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Thanks for that additional information Luke.
You’re right in that the information I initially provided seems to be in general alignment with what I now understand about the terrace owner’s proposal.
That owner will need to satisfy the requirements of the Owners Corporation (O/C) and be able to demonstrate that before the Heritage Council and your Local Council will consider their Development Application, so that’s why their proposal is now with your Executive Committee and Strata Manager.
The issues are complex, and the O/C will need some competent and practical advice, particularly with the complexities of exclusive use (perhaps unnecessary if no one other than the proponents could use the new areas), with the SBL provisions about who it is will be responsible for the ongoing maintenance and repair of the new areas, and the assessment of any payments to be made to the O/C in addition to those involved in it and the Strata Manager collating everything and convening the General Meeting.
The terrace owners will need to make you and the other owners fully aware of their proposal, because in order for a SBL to pass a minimum 75% of owners present at the Meeting both personally and by proxy need to vote in favour, with that percentage determined from the unit entitlement of those owners.
Good luck with it all, and remember there’s a lot of competent and practical information collectively available on FlatChat.
Luke – I must admit that I’m a little confused about the precise nature of the works you say is proposed by the Owner of the Heritage Listed Lot, like with part of that being on the first floor with 2/3 of its area being above the ground floor (?), but in the first instance (in NSW) all such works except those of a very minor nature require the prior consent of the Heritage Council, and following that the consent of the Local Council.
As a general response to your three (3) questions, given you haven’t supplied the requested details of your State/Territory when you registered….
1) In NSW an Owner can legally develop on Common Property provided they first obtain the written consent of the Owners Corporation (O/C) at a General Meeting. Depending upon the extent of the renovations, your O/C may have to commission a Strata Sub-Division (re-survey the property) and a Valuation to update the Strata Plan and to adjust the Unit Entitlement for the renovated Lot respectively.
2) There are a few possibilities, but it’s common for such Owners to make a payment to the Owners Corporation, and again the amount of that payment and the frequency of it (i.e. once-off or periodic) is usually determined not on the basis of any compensation, but rather on the basis of the O/C’s costs (e.g. for the survey, the valuation, and to draft and register the special by-law), plus the amount of any increase in the market value of their Lot consequent to the consented works and which is not in the O/C’s opinion properly reflected in any valuation, and the “value” (e.g. in terms of attractiveness at sale) of any special privilege such as their exclusive use.
3) As any Special By-Law (SBL) requiring the Lot Owner instead of the O/C to maintain the entirety of the consented works and granting special privileges (e.g. exclusive use) needs to be consented to in writing by that Lot Owner, then for that reason alone it’s essential in my opinion for the detail of that SBL to be agreed and the document Registered before any consented works commence.
If you post some further details including in which State/Territory your Plan is located, the wording of the proposed SBL, and some clarification concerning the nature/design of the proposed renovations then I’m sure you’ll receive some more targeted responses.
Bear – I’m not surprised by Fair Trading’s reported response as they’re typically uninformed with regard to such matters, but I am surprised by Sydney City Council’s reported response, because they’ve been outspoken on such matters and typically their consents for the construction of multi-unit complexes include conditions stating that the building provide may only be used as a residential complex and not accommodate “more than two or three adult persons per bedroom”.
In any case, there’s no “superior law” of relevance that I’m aware of in NSW, although I’m sure that NSW Fire & Rescue quoted similar occupation rates as being desirable for the bedrooms of apartment buildings after a disastrous fire in an overcrowded building in Liverpool.
So your Owners Corporation (O/C) can legitimately make a Special By-Law to prevent “hot-bedding” (which is what you’re doing) based on the floor space and the numbers of bedrooms, furthermore members of the Executive Committee are entitled to inspect your Unit to check compliance, and as you’ll read in Austman’s post new NSW Strata Laws will further substantiate your O/C’s decision.
Anyway, you’ve got your response – and although I’m sure it’s not the one that you wanted, aren’t a couple of additional people enough to supplement your income?
Dudley – yes a Special Resolution can be voted upon by mail, by your absent owner “attending” the General Meeting by way of a proxy granted to someone who is personally attending, and at their option by instructing that person how to exercise that proxy; i.e. how to vote on the Motion.
In order for a Special Resolution to pass, there needs to be agreement by ≥75% of those in attendance both personally and by proxy at the General Meeting, and whilst that could be 3 of the 4 Owners, remember that the percentage in favour is calculated on the basis of the total (lot) unit entitlements of those Owners ÷ the aggregate unit entitlement for the Plan.
As I said before, you only need the Special Resolution to actually adopt the Model By-Law #22 that’s already provided in the Regulation. There’s no need to then Register that as a Special By-Law!
Your O/C will then have the basis upon which to instruct its Strata Manager to include a proforma e-mail notification with the next Levy mail-out so as to enable Owners to provide that as their “address for the service of notices”.
