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Don’t stress… that’s often the outcome when people who do the wrong thing are found out, and have to “un-do”.
To avoid similar incidents, perhaps ask your E/C Secretary and Strata Manager about placing a Motion on the Agenda of the next General Meeting to, and for the princely sum of $104.50, amend the existing By-Law to the extent that privacy screens of a design available from the Owners Corporation are permitted.
Voodorp said: Hi Whale, We live in NSW, we bought the unit brand new and the pergola was and is attached to the unit wall.
(See more at: http://www.flatchat.com.au/forum/common-property/painting-of-pergola-1/#spPostForm).
I was initially going to recommend that you do some homework yourself by looking on the Strata Title Plan and/or on the Plan of your Lot, but upon reflection I’m going to recommend that you simply place your request for maintenance of the pergola in writing to the Secretary of your Executive Committee with a copy to the Strata Manager, add that in your opinion it’s Common Property, and request a written response within say 7 days together with their explanation of why your opinion’s incorrect if that’s the line that they take.
There’s only a couple of scenarios where the maintenance of the pergola could conceivably be yours, but rather than confuse what should a straight-forward issue let’s cross those bridges later if necessary.
This is another one of those “it depends” situations, but before covering the possible scenarios could you please advise in which State / Territory you’re located and whether the pergola is free-standing or attached to the wall of your unit?
delirial – I disagree with some of the other posts, in that your Plan’s existing By-Law states that nothing may be placed or hung on balconies that’s inconsistent etc etc, and the resolution of the Owners Corporation merely prescribes what is consistent with regard (only) to the design and appearance of privacy screens.
Given the plethora of “things” that could conceivably be “placed or hung”, that’s an entirely logical approach in my opinion, and what you need to do in order to resolve the issue of others placing other types / designs of privacy screens on their balconies is to remind your Executive Committee (E/C) of their obligations, and request the Secretary and/or Strata Manager to advise those Owners in writing of what the O/C has resolved is consistent with the aesthetics and appearance of the building, and instruct them to immediately remove whatever is not.
If as you suspect your E/C is unprepared to do that, then Jimmy’s post #3 sets out what then needs to be done.
Whether an O/C would be responsible for the proper maintenance of the entirety of works undertaken on and attached to its Common Property or only to that property as it was in its as-built form is a moot point.
Clearly the former is my view and KP has another, but I’m sure we’d agree that such matters only become issues when, as I originally suggested, an O/C becomes aware of such un-consented works and does nothing to remedy the situation.
braveheart is a member of the O/C, he’s aware of what’s occurred, and in my opinion has an obligation to act and inform and not to get involved in peripheral discussions around what may in future happen if he/she doesn’t.
braveheart said: Am I correct in assuming that by acting in this way he has ceded responsibility for his new toy to the OC and that the EC can simply arrange its removal so that the common property can be restored to its original condition?
NO not entirely, but rather only if there’s no Special By-Law (SBL) already in place that enables consent by the Executive Committee to such works, so you need to check that.
If no SBL exists, then again the Owners Corporation only becomes responsible for the works if it does nothing to remedy the situation as soon as it becomes aware of it, and the current Owner at some future time sells or otherwise disposes of their Unit with the air conditioner in place.
So if there’s no relevant SBL, you need to formally advise your O/C (Secretary) and copy your Strata Manager if you have one about the circumstances, and about the fact that the works recently undertaken are in breach of Sect 65(A) of the NSW Strata Schemes Management Act (1996).
That Section makes what then needs to be undertaken fairly clear, but in summary the Owner of the offending works must either reimburse the O/C’s costs to restore the Common Property to its original state (i.e. minus the air conditioning components) units), or seek the O/C’s retrospective consent to those works by way of a Special Resolution taken at a General Meeting, where ≥75% of those in attendance need to (poll) vote in favour in order to grant that consent with or without conditions such as noise levels and screening of the outdoor unit, and to the drafting and registration of a SBL with those and other conditions such as, and with the Lot Owner’s written consent, making the maintenance, repair, and replacement of the air-conditioning system the responsibility of that Owner and all future Owners of the Unit concerned.
Unless the O/C is of the opinion that the above SBL would be of benefit to all Owners, such as where others may in future seek consent for similar works, then it is customary for the Owner of the presently un-consented works to also reimburse the O/C’s costs for the drafting and registration, and for convening the General Meeting.
So get moving with your investigations and if necessary advice to the Secretary and Strata Manager, and as the Owner concerned is an E/C Member note that retrospective consent in the absence of an existing SBL is not something that the E/C can itself do.
I agree; you’d be far better to focus on outcomes as opposed to prescriptive standards, but if you want to get an overview of just how many variables need to be considered, have a browse through THIS, and the links on page 8 of the doc.
