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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.
Paddy – in addition to Scotty’s comments, whilst an Executive Committee (E/C) can grant consent for the casual use of the Common Property for vehicular parking under By-Law 2, as I get the impression that parking “from time-to-time” is more like most, if not all of the time, then the E/C is really over-stepping the mark.
If that’s the fact, then I don’t believe that it’s possible for affected Owners to seek to obtain a Ruling, as that’s only considered in circumstances where an Owners Corporation has been approached to grant Owner/s a Licence to use its Common Property, and that’s been put as a “special resolution” to a General Meeting and been voted down – and from my reading of your post that’s not what’s happened.
So rather than trying the “exclusive use” approach, that fortunately failed (see last para), I’d suggest a Motion to grant affected Owners a period licence (annual?) under the provisions of Sect 65B of the NSW Strata Schemes Management Act, where you’ll see that “terms and conditions” can be incorporated such as to require benefiting Owners to make payment/s to the O/C.
If such as Motion can be properly passed at a General Meeting, then that should both satisfy the Owner who believes that another carspace is worth something (and they’re right in my opinion also), enable a more formal “trial” of the arrangements, and avoid all the pitfalls of “exclusive use” – including the perpetuity of such arrangements irrespective of changed circumstances, including different Owners or Tenants who may be less accommodating.
teamwalrus is in NSW, so I’m afraid that I have disagree with you KWP (and not just because he/she may be an oceangoing colleague).
In my opinion (and experience) un-consented changes or additions to the Common Property are difficult to manage, not least of all because a vigilant Owners Corporation (O/C) should reasonably be aware of those at the time that they occur or within a short timeframe thereafter, and it’s hard therefore for an O/C to require some restoration of its Common Property or a reversal of whatever changes or additions were made and/or to substantiate an application along those lines to the NSW Civil & Administrative Tribunal (NCAT) long after the event, particularly so if the person who made the change or addition is/was a tenant or a new Owner (i.e. not the one who made the changes / additions).
As a more direct response to teamwalrus’ post, anything that’s attached or added to the Common Property by or with the consent of a Lot Owner forms part of that Common Property, and in the absence of a special resolution taken at a General Meeting that grants consent to those works and, with the prior written consent of the Lot Owner, a Special By-Law making them and subsequent Owner/s responsible for all on-going maintenance, repairs, and replacements of whatever’s been added or attached, then that responsibility remains with the O/C.
So the O/C is responsible immediately, although it can mount a successful argument against a Lot Owner to have them restore the Common Property to its original state and in default to undertake those works itself and recover all applicable costs of doing that IF the Lot Owner who undertook or consented to the works (e.g. by a tenant) is the current Owner. Although even then, a Lot Owner could claim that works were undertaken without their consent by a tenant (past or present) and that they weren’t aware of them – although that would be harder to substantiate at the NCAT given that regular inspections of rental properties are supposed to occur.
Beyond that and in general terms, where the Lot has been sold and so the current Owner is not the person who undertook or consented to the additions / changes to the Common Property, then the O/C is stuck with the responsibility for all on-going maintenance, repair, and replacements unless it can convince a cooperative current Owner to agree to assume that responsibility retrospectively, and ideally to have that enshrined in a Special By-Law.
So in summary this whole topic is messy, and particularly so in Plans with high occupancies by tenants who may themselves make additions / changes to the Common Property, and moreso are disinclined to make an O/C aware of such works by others.
The solution that I adopted for our self-managed plan (where I am Secretary) was firstly to place an Item about the need for all Owners to themselves comply and to ensure compliance by their tenants with Sect 65A of the NSW Strata Schemes Management Act on the Agenda of every AGM, secondly to create a “Register of Changes and Additions to the Common Property”, thirdly to give all Owners a 6 month moratorium to advise me of any and all changes / alterations to their Lot/s irrespective of who did them or when, and lastly to specially resolve (i.e. >75% in favour) at the subsequent AGM to create and Register a Special By-Law providing that any additions / changes to the Common Property that aren’t shown in the “Register” (incl. those made by the O/C) are entirely the responsibility of the Owner/s from time-to-time of the Lots concerned.
OK – it’s work for me to keep the Register up-to-date, but that’s a hell of a lot easier that trying to assign maintenance and repair responsibility of a faulty TV aerial, air-conditioner, ceiling fan, or expensive floor tiles that have cracked to some less than cooperative Owner long after the event that added those to the Common Property!
Woops – Scotty and me posted at the same time (but similarly as usual) – so I’ll take the opportunity to now add that an O/C should make persons conducting a Strata Search (optional) or a Solicitor / Conveyancer requesting a S109 Certificate (mandatory) where both are pre-purchase, of any un-consented changes or alterations affecting the Lot; I always do!
Whale 1410