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Depending upon the By-Laws that your Owners Corporation has adopted, there’s likely to be one that says ” the owner or occupier of a Lot must not, without the prior written approval of the Owners Corporation, maintain within the Lot anything visible from outside the Lot that, viewed from outside the Lot, is not in keeping with the rest of the building”.
So I’ll sick with my original advice:
… it’s always best to advise the Owners Corporation (of which you’re a part by the way) of what you intend to do, even if you don’t require its consent.
Juliana – Buildings completed prior to 1 July 1988 are not required to provide a Fire Safety Certification or Annual Statements unless those buildings were the subject of a Council approval (e.g. for renovations) or issued with a Fire Safety Notice some time after that date.
I’m guessing that your Plan hasn’t been subject to the above, and that’s why your Plan’s fire safety inspection/certification was merely a recommendation from your Strata Manager as opposed to a statutory requirement, and also why an Owner could opt out.
So far as I’m aware, a Fire Safety Inspection conducted under the Environmental Planning & Assessment Act (NSW) has to be complete; that is where all required items and areas, including individual Lots, are inspected. That’s why it is customary for the Owners of Lots that could not be inspected on the pre-advised day/s to be charged for a further visit by the consultant / inspector.
If your Plan’s inspection was as I suspect a voluntary one, then whilst not in any way suggesting that your Owners Corporation (O/C) should not act upon the consultant /inspector’s recommendations, I would suggest caution about the O/C providing that certificate to Council and to NSW Fire & Rescue unless and until it’s fully aware of any current costs of compliance, and of the on-going costs to maintain that.
Charlie, Jimmy’s advice is correct, and as you apparently have a copy of the Strata Title Plan and the Lot Plan that forms part of that, the thick black lines shown on the latter define the boundaries of your Lot, and there will be a Stratum Statement to define the top and/or bottom boundaries of that Lot; look for something worded like “the stratum of the Lot is limited to 3 metres above and below the upper surface of raft slab forming the floor of the Unit”.
In that example, you own and are responsible for everything up to 3m above the floor of your residence (like the pergola) and 3m below (like sewerage/water pipes serving only your residence).
Hope this further information assists, but as Jimmy advises, it’s always best to advise the Owners Corporation (of which you’re a part by the way) of what you intend to do, even if you don’t require its consent.
Advice to the Strata Manager if your Plan has one, and to the Secretary of your Executive Committee if it doesn’t.
Firstly, in NSW no By-Law is legal unless it’s been Registered and placed on your Plan’s Strata Title by Land & Property Information (incorporating the former Land Titles Office), so check with your Strata Manager about whether that’s been done.
Whilst the issues you raise are numerous, the same principles apply. Those being that if the By-Laws (actually Special By-Laws) were resolved (voted on and passed) by the Owners Corporation AND they’ve been Registered, then all works completed in accordance with those are legal provided the Proprietor having those works undertaken has advised the Owners Corporation (O/C) accordingly in writing, and the O/C has acknowledged that advice in writing and included any conditions contained in the By-Laws – such as who’s responsible for the ongoing maintenance of whatever’s been done (usually the Proprietor).
With regard to the damage caused by the water entering through the roof tiles, it’s up to the neighbours to firstly assure themselves that the damage is confined to the Executive Committee (E/C) Member’s Unit, and secondly to inform the remaining E/C Member and the Strata Manager about what’s happened and about the fact that the works are about to be undertaken on Common Property (roof and ceiling) for which the Owners Corporation is responsible.
Same approach with the ceiling fan, the cracked ceiling, and the balcony tiles – where the other E/C Member needs to instruct the Strata Manager to do whatever needs to be done to ensure that the By-Laws and Legislative requirements are complied with.
It’s clear that you have one of those Proprietors who thinks that the rules don’t apply to them because they’re on the E/C, so I hope that the other E/C Member’s prepared to instruct the Strata Manager to bring that Proprietor to heal (they should know how), and that approach is supported by the O/C as a whole.
If that overall approach stalls, then I’m sure that others on this Forum will advise you, as one Owner, about how to use resources such as the Consumer, Trader, and Tenancy Tribunal (in NSW) to get things moving.