I don’t know why you’d want to know, but in NSW adjustments to the monetary value of a penalty unit is made by the Treasurer, via The Office of State Revenue, and under the provisions of a fancy bit of Legislation called the Statute Law (Miscellaneous Provisions) Act 1997; so a search on their website or in fact on any “regulators” website such as Police, Fair Trading, WorkCover, or EPA would be a good start.
The references to “penalty units” within Legislation where they apply is just a means to avoid prescribing monetary penalties that would need to be updated from time to time in accordance with the CPI (and Governments’ desire for more income) and therefore necessitate re-writing of the applicable sections of the Act/s.
One penalty unit is currently worth $110.00.
In my opinion (and experience) you need to avoid the inconsistency and illogicality of the Fair Trading and Tribunal processes if at all possible.
So if it’s not too late, try to obtain the support of other Owners whose Lots, together with yours, have a units of entitlement ≥ 30% of the total for your Plan, then you can serve a Notice on the Secretary stating that you (collectively) oppose the Motion to give consent to the hardwood flooring; that can head it off at the pass!
daphne – if you read Jimmy’s post (#2) and particularly the quote from Sect 117 of the NSW Strata Schemes Management Act then like me you’ll conclude that whilst your Plan’s Special By-Law (SBL) is perhaps intended to qualify Sect 117, it’s superfluous.
The SBL cannot prohibit residents and their guests from using any part of their Lot/s or the Common Property, and in any case who’s to say that the use of those areas at any time couldn’t create a nuisance or hazard to others? It’s the nature of the use that’s at issue, not the time.
newlsie – just to close this off, as Scotty advised, if you make a request to view correspondence in relation to a specific matter or matters, then that’s what you’ll receive – even though that infinitesimal fee will be again payable and the SM may charge a collation fee.
Newlsie – you haven’t said how the “subscription” is raised, on what basis, or where it’s held, but in an attempt to respond I’ll work on the assumptions that your Plan is in NSW, that the equipment in the common laundries is owned by the Owners Corporation (O/C), and that what it was trying to achieve via the “subscription” was a user-pays approach to the necessary repairs and maintenance of all that.
If that’s correct, then whilst I understand the rationale the “subscription” is in my opinion a differential levy and is therefore illegal as the special by-law is trumped by the Strata Schemes Management Act (a “superior law”), and in particular by Part 3 where the detail of what monies an O/C can raise, how it must be calculated, to which of the two (2) permissible Funds it can be deposited, and for what types of expenditures it can be withdrawn and used is prescribed.
It sounds to me that as only 50% of the Owners currently subscribe, the system’s not working too well!
What should be happening is that as with all expenses, the O/C calculates the amount of money needed to properly maintain its Common Laundries and the equipment therein, collects that together with amounts for all other budgeted items via its normal Levy Contributions, appropriately deposits those monies, and then expends it against accounts such as “maintenance of plant and equipment” and “replacement of plant and equipment” within the Administrative and Sinking Funds respectively.
In that way the O/C is able to track the amount of expenditure necessary to properly maintain the laundries, to share that deferentially amongst all Owners in accordance with the units of entitlement for their Lots, and to possibly convince the majority of those to have the drainage repaired and to accept a compliant pay-for-use system by coin or token operation of the machines, and with the monies collected being shown as income from “use of plant and equipment”.
All that said, nothing’s out-of-bounds with matters Strata until the proverbial hits the fan and/or until someone complains, but in my opinion the little extra effort necessary to do things the right way is almost always justified by the benefits.
The permitted Administrative and Sinking Fund levies raised by Owners Corporations (in NSW) are both differential because the units of entitlement for each lot, upon which they’re based, differ from one (lot) to another.
I’m aware of some Owners Corporations who have attempted to raise different levies and to apportion those on some other basis in circumstances such as where some Owners don’t have access to common facilities such as an elevator and do not want to contribute to its maintenance, but so far as I’m aware those types of additional levies are illegal.
If you could provide some additional information on the type of differential levy you’re referring to, for what purpose it’s raised, to which Fund it’s paid, and upon what basis it’s been authorised by the Owners Corporation, then I’m sure you’ll receive some more complete responses.
Prospective purchasers have no rights to inspect the records of the Strata Scheme unless authorised by someone who has, and that’s the Owner (Vendor) or the Mortgagee of a Lot, who can do so or authorise someone else such as a purchaser’s solicitor / conveyancer to do so, for the prescribed fee; currently $30 for the first hour, and $15 for each half-hour thereafter (or part thereof) made to the Owners Corporation.
Owners do have access to summary financial papers at each General Meeting of the Owners Corporation, but if more detail or other records is required then arrangements need to be made in writing, be accompanied by the fee, and be with 10 days notice to whoever it is that holds the records, usually the Scheme’s Strata Manager who by the way can charge additionally for any services that they provide such as photocopying.