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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
Bubbles – some advice recently provided by “tharra” in another post suggested that a Local Environment Plan (LEP) of The City of Sydney Council restricted the use of carspaces in residential buildings such as yours.
The following was posted as being a reflection of that LEP in the Development Approval for “tharra’s” Strata Plan:
“The on-site car parking spaces, exclusive of designated visitor car parking spaces, are not to be used by those other than an occupant of or person residing in the subject building and any tenant or registered proprietor of the development site or part thereof shall not enter into an agreement to lease, licence, or transfer ownership of such car parking spaces to those other than an occupant or resident of the subject building.”
It may be worth your while to check with The City of Sydney Council or alternatively provide this extract (above) to your Executive Committee and see what’s forthcoming so far as the possibly illegal use of a carspace by the offending vehicle is concerned.
On the broader issue of carpark ventilation, I had a similar problem and took some initial measurements with THIS hired gas detector to, in the case of our Plan and at a cost of $144, prove to a resident that there was no problem with CO emissions – where an 8 hour average reading of <70ppm is acceptable from a workplace perspective; but check with NSW Health regarding levels for a residence of your type.
Not knowing the precise layout of the penthouse, the only other issues that I can think of are:
1) how the Owners Corporation ensures unrestricted and perpetual access to the roof space in order to maintain or to permit others to maintain the hotwater heaters and anything else there; and
2) how the O/C could periodically check upon what / how much / what weight of items were stored in the area; and
3) who is to be responsible for maintenance / repairs of the area should the worst happen (e.g. structural problems) – remembering that if that’s to be the Lot Owner then they need to agree to that provision in writing; and
4) how well subsequent Owners of the Lot would comply with any requirements of the O/C (because the benefits of a Special By-Law pass to all future Owners); and
5) who pays for the preparation and Registering of the necessary Special By-Law (typically the benefiting Owner); and
6) what if any increase in the market value of the Lot would arise from that Owner’s use of the Common Property in the way proposed and how that could be accounted for.
With regard to that last point (6), IF needed that’s best managed by way of a once-off or annual payment to the O/C that’s provided for in the terms of the Special By-Law (SBL).
So far as consideration of the Motion at the EGM is concerned, if it’s exclusive use that the penthouse Owner is requesting then that requires a “special resolution” where a minimum 25% of those Owners in attendance at the Meeting both personally and by proxy would need to vote against the Motion in order for it to be defeated, and with that percentage being determined from the sum unit entitlement of those against and the aggregate unit entitlement of the Plan (i.e. a “poll vote”).
In considering all of this, remember that once granted a SBL of the type proposed can only be rescinded by a special resolution at a General Meeting, and only then with the prior written consent of the then current Owner of the benefiting Lot – so be cautious!
Paul – in relation to post #2, as the name implies a Notice to Comply (NTC) relates to a resident being given “notice” to comply with one of your Plan’s By-Laws, and as the Model By-Law (#17) that I think Larry’s referring to affects the appearance of a Lot relative to others in the Plan in terms of what’s visible from within, unless your Owners Corporation (O/C) has Registered a Special By-Law (SBL) specifically covering the colour scheme of the building / common property, then a NTC would not withstand any delays, queries, or a formal challenge by the recipient – particularly re. subjective assessments about what colour scheme is “in keeping with the rest of the building”.
In the absence of a relevant SBL, the best approach in my opinion would be to use Sect 65(A) of the NSW Strata Schemes Management Act (SCMA) which states, amongst other things, that an Owner may not alter or add to the Common Property without the prior written consent of the Owners Corporation, which can only be given if ≥75% of those present at a General Meeting vote in favour of whatever alterations or additions are proposed.
So your Executive Committee, or its Strata Manager if so delegated, should write to the Owner/s of the Lot concerned to inform them:
1) That as the colour change did not receive the prior written consent of the O/C that all changes made by them contravene Sect 65(A) of the SCMA; and
2) That it it now their duty (use that term) to at their cost restore the Common Property to its original state within (a prescribed timeframe); and
3) That if they don’t do that to the satisfaction of the O/C within that timeframe, then under the provisions of Sect 63 (4) of the SCMA the O/C will commission the works and recover all its costs from them (the Owner/s).
No approach will likely be easy, but in my opinion the one suggested here has the best chance of an positive and acceptable outcome for the O/C.
bubbles – a couple of questions first:
1) Are you an Owner?
2) Is the vehicle parked on the Common Property of the building, such as in the carpark, in a visitors’ parking space, or a driveway?
3) If the owner of the car is not a resident, then who are they?
Olych – to clarify, an Annual General Meeting (AGM) is just a General Meeting that the NSW Strata Schemes Management Act (SCMA) states must be held once a year, at a time that’s one (1) month either side of the date that the first ever General Meeting was held.
All General Meetings held at other times are called Extraordinary General Meetings (EGM), are voluntary, are are convened either by a vote of the Executive Committee or at the written request of Owners whose Lots together represent at least 25% of the aggregate units of entitlement (UOE) for the Plan.
