Forum Replies Created
-
Replies
-
Investor 13 – Cosmo‘s generally correct, but this is again one of those situations where the answer to your query is not straight forward.
The “rule” that’s generally applied in circumstances where there is no Special By-Law in place, is that the Owner of the courtyard is responsible for keeping the height of their tree/s within the stratum of their lot, but where that’s not been done (as in your case) then the costs for maintenance / trimming is apportioned between the lot Owner and the Owners Corporation.
The “common sense” apportionment formula that I use is relative to the stratum – where if that’s 3m and the offending tree is 6m, then the O/C commissions the work and the lot Owner pays 50% of its costs.
Don’t forget to have your O/C check with Council about tree preservation orders and any restrictions on trimming / lopping that may apply.
PS – the “stratum” of the lots in your Scheme will be shown in the notes on Strata Title Plan, and will be a specified distance (M) above and below a defined/fixed/ point on the property such the corner of the building’s foundation slab.
Roo – I agree with your observations about people putting great efforts into finding loopholes in laws (generally) instead of putting minimal effort into just following them, but whilst I don’t expect that the CTTT undertook some dramatic change of direction on the day that its metamorphous into the NCAT occurred, do you really think that in the light of its former Minister’s media release and the directions taken in the Bill that’s now before State Cabinet that it would uphold any O/C’s decision to refuse permission to keep a dog merely because its legs are 100mm too long or solely because a SBL may not include an “unreasonable refusal” clause?
I don’t……. but that doesn’t mean that Wirihana should rely on that or that there aren’t other factors in play, but I do believe that he must attend this week’s General Meeting (G.M.)and put his case as strongly as possible.
Anyway as Wirihana foreshadowed, he’ll be back after the G.M.
cetacean pausing….
I think it’s time to put this thread to bed!
The only difference in NSW (apart from the number of pages in the Act) is that when the mandatory motion about the O/C wanting to (or not) restrict the spending of its E/C on any particular item or matter is reached at the AGM, then to mimic your example, the O/C could then resolve:
THAT the E/C’s other spending from either the admin or sinking fund is $200 x No of lots, and that where that occurs they must on each occasion inform the OC of the results.
So in summary, in QLD a restriction of E/C spending is mandatorily limited in accordance with a standard formula in the Act, and in NSW it’s both optional and the formula flexible in accordance with the O/C’s requirements.
Neither is perfect in my opinion.
(PS the internet must be on a faux public holiday as well – I had to edit this post 6 times just to get it to stick!)
Kiwipaul said: BUT did the OC or EC pass an ordinary resolution approving any of these improvements because if they did then they have got approval for their alterations with the OC having to maintain them (due to their being NO SBL defining maintenance responsibilities). This to me is a crazy situation.
Perhaps the Strata Schemes Management Bill’‘s use of the phrase “common property rights by-law” will overcome the understandable confusion that currently exists about special resolutions of an Owners Corporation automatically leading to or requiring special by-laws.
Changes and additions to the common property of a Plan can only receive the consent of an O/C if >75% of those in attendance at a General Meeting, both personally and by proxy, vote in favour – and where that percentage is determined from the units of entitlement (UOE) of those voting and the aggregate UOE of the Plan (i.e. a “poll vote”); that’s a special resolution. Under this scenario the works can proceed, and the O/C is responsible for the on-going maintenance and repair of whatever it is that’s been consented and thereby attached / added to its common property.
Only where an O/C wants to make the current and future Owner/s of the consented changes (instead of itself) responsible for its on-going maintenance and repair, and the current Owner agrees with that proposition in writing, is it then necessary for a new by-law to be prepared and Registered on the Strata Title for the Plan; that’s a special by-law (SBL).
If an O/C believes that the nature or type of the consented works may result in future identical applications by its Owners, with each of those having to come before a General Meeting, then it may make the SBL generically applicable (i.e. to all Owners) and thereby delegate future decisions of that nature or type to meetings of its Executive Committee.
It’s due to this confusion and the fact that Owners in our Plan would routinely go ahead with alterations and additions to common property areas of their lots without first seeking the O/C’s consent, that years ago we created a registered a SBL that required the O/C (read: “me”) to create and maintain a Register of Additions and Changes to Common Property, and that contains provisions that in essence state that anything that’s not in the Register is the responsibility of the Owner from time-to-time of the Lot (where the addition / charge occurred). It works a treat!