I don’t think you’re at all out of line. The Caretaker may be within their rights to lock the meter boxes to individual Units for safety reasons, but they are also under an obligation to have someone available to unlock those whenever maintenance is required, and to do that quickly in an emergency.
Whether or not the Caretaker is able to charge you a fee to unlock your meter box is something that you’ll have to check in their Agreement with your Owners Corporation (O/C), but whilst any fee that may be permitted cannot be “charged to your levies” it can be included as a separate amount on your Levy Contributions Notice (invoice).
If your Levy Contributions Notice arrives before you can resolve all this with your O/C and Strata Manager, then just pay your Levies and ignore the fee.
On a related issue, in NSW if the meter boxes also house the meters, then they may only be secured with a lock issued by the electricity supplier, to which most electrical contractors have a key. Perhaps that’s the “tradie” lock that your Caretaker was referring to.
Kathsoo – If I can use my infamous shoe-box analogy……..where that box depicts a Unit / Lot in the Strata Plan with numerous dividers fitted internally to create compartments (rooms).
Unless your Plan has in the past resolved to create and register a Special By-Law covering the replacement of floor and wall tiles, then (in NSW) convention dictates that the tiles fitted to the inside base of the box and on the inside of the perimeter sides at the time when it was built are the Owners Corporation’s (O/C) responsibility, and those anywhere on the dividers are the Owner’s responsibility.
Tiles fitted anywhere on the base, perimeter sides, and dividers of the box since it was built (i.e. renovations) are the current Owner’s responsibility entirely, and the O/C’s consent should have been obtained before those replacements were fitted, and must now be if further replacements are now proposed by Owners.
By the way, any consent that the O/C may give to Owners wishing to now replace tiles anywhere should include a proviso that the on-going maintenance / repair / replacement of those is the responsibility of the Owner from time-to-time of the Lot; just in case workmanship is poor or they use expensive tiles on areas for which the O/C would otherwise be responsible.
Finally, as Kiwipaul said, the O/C could resolve at a General Meeting to replace tiles that aren’t the originals and/or are on the dividers, but that would be a dangerous precedent in my opinion as that type of resolution only (and infrequently) arises when there’s a maintenance issue (e.g. structural) within the shoe-box that’s affecting the one next door / above / below.
I hope that this analogy has simplified rather than complicated my reply.
Kiwipaul – yes you’re right, and here’s the relevant clause under S65A of the NSW Strata Schemes Management Act (1996)…
2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
Agree with all of that, except ……
@ JimmyT said:…. and my reading of that is that the by-law isn’t valid if it doesn’t say who is responsible for maintenance.
…. because IF the pergola’s actually been authorised by the Owners Corporation (O/C) by way of Special Resolution (to add to the Common Property) and the resultant By-Law is silent on the subject of on-going maintenance, then it is still valid and by default the O/C is responsible for all maintenance.
Lastly, if the pergola meets the requirements of State Enviromenetal Planning Policy 2008 (SEPP) then it would not require Council approval, BUT if it does not meet those requirements and doesn’t have Council approval, then it’s an illegal structure under an Act that trumps whatever authorisation the O/C may have given.
So maybe ask your acquaintance to check the pergola against the criteria in the SEPP, and if it’s not compliant in all respects, then Council may be the means to address his concerns and give the O/C the opportunity to re-jig its authorisation should it need to do so.
Somebody’s been reading our posts, because this Media Release was issued yesterday by the NSW Office of Fair Trading.
33tony – After a Development Consent (DA), and I think even after a Certificate of Occupancy has been issued, the original Applicant (e.g. the Developer) can apply to Council for approval to modify any past Consent under the provisions of S.96 of the NSW Environmental Planning and Assessment Act (1979).
Requested modifications have to leave the development “substantially the same” as in the original DA, and even though that criteria is subjective the changes you mention in your post would be permissible under S.96(2).
So check that possibility with Council in the first instance, but if there have been no S.96 Modifications approved, and the Construction Certificate which was likely provided by a Private Certifier engaged by the Applicant is inconsistent with what’s on-site, then it’s Council’s responsibility to ensure that the Owners Corporation (O/C) complies; assuming it’s the one who has left matters in a inconsistent state.
