whose details should be provided.
In that way, your O/C should encourage the offending Owners to make it aware of the full extent of their renovations, and may then meet to retrospectively consent to those in full or in part, including to conditions that make current and future Owners responsible for the maintenance, repairs, and replacement of items such as the ceiling fan, or deny consent and require the offending Owners to at their cost restore the Common Property to its original state.
The important thing is for your O/C to get on with it, as it’s difficult to later defend a position of awareness with no action, and also because matters of this type tend to proliferate when Owners see no repercussions arising from the similar actions of others.
Roger – it could well be a valuation that the owner/landlord has arranged to assist in the completion of the asset depreciation schedule of their upcoming taxation return or for refinancing, and therefore nothing of concern to you in terms of the unit possibly being listed for sale, but irrespective of the purpose, you would be entirely justified in advising your Managing (rental) Agent – if only to confirm the bonafides of the caller who wants access to your landlord’s property.
That wouldn’t ruffle any feathers, as after all, you’re only acting in the best interests of your owner / landlord
Bean16 – Whilst I agree that you should take the matter to mediation using THIS form, IF no agreement can be reached, then I’m not so confident about the NSW Civil and Administrative Tribunal (NCAT) ruling in your favour in circumstances where your argument is that you agreed to an informal arrangement when you and the adjoining Owner were on good terms, and where after some years you want that formally undone because that relationship has deteriorated. That’s how a Tribunal Member may see it!
The former Consumer, Trader, and Tenancy Tribunal was a strange place where Members often brought down some decisions that I personally found equally strange (or at least illogical), and I’m not so sure that the metamorphosis of that organisation into the NCAT has changed all that very much; different horse same jockeys.
I’m inclined to suggest an additional step in the process, but in order for that to work I first need to know the units of entitlement applicable to each of the Lots in your Plan and whether you have a Strata Manager. Could you please provide that detail?
In general terms and in the absence of more specific information about the nature of the works covered by the DAs, as an Owner you are not legally entitled to any compensation unless the works arose from an insured event, BUT you may seek that by way of a formal request to the Secretary of your Owners Corporation and see what eventuates.
Come back with some further information about the nature of the major works, and particularly those benefiting only some Owners, and some more comments / advice may then ensue.
CBF – whilst I understand that Strata Managers cannot be expected to customise their accounting software, and in this case the “chart of accounts”, to accommodate the particular needs of individual Owners Corporations (O/C) as their clients, the systems that I’ve seen are necessarily able to adapt (as opposed to customise) an otherwise unused income and expenditure account to suit.
For example, whilst it may be unreasonable for your Strata Manager to create an additional account called “Special By-Law Payments” just for your Plan, there would be absolutely nothing wrong or difficult about your Strata Manager using a standard income account such as “sundry income” to record such payments; after all, your O/C would know what those payments represented.
The “planning” (or scheduling) of such payments could be achieved using the same process that your Strata Manager applies to generate Levy Contributions Invoices across the different Plans that they manage, in circumstances where the quarterly dates for those would vary over the year, and the actual collection process involves nothing more than an extra line on the existing Invoice for relevant Owners’ Levy Contributions.
Where there’s a will there’s a way, but the key point is determining in some equitable and defensible way the amount of the payment made by Owner/s for the use of Common Property, where that could involve everything from using extra space (m2) derived as a percentage of the Lot as existing, and then applying that to the Lot’s Levies in order to strike a separate “sundry” amount (e.g. Levies $800/qtr, Lot size 100m2 and Common Property used 10m2 = 10% extra space at a cost of $80/qtr), to using a professionally conducted market-based valuation.
Pewit – what particular spreadsheet are you referring to, the Transaction Summary, Cash Summary, Income & Expenditure, or something else?
Just make sure that you properly document the most contentious of the issues that you’ve raised in your post, and await the outcome of the Mediation and perhaps the Adjudication process to resolve the matter; hopefully in your favour.
Responses please……….
Responses please………..
Responses please……
In response to your questions:
1) & 2) – Any proposal to amend a By-Law or to register a new one (actually a Special By-Law) has to be put as a Motion on the Agenda of a General Meeting of the Owners Corporation, where ≥75% of those Owners in attendance both personally and by proxy must vote in favour in order for the “special resolution” to pass, with that percentage being determined from the sum units of entitlement (UOE) of those voting in favour and the aggregate UOE of the Plan.
3) The Strata Manager can, with the authorisation of the E/C Secretary (but not otherwise), complete and lodge the Form for Registration of a Special By-Law, and depending upon the delegations given to them under their Strata Management Agency Agreement with the Owners Corporation, they can also place the Corporate Seal of the O/C on that paperwork as required.
By the way, the Fee prescribed by NSW Land & Property Information for Registering a Special By-Law (SBL) is $104.50, and the the associated paperwork requires information on the date that the relevant Motion of the General Meeting to approve that SBL was resolved.
teamwalrus – Sect 140 is irrelevant in my opinion, as it relates to situations where a Lot Owner has sought the Owners Corporation’s (O/C) consent to alter and/or repair Common Property either before or after doing the works, and that consent has been unreasonably refused. It also includes the additionally subjective proviso of the works needing to directly affect the Owners’ Lot.
Whilst I agree that an O/C, when faced with a maintenance / repair / replacement issue involving un-consented changes / additions to its Common Property, cannot simply do nothing, the consequence is that it’s then placed in a position of expending funds to do something when that could fairly easily be avoided.
That means of avoidance is vigilance by the O/C, or a relevant Special By-Law such the one that I suggested earlier, which incidentally is how the staircase matter referred to in Jimmy’s post (#12) was resolved; I can’t help wondering what the outcome would have been otherwise.
You refer to the (hypothetical?) example mentioned in your first post, where it’s clear now that your O/C must do something about the TV Aerial with which the current Owners have had no involvement. That in my “black or white” opinion should be to remove it, and if by some chance the Lot doesn’t then have adequate television reception via the means put in place at the time of construction, then any cabling that’s within the internal walls of the Lot is the Owner’s responsibility and anything else is the O/C’s responsibility.