Felix – in response to the removal of the noxious weed (privet), provided the work is covered by and within an item of approved expenditure such as “grounds maintenance” the Executive Committee can authorise the works in order to ensure the O/C’s compliance with the Law [specifically the NSW Noxious Weeds Act (1993)]even though, technically speaking, that’s a change to the common property.
With regard to the window locks, you can find the details HERE.
There are existing restrictions imposed by the provisions of Pt 4 of the NSW Strata Schemes Management Regulation (2010) with regard to legal expenditure and to the need to obtain quotations, and the NSW Strata Schemes Management Act (1996) imposes restrictions on E/C’s of Schemes >100 lots spending >10% in excess of any budgeted amount, and additionally requires that the Agenda of every AGM of an Owners Corporation (O/C) must include an item to resolve “….if any matter or type of matter is to be determined only by the Owners Corporation in General Meeting.”
That is the means for O/Cs to impose the additional financial restrictions that you envisage – those can be specific to types of expenditure such as on all capital works, and/or be generalist such as to all expenditure exceeding X% (i.e. <10%) of any amount budgeted.
The matters or types of matters that might be considered would depend, amongst other things, on the confidence the O/C has in its Committee Members, but it should in my opinion exercise these additional provisions carefully, lest every nut-and-bolt decision or item of expenditure needs be referred to a General Meeting.
Just jumping in on a couple of the more recent issues:
daphne said: my understanding is that the ECs don’t have to admit non-committee members & can stop the meeting until the offending party departs.
Incorrect – any Owner can attend an E/C Meeting, but cannot actively participate without the consent of the Chair.
and: how would Mac prove he had attended the ECM..?
justsaying (just) said: I did speak at the ECM and raised all the issues…. Blank looks in return!
Apart from providing an Agenda to each Owner and/or placing it on the Notice Board 72 hours in advance, the Secretary is required within 7 days to prepare and distribute the Meeting Minutes in the same way, including the details of all attendees (not just participants).
So rather than worrying about the legalities or otherwise of photographing and/or taping E/C Meeting proceedings, daphne and “just” should either attend and themselves take contemporaneous notes which can be relied upon in legal proceedings, or better still submit a Motion for the Agenda for the next E/C or General Meeting pointing out the requirements of the NSW Strata Schemes Management Act (1996) for holding and reporting on the former, and requiring those to be followed.
I’m sorry Wirihana, but my physic powers were unable to predict the snippets of additional and highly relevant information that your posts continue to reveal; perhaps my response to your first post should have been “why do you ask?”
.The Notice that you’ve received states that you must comply with the By-Law so your next step is to do that, not by removing your dog but by again advising the Owners Corporation (O/C) that you’re keeping the dog on your lot, by including a copy of your original advice to the Strata Manager (or at least a reference to it if verbal), that you will comply with all provisions of the By-Law, and that you indemnify the O/C and other Owners as required.
It’s a well accepted principle that a Plan’s (Special) By-Laws cannot be harsh or oppressive, and that any relating to the keeping of animals cannot unreasonably withhold consent.
The latter expectation is reinforced by the former Fair Trading Minister’s statement, made in the context of the Strata Schemes Management Bill that’s currently before NSW Parliament, that (the Bill) would “…..bring some fairness back to strata living for pet owners and end the situation where they have to choose between giving up on their new homes or having a much-loved companion animal given away or put to sleep.”
Clearly the Government, and therefore its Agencies, has a predisposition to strata residents being able to keep their animals subject to conditions, so despite your dog’s long legs it’s in my opinion highly unlikely that any attempt by your O/C to “evict” it or your neighbour’s dog would be upheld by the NSW Civil and Administrative Tribunal (NCAT).
So just respond to the Notice as required, in the suggested terms, and politely suggest that your O/C takes account of the facts that you did previously advise the Strata Manager, of the established principles outlined here, that your occupancy is casual, and that you are prepared to take the matter to the NCAT if in your opinion the O/C acts unreasonably .
Al that said… I now just hope that you’re in NSW!
Fuzzy – without reading the entire By-Law, it seems to me that your Owners Corporation (O/C) is trying to ensure that for (valid) reasons of preventing so far as is possible the transmission of “impact noise” from Unit to Unit, that floorcoverings are replaced on a like-for-like basis.
So clearly that objective as legitimised in your Plan’s (special) By-Law rules out all of your listed options, but have you considered high quality vinyl (and cat-friendly) flooring laid over underlay of similar quality (6 star)?
As a compromise following on-going noise complaints, a couple of first floor Units in our Plan were given consent to replace cheap floating floors with a vinyl product, and after almost 3 years we’ve had no further complaints and the finished product looks great; one actually looks like polished concrete!