I’d recommend an approach to your local Councillor / Alderperson to stir Council’s Officers along, followed by a letter to the NSW Department of Planning, and if all else fails an Application to the NSW Land & Environment Court.
Ooops – I just posted at the same time as Scotty, but can add that the Legislation mentioned is administered by the NSW Office of Fair Trading (OFT) and that Strata Managers who are Members of Strata Community Australia (NSW) are additionally guided by a voluntary Code of Ethics.
Tracer – as others have said, a Special Resolution is not be required in order for the Owners Corporation (O/C) to vote on painting of the Common Property, but if your Executive Committee (E/C) is as you advised proposing “silver metal sculptures, signage, tiling” and those items are not there now, then they’re considered additions and /or alterations and/or new structures on the Common Property, and the O/C does need to vote on those by way of the Special Resolution as proposed [NSW Strata Schemes Management Act (SCMA); Cl.65A].
So you have a few options:
- Obviously the paint’s existing, and if everything else now proposed to be updated (i.e. sculptures et al) is just replacing something existing at the same locations, then a vote by a simple majority can decide whether the Motion is passed or defeated.
- If the sculptures etc are additions to what’s there now, or in different locations, then a vote by >25% of those in attendance at the Meeting, both personally and by proxy, can defeat the Special Resolution Motion or amend it to any extent that does not alter the intent of what’s proposed – and as that’s for the O/C to comply with its obligation to “properly maintain its Common Property” (SCMA; Cl.62), the intent’s pretty broad and there’s therefore ample scope for complying amendments!
- If like-minded Owners want to take a more moderate approach than to defeat the Motion (as you suggest), then consider it as put (i.e. as a Special Resolution) and >25% of those could then vote to defer any decision at all until such time as the E/C comes back with more details, obtains additional quotations, or as you suggest simply gives Owners some time to receive and contemplate the detail of the information that’s intended to be provided at the Meeting. Bear in mind of course that another General Meeting will need to convened to make a decision once everyone’s contemplated and had their input.
Lastly, if your Plan has >100 Lots and the expenditure proposed under the Motion exceeds $30,000 then a minimum two (2) quotations is mandatory under the Regulation (2010) to the SCMA, and, if you want to achieve your desired outcome then you’ll need to do some lobbying between now and the Meeting to get ≥25% on-side; that’s calculated by unit entitlement by the way, not by Lot ownership.
nyonyakay – in my opinion (non legal) despite the fact that the Executive Committee Member concerned may claim legal privilege over the items you want to inspect, as Scotty said he/she’s only in possession of those consequent to legal advice sought and obtained on behalf of the Owners Corporation (O/C).
In those circumstances, the information obtainable under Cl 108 also covers anything that’s “required to be kept under Division 2”, and that includes (at Cl 105) “any property (including records) of the owners corporation” that’s held by a “person” (like your E/C Member) where the E/C has required that person to hand-over that property/records.
So I believe you could inspect whatever records the E/C Member may have as those are the property of the O/C, but only if the Secretary of the E/C has serviced a Notice on him/her to make those records available; and that’s a possible barrier.
So Cl 108 is the best approach, but advise the Strata Manager in writing about what records you wish to inspect and if that leads to a dead-end, and your attempts at mediation with the E/C remain frustrated because it and/or the Member and/or the Strata Manager won’t cooperate, then you could lodge an Application with the NSW Consumer, Trader, and Tenancy Tribunal (CTTT) seeking an Order for the provision of the records you seek under Cl 156.
In addition to the records, like Scotty I’m as concerned about the process whereby the E/C Member instructed Lawyers to act on behalf of the O/C. Was there an E/C Meeting to make that decision, are there Minutes of that Meeting, and did the Lawyers’ estimate of costs exceed the limit imposed under the Regulation?
Hi Sassy72 – thanks for letting us all know the outcome; I for one often wonder what happens subsequent to answering peoples’ queries.
So I guess the landlord’s keeping that extra rent for the driveway – probably a good outcome though as I don’t know an easy way for an Owners Corporation to recoup that.