So in specific response to your question, if you want to amend or rescind a decision taken at an AGM you can either:
1) Place a Motion to do that on the Agenda for the next AGM; OR
2) Ask Member/s of your Executive Committee to convene an EGM so that you can place your Motion on the Agenda for that Meeting; OR
3) Seek the support of sufficient other Owners whose Lots have UOE totaling at least 25% of the aggregate for your Plan, and have them sign a “petition” calling upon your E/C Secretary to convene an EGM so that you can place your Motion on the Agenda for that Meeting ; OR
4) Apply to the NSW Civil and Administrative Tribunal (NCAT) for Orders to invalidate whatever decision/s of the AGM you have issue with. You must have valid reasons though, such as that you have been adversely affected by the Meeting’s decision, or that the decision only passed the vote because the Meeting was not held properly.
A little complicated, but I hope this helps!
You’re right in that there’s no specific reference in the NSW Strata Schemes Management Act (SCMA) about “general business” not being a permitted Agenda Item for Meetings of the Executive Committee, and in fact it’s not all that explicit in the SCMA with regard to General Meetings either – except for prescribing that only Motions shown on the Agenda can be voted upon.
Provided no specific decisions affecting the management of the Plan are taken during discussions of “general business” and the Secretary is advised that the Meeting concludes after the last Motion on the Agenda is resolved, then I’d be inclined to let her have her informal chat (because that’s what it is).
Sorry, but that’s just another “fiddle” that’s by no means unusual in Strata and which quite often achieves the purpose intended – at least until an Owner objects, or a more experienced Strata Manager identifies the irregularity, or a potential purchaser commissions a competent person to undertake a Strata Search that also identifies the irregularity, or their lawyer / conveyancer routinely requests a S109 Certificate that would in the case of Jef’s Plan currently show a Special Levy that’s not been raised for a purpose that’s permitted under the SCMA.
Jef, I for one would urge your Executive Committee to at least examine the financial impacts of correctly apportioning the O/C’s water consumption costs to all 19 Owners in your Plan before contemplating anything that amounts to a “fiddle”, even if it lasts for another 30 years; but that’s me!
Jef – Dave’s comments are absolutely correct!
What your previous Strata Managers have been doing for 30 years is contrary to the provisions of Sect 78(2) of the NSW Strata Schemes Management Act (SCMA) and possibly under a strict interpretation of the NSW Water Act 2012 where water cannot be on-sold or even cost recovered without a Retail Licence.
It would appear that in order to both perpetuate what’s occurred historically and cover themselves for breaches of the SCMA , the new Strata Managers are pressing your Owners Corporation (O/C) to specially resolve to create and register an enabling Special By-Law and have affected Owners agree to its implementation.
That’s an understandable approach in my opinion, but as I said before (post 2) it will only take 7 of the 9 affected Owners to oppose the Motion and the SBL will fail, and as I stated here even if the SBL did pass it would be in breach of the SCMA.
As iniquitous as it appears, and on the assumption that all 19 Lots are under the one Strata Plan, the correct approach is for the O/C’s water consumption charges to be a budgeted expense in the Administrative Fund, and for that expense to be shared among all 19 Owners in accordance with the Unit Entitlements of their respective Lots as an inclusive component of their individual Levies.
You may well find that the marginal amount paid by each of the 19 Owners would be minuscule anyway in the overall scheme of things, and your O/C would not need to defend any future challenge to the NSW Civil and Administrative Tribunal (NCAT) by Owner/s.
The only other solution would be for the O/C to pass a SBL enabling the fitting of individual water supply meters to the 9 Lots that currently share a common meter, and to then convince the Water Supply Authority to read them and to invoice the respective Owners accordingly; good luck with that latter component.
Just a quick comment ….. even if a search of the Owners Corporation’s records reveals the original By-Law and it’s Registered on the Strata Title, none of that can override any requirements the Council may have at that time required (such as a DA to extend / modify the balconies).
For some reason I can’t moderate the post (below) without replying; so “reply” and now it’s over to everyone else!
For some reason I can’t moderate the post (below) without replying; so “reply” and now it’s over to everyone else!
For some reason I can’t moderate the post (below) without replying; so “reply” and now it’s over to everyone else!
Some developers have in the past used somewhat dubious reasons to validate the units of entitlement (UOE) allocated to Lots; often to those that they wished to retain themselves.
It’s now well accepted, and defensible where Owners at some stage apply to reallocate UOE within their Plan, for those to be based on the range of factors that make up the “market value” of the individual Lots.
It would be a good move on your part to speak with a Registered Valuer about the differentiating factors that may be applied to your proposed development, for you to design the Lots accordingly, and to have that Valuer use those factors to Certify the UOE prior to Registration of the Plan.
Again, a minor difference in the UOE in a two-lot Plan assists to resolve day-to-day issues where Owners might not entirely agree but where a majority “poll vote” will settle them, thus leaving the established procedures in the Act as the means to settle “heavier” issues if goodwill fails.