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If you were to regard your Owners Corporation as a private company, your Executive Committee as its Board of Directors, your Strata Manager as its paid Consultant, and yourself as a part owner of the company then that would be a good analogy.
So of course you’re entitled to view all the Owners Corporation’s records, including those relating to legal advice / actions, where in NSW and with reference to the Strata Schemes Management Act (SCMA), those must include “copies of correspondence received and sent by the owners corporation” [S104 (c)], “records served on the owners corporation by the strata managing agent relating to the exercise of functions by the agent” [S104 (g)], and “any other record or document in the custody or under the control of the owners corporation” [S108 (g)]. So surely those provisions will well and truly cover what you’re looking to peruse.
I don’t know on what basis you inspected the records on the occasion to which your post refers, but if your “Board” and your “Consultant” refuse to oblige on this occasion, I suggest that you put your request in writing to the Secretary of your Executive Committee and copy your Strata Manager, specifically referencing the records you want to inspect at the offices of the latter, and advise that your request is made pursuant to S108 of the NSW Strata Schemes Management Act.
On your side, there’s a prescribed fee of $30 for the first hour of your perusal pus $30/30 mins afterwards, both payable to your Owners Corporation, and whilst you can’t take any papers away from the Strata Manager’s offices you can take notes and make photocopies.
On your Strata Manager’s side, there’s a Penalty of $300 if the records held by them on behalf of your Owners Corporation (of which you’re a part owner remember) are incomplete or otherwise not in accordance with the SCMA.
If all else fails, it sounds to me like there are sufficient like-minded Owners to secure ≥25% (by Unit Entitlement) support for a “requisition” to the Executive Committee Secretary to convene a General Meeting of the Owners Corporation to review the documents and to consider a Motion to continue legal actions. If those actions are quoted (and they have to be) to exceed the lesser of an amount equivalent to $1K/Lot or $12,500 in total, then the Meeting needs to resolve to proceed or to knock a continuance of those legal actions on the head!
Just in case the quoted legal expenditure is less than the threshold (above), then you should include a Motion to restrict the delegations of your Committee and/or the Strata Manager such that the approval of legal actions/costs resides solely with the Owners Corporation.
There are more radical solutions available, but hopefully one of the above will work for you. I just hope you’re in NSW because every State and Territory is a little different legislatively, but the principles still apply.
I don’t want to go on about this, BUT….
It’s difficult to educate resident owners about the challenges of strata living, but try doing that when 80% of the residents in your Plan are tenants, whose Property Managers don’t provide them with a copy of Fair Trading’s “Strata Living” Publication as they’re required to, don’t provide them with a copy of the Plan’s By-Laws as they’re required to (even though I’ve placed a downloadable copy of our Plan’s By-Laws & Special By-Laws its website), and don’t provide the O/C with S119 Notifications unless I insist, and insist again!
I’m still insisting on S119 Notifications from the seven (7) Real Estate Agencies who manage rental properties in our Plan, because as a step towards Struggs’ “pds” initiative, I provide every new tenant by name (off the S119) with a “welcome” letter to explain the 10 top challenges of living in our Plan, together with some complementary information about garbage collection, security access etc.
That seems to work, but even on those few occasions when it doesn’t it’s good ammunition for the Consumer Trader & Tenancy Tribunal’s (CTTT) convoluted processes when we have to seek Orders to Comply; which leads to one of my submissions to the Strata Reform Process to the effect that Owners Corporations should be recognised in the Tenancy Division of the CTTT so that they can, when all else fails, seek Eviction Orders against tenants.
G’day Struggs and Scotty – neither of you will be surprised when I say that I concur absolutely with everything that you’ve each said!
Right now 22 of the Units in my Plan are permanently rented (80%) and 7 are for sale, so I’m constantly fending-off Property Managers (and I use the term “manager” loosely), Real Estate Agents, and Investor-Owners who all want the Owners Corporation to pay for simply everything!