I have the names of the suppliers, but as neither was engaged by me and there are numerous numbers of them in NSW and elsewhere, I’ll not disclose those.
Should you decide to go the way of vinyl, I suggest in the strongest possible terms that your spec. to anyone from whom you obtain quotations includes a requirement for the combination of their vinyl product and underlay to have an “impact noise rating” (Ln,w) that’s at least equivalent to the 30-35 achieved by carpet / underlay over a 200mm concrete raft slab; that’s entirely achievable by a supplier who knows what they’re doing!
(Oh, and when you have time, perhaps read this from earlier forum discussions on the topic).
Wirihana – your original post mentioned that you were “keeping” your dog on the Plan for only one or two days per week, and I incorrectly interpreted that was on a casual basis.
Now you say that it’s been one or two days (or more?) per week for four months, so clearly you’re in breach of the By-Law and as I foreshadowed you should have at least advised your Owners Corporation (O/C) that you’re keeping the dog on your Lot, and indemnify the O/C and other Owners as required.
You’d be well advised not to become involved in semantics and to accept that you’ve done the wrong thing, and that’s particularly important as you’ve now been issued with a Notice to Comply.
With regard to the eviction of a tenant for what I assume was a similar breach of the By-Law, the delay was more than likely due to the fact that and O/C cannot evict tenants (mores the pitty) and it therefore had to prevail upon the Owner / Landlord or their Agent to travel the convoluted route necessary in order to initiate that.
“keep” means to have on your Lot or on the Common Property, so KWP’s right about the Owners Corporation (O/C) being able to deny you permission for your dog, even on a casual basis.
Again, and depending upon the wording of your Plan’s ridiculously prescriptive By-Law such as where you may need to advise the O/C of the dog being “kept”, surely nobody’s going to quibble over 100mm even if they could measure your dog’s legs!
Adrian – everything that KWP’s said is generally factual although I doubt that Owners Corporations as your business’ stakeholders would be too impressed with that straight forward approach.
I often say that nothing in Strata is as straight forward as it seems, and as much as I admire your initiative albeit it coming from business-interest, I’m afraid that it’s one of those.
Briefly, the installation of the windows that you provide constitutes an alteration /addition to the common property of the Owners Corporation (O/C), and so requires the prior consent of the O/C via a Motion put to all Owners at a General Meeting, where >75% of those in attendance need to vote in favour in order for the Motion to pass.
If the installation is consented by that means, then the works can proceed subject to any conditions included in the terms of the O/C’s consent, but it’s applicable only to that one project / owner / unit.
The Special By-Law that you refer to only becomes necessary if the O/C, after consenting to the installation, wishes to transfer the responsibility for the on-going maintenance, repair, and replacement of the secondary windows form itself to the current and future Owner/s of the unit concerned.
Special By-Laws of this type need to be agreed to in writing by the Owner who’s to be bound by it, but that’s the only hurdle that I can think of to the O/C voting to create and register a generic Special By-Law permitting the installation of secondary windows (or anything else for that matter), and the O/C could overcome that hurdle by requiring each Unit Owner to so agree at the time that they advise it of a proposed window installation.
So in summary, an O/C may by the process outlined vote to create and register a Special By-Law to permit the installation of your secondary windows, that would apply to all Units in the Plan, and with each Owner then needing (only) to advise the Executive Committee in writing of precisely what is proposed and include a written statement accepting the conditions of that Special By-Law (SBL) and in particular an acceptance of the on-going maintenance responsibilities.
The Office of Fair Trading is right in their advice that “anyone can prepare a by-law” and that it costs “about $100 to submit” ($104.50 actually) to NSW Land Property Information for attachment to the Strata Title of the Plan, but I’d strongly support your desire to consult with an experienced Strata Lawyer such as THIS one who sponsors this forum about possibly preparing “shell” documents (i.e. a SBL and Owner acceptance) that would permit a perhaps parochial O/C to write-in its own conditions (if any) before taking a vote, and if passed to execute and submit it for subsequent registration.
No not really, but reading THIS publication by WorkCover NSW may prove enlightening.
I didn’t know FlatChat was a quiz forum, but there are a number of things that are potentially wrong with the process, including (but to cover my backside) not limited to – that if yours is an entirely residential Plan then the inspections weren’t legally required in the first place, and that if the strata managers have been properly delegated to arrange maintenance and similar activities of the common property then it’s they who are responsible for exercising due-diligence with regard to workplace safety.
I’m almost afraid to ask, but did I get >50%?