Remember though, if an Owner chooses not to provide an e-mail address then you’re stuck with snail-mail for that individual.
Hope that’s cleared things up!
I’m not sure, although (in NSW) the only restrictions on the intent of a Special By-Law relates to it not being in conflict with a “superior law” of the State or Commonwealth, not restricting any “dealing” to do with a Lot (e.g. a sale, lease), not restricting the keeping of guide/hearing assistance animals on a Lot, and not restricting the numbers of people under 18 years who may reside in a Lot.
So if the residents are over 18 years, an O/C may get away with the placing of some limitations on adult occupancy rates, but let’s see what our original poster was trying to achieve and where they’re located.
KP – thanks for your comments, although I don’t think that I’m a “case” of the special variety
.On a more serious note, in my experience the problem is not so much in practically dealing with the requirements of NSW’s 17 yo Strata Legislation in a way that doesn’t burden those Owners who want to renovate their Lots, but with those Owners who just go ahead with renovations undertaken by their handyman mates without advising anyone let alone the O/C.
KP’s right; you don’t need a Special By-Law.
You could instead Specially Resolve (i.e. ≥75% of those in attendance at a General Meeting being in favour) to adopt the following Model By-Law that’s in Schedule 2 of the NSW Strata Schemes Management Regulation (2010);
22 Service of documents on Owner of Lot by Owners Corporation
A document may be served on the Owner of a Lot by electronic means if the person has given the Owners Corporation an e-mail address for the service of notices and the document is sent to that address.
OR
Simply put an identical Motion on the Agenda for your Plan’s next General Meeting, and if there’s a vote in favour on the basis of a simple majority, then instruct your Strata Manager to include a pro-forma request with the next Levy Contributions Invoice for Owners to provide an e-mail address for that purpose.
You probably could, but then (in NSW) the Residential Tenancies Agreement (Lease) specifies the number of residents that can legally be in a rental premises.
Perhaps a bit more information about the issue you’re trying to address and what State / Territory you’re in would enable some more targeted replies.
KP – I don’t know if your post was facetious, but just in case you weren’t just taking a shot at your NSW cousins, I thought I’d also clarify some matters.
Firstly and on the subject of Owners renovating their Lots, whilst the NSW Strata Schemes Management Act (which is under review by the way) requires those Owners to seek the Consent of their Owners Corporation O/C) in advance of those renovations commencing, a Consent made by way of a Special Resolution at a General Meeting is only necessary where the proposed works involves an addition or alteration to, or the erecting of a new structure on the Common Property, and a Special By-Law is subsequently necessary only where the O/C wants to make those Owners responsible for the on-going maintenance, repair, and replacement of whatever it is that they’re adding, altering, or erecting and they agree to that.
It possible and indeed usual for an O/C to create and register Generic Special By-Laws (SBL) allowing its Executive Committee (E/C) to grant Consent to the specific types of works with each having generic conditions, which in the case of our Plan applies to the installation of split-system air conditioners, replacing existing hotwater heaters with heatpumps, LPG systems, and/or solar systems, installing solar PV systems, and installing pay-tv.
Similarly and using one of your examples, where a proposed renovation involves a new kitchen or a new bathroom, and that involves an addition or alteration to, or the erecting of a new structure on the Common Property, then our SBL sets out the terms of a Generic Consent and some Generic Conditions applicable to that including the use of licensed persons, liability insurance, days/hours of work, storage of materials, disposal of debris, parking, and noise.
Clearly, where a proposed renovation doesn’t involve the Common Property, then the Owners seeks the O/C’s Consent in the normal way and only the Generic Conditions (above) apply as applicable.
So as you’ll see there aren’t 20 SBL’s for each of 20 kitchen renos, just a Generic one covering all renovations of that type, and finally in the case of our Plan, a “catch-all” SBL accompanied by a Register of Changes and Additions to the Common Property to cover the situation where a renovating Owner doesn’t seek the Consent of the O/C, and where that SBL says (in legal jargon) “if whatever you’ve done isn’t in the Register, then in terms of ongoing maintenance, repairs, and replacements to that, it’s all yours and that of every subsequent owner of your lot”.
That’s the real world, NSW edition (where it’s 2013 by the way; Ay).
KP – you’re selectively quoting again, and this time from the section of a Building Policy Addendum about floating floors; for your own piece of mind, you need to inform yourself about what a “lot owners’ fixture and improvement” comprises, and under what circumstances the Policy covering those items applies!
Enough from me on that!
As for the need for a Special By-Law (in NSW) to cover the works undertaken by the Lot Owner, there was I think some initial confusion about whether the gazebo and paving was on Common Property or on the Lot.