Why? Well the Property Managers want to justify their tenuous existence by not spending any of their Clients’ rent money, the Real Estate Agents want their properties dressed-up to get a sale, and the Investors want all of the above and more plus no increases in their Levy Contributions.
And who do they all hate? Yep…. little old me, who does absolutely everything that the Owners Corporation is supposed to do and which has been budgeted for, and absolutely nothing that’s it’s not responsible for, including the maintenance/repairs of common areas within Lots, the extent of which has been made worse because the Owners long ignored them, and now want me to jump through hoops because they’re selling!
Well I don’t jump – well at 198cm & 135kG not very well and not for long anyway
.A decision to make changes and/or additions to the Common Property (in NSW) can only be taken at a General Meeting of the Owners Corporation, where ≥75% of Owners present either personally or by proxy vote in favour of making the changes/additions; this is called a Special Resolution as opposed to an Ordinary Resolution where a simple majority applies; see S65A of the NSW Strata Schemes Management Act (1996).
It follows that neither your Executive Committee nor the Strata Manager can authorise or make the changes referred to in your post.
You should contact whoever you believe is behind the decision and advise them of the above, and advise that unless the work ceases immediately (please, and hopefully it will) you will immediately seek the intervention of the Consumer Trader and Tenancy Tribunal (Strata Division) by way of an Interim Order to restrain any further works.
So far as the design of and the contractor/s involved in the proposed works is concerned, that should all be tabled at the (Extraordinary) General Meeting – and by the way if the convening of that Meeting is delayed in any way, then 25% of Owners can request that be convened by way of a “requisition” to the Secretary of the Executive Committee (like a petition setting out what you want discussed and why) who must then act on that “without delay”.
Good advice – remember also that the area shown on the Strata Plan may (and usually does) include the area of any carspace and/or storeroom that “forms part of the Lot”, although the 2m² that you seem to have gained is insufficient for that to be the case.
The definition that “Scotty’s” provided is the one that’s commonly applied to a measurement of “floor area”, whereas your Developer is quoting “metres internally”, and as they’re sometimes as tricky as their measurement definitions, I’d take-up the suggestion of spending a few extra $ on having your Unit expertly measured before you make your final committment.
If you’re an Owner, then contact your Strata Manager and if you’re a Tenant contact your Property Manager (Rental Agent). If your key is undamaged, you should be issued with a new one at no cost, but otherwise you may need to pay for a new key depending upon the procedures in place at your Building.
A note to ‘the Swede’ – If you’re an Owner, I’d strongly suggest that you ask the Secretary of your Executive Committee to arrange an inspection of the Unit below yours, because IF the exhaust fan above the range hood has been ducted into the wall cavity as you suggest, then it’s created a very real fire hazard!!
Whilst the air/fumes may escape up the cavity, the particulates such as grease/oil will not, and will instead deposit on the inside faces of the cavity creating a volatile fuel source on the first occasion that something on the cooktop ignites.
Thanks for that clarification Paul, and I’m glad (for your Owners Corporation) that things are not as out-of-control as I initially suspected, although I don’t know how your Plan’s Strata Managers and successive Executive Committees (E/C) have managed to allow such significant extensions to a Lot to not be shown on an amended Strata Plan and not be reflected in a revised Schedule of Unit Entitlements for that Lot.
How to move forward?
Well even though I don’t agree that unrestricted access over an Exclusive Use Area in order for an Owners Corporation (O/C) to access its Common Property isn’t possible, I agree it could be read as contradictory depending upon the frequency of the “un-restriction”.
Nonetheless it seems to me that your O/C is being a little “dog in the manger” about the storeroom, which it really doesn’t need for any significant or critical purpose; does it? So you’ve probably hit the proverbial nail on the head in your “unfailingly reasonable and logical” statement as the best way forward.