From my perspective, as dogears mentioned that the installation of the gazebo and paving required the consent of Local Council, I concluded that the bulk of the finished product would have been substantial enough to warrant the O/C’s Consent on the basis that it may have affected the appearance of the Lot (By-Law 17), and that would have been the time to address the issue of insurance responsibility, maintenance, and repairs.
I was confused about dogears‘ later post 8, where it’s mentioned that (some) By-Laws were recently amended “to ensure Owners are responsible for repairs to their Lot which involve Common Property”, and that’s why I asked in (post 9) what State/Territory dogears‘ Plan is located, the process the O/C used to amend its By-Laws, and what it was trying to achieve by that amendment?
dogears siad …Just to clarify, the garden space is on the Owners’ lot so I can’t see why the OC should include the structure etc in its policy. Not that it would make much difference given the insured value overall anyway.
I didn’t suggest that the O/C should include the gazebo in its insurance policy; in fact I said that the reverse applied unless the structure was damaged by some failure of the Common Property or during the O/C’s repairs to that Property.
dogears said …I also point out out that we have recently amended our by-laws to ensure Owners are responsible for repairs to their Lot which involve Common Property because one Owner has on two occasions carried out renovation work on his lot which affected Common Property, without prior authority from the EC, OC or Strata Manager.
This sounds odd; would you mind advising what State/Territory you’re in, the process the O/C used to amend its By-Laws, and what you were trying to achieve by that amendment?
In my opinion, it doesn’t matter whether the gazebo is on Common Property or on the garden space of the Lot concerned, because if it’s on Common Property then it’s a “addition”, and if it’s not, then it’s something “affecting or changing the appearance of the Lot”; either way (in NSW) the Lot Owner needs to seek the Consent of the Owners Corporation (O/C) to erect it and Jimmy’s Special By-Law (SBL) comes into play.
With reference to the responsibility for insurance of the Gazebo, that’s the Lot Owners problem and a SBL would formailse that, and if it’s damaged by a failure of the Common Property (e.g. the retaining wall) or as a consequence of the O/C addressing that failure then it’s covered by the O/C’s insurance.
One point of clarification regarding the insurance of “lot owners fixtures”. That’s a top-up cover provided on a per Lot basis which only comes into play if the value of a Claim exceeds the total sum insured for the Plan; like in the circumstances of a total loss. As I understand it, a “lot owners fixture” is defined as a structural improvement made by a Lot Owner and fixed to the Common Property, such that if the item was removed, then the Common Property would be left in a damaged state.
I don’t think that the Owners Corporation of Josho’s Plan would want to initiate legal proceedings against a foreigner residing overseas, or that it would be comforted by the likelihood that a Judgement may be ignored or by the prospect of some future Owner being required to pay the debt at Settlement sometime in the never-never.
The prospect of the foreigner’s local Property Manager being made responsible would I suspect be more attractive and timely, particularly as that Agent could make their Client’s Levy payments from the rent proceeds that they’d be holding, and again I suspect that Local Court action could be initiated to garnishee those funds.
Do any of our undercover Strata Managers have any first-hand experience with Josho-type problems?
Peter – you’re spot-on; couldn’t agree more!
Dudley – I think you’re in NSW, and you need to know that the Cl.62(3) of the Strata Schemes Management Act has an almost identical provision to the one referenced by Peter.
By the way, if the owner who wants the Owners Corporation to repair cosmetic flaws has a gyprock ceiling, they haven’t experienced the mess that activity would cause!
Firstly, whilst I don’t reside in WA and more’s the pity, Strata Law over there would I’m sure make the building’s raft slab, which is also the ceiling of the garage space, Common Property and therefore the responsibility of the Strata Company.
You haven’t said whether your vehicle needs to be repaired post the depositing of that lime-laden liquid, but even if it only needs to be cleaned and detailed, the best way to jog the Strata Company into action would be to lodge a Statement of Claim against them for the costs of you having that and any other remedial work on your vehicle completed, incorporating a reasonable time-frame within which you expect remedial works to their Common Property (ceiling and drainage) to be completed.
You need to get a quotation, ascertain who the Strata Managers are, and then lodge your Statement of Claim with them, and even if the “event” is not covered by the compulsory insurance (incl. liability) that the Strata Company is required to hold, their liability remains.
As you’re a tenant, it would be prudent to copy everything to your Managing (Rental) Agent for on-forwarding to the Landlord/Owner, because even though I’m not familiar with WA Tenancy Laws, I’ll bet they’re very similar to what’s in place here in NSW, where you would be entitled to claim a rent reduction due to part of the Rental Premises (the garage) being unusable.
So include a note to that effect with the copies that you provide to your Managing (Rental ) Agent, because the possibility of a rent reduction claim will no doubt encourage your Landlord, who is a Member of the Strata Company, to push things along with them.