So taking that approach on-board, I think your E/C should advise the Owner of the extended Lot that whilst it will not itself approve of his proposal, it will support the O/C’s adoption of his amended Strata Plan at a General Meeting of all Owners provided he first undertakes (in writing) to:
1) Pay the O/C’s costs to have a Revised Schedule of Unit Entitlements prepared by a Registered Valuer in advance of the General Meeting, showing a revised Entitlement for his extended Lot which recognises the additional maintenance and repair responsibilities of the O/C (e.g. the building & gutters you referred to), and;
2) Pay the O/C’s costs to lodge that Revised Schedule of Unit Entitlements with NSW Land & Property Information, including any (costs) associated with the need for Orders by the Tribunal prior to that lodgement, and;
3) Purchase the Common Property Storeroom from the O/C for an amount assessed by the (same) Registered Valuer who prepares the Revised Schedule of Unit Entitlements.
I’m inclined to think that your E/C and the O/C should just follow your “unfailingly reasonable and logical” approach, and not worry itself with the 20 years of un-adjusted Levies that the Owner of the extended Lot benefited from, or with the fact that he may well be getting everything or order prior to refinancing or placing the property on the market for sale; after all your O/C has itself been complicit in all that by not closing all the loops when its then E/C consented to the extensions.
Hopefully the Owner of the extended Lot will accept this approach, but if not your O/C should still convene the General Meeting and put the E/C’s approach as an Agenda Item before all Owners (whom it should lobby in advance), and seek a Special Resolution in support of 1-3 (above), and implement that via an Order of the Tribunal.
Everything that “Scotty” has advised is correct, however IF less than 2 years has elapsed since your Strata Scheme was Registered then a revision of the Schedule of Unit Entitlements for as few as one Lot can be achieved without the need for Orders by the Tribunal, and without the concurrence of all Owners.
If that’s the situation with your Plan then please advise and I’ll fill in the blanks.
If I can butt in on a couple of issues….
The Special By-Law should not be exclusive to your proposal, but rather should apply to all Owners – including to those who have already enclosed their balconies (ideally) and to all those who may wish to do so in future.
For the above reason, and additionally because the Strata Regulators (the Consumer Trader & Tenancy Tribunal in NSW) look favourably upon By-Laws that are advisory rather than prescriptive and/or prohibitive, whatever wording your Executive Committee decides upon shouldn’t prescribe what type of windows must be fitted, but instead speak to features such as aluminium, non-reflective, consistent colouring, in keeping with the facade of the Building etc etc. Like what happens if a product that’s available now, is unavailable next time an Owner needs to comply with a prescriptive condition of the Special By-Law?
IF your Committee (or a Member) has/is a reasonable scribe who can avoid legalese and ambiguity, then there’s no reason why the wording of the Special By-Law cannot be prepared and agreed “in-house”, and be submitted for Registration to Land & Property Information using Form 15CB (in NSW) for the princely sum of $102.00.
Paul,
I know this wasn’t one of your specific questions, but to clarify, are you saying that 20+ years ago the current or previous Owner of the Lot in question undertook renovations that increased the area of that Lot by 40%, and that as those renovations have not ever been noted on the Strata Plan (Title) or reflected by the Lot’s Unit Entitlement, it’s likely that they were never consented to by the Owners Corporation (O/C) and that the area is still Common Property?
It’s more important to sort out the above in my opinion, but in response to your questions about the storeroom:
1) Except in an emergency Yes, unless the O/C has obtained an Order from an CTTT Adjudicator
2) Yes to both, although as the Owner’s had exclusive use for 20+ years I don’t like your O/C’s chances of now refusing to grant that under a Special By-Law, with Conditions – including one about the O/C’s unrestricted access (to the storeroom).
Sassy72 –
OK, you’ve confirmed that the driveway is Common Property (which I must say sounds strange given your description of the layout), and your next task should be to ascertain if what the tenant told you is true; assuming of course that you want him to stop parking on the driveway.
If that’s the outcome that you want, then your Strata Manager should know who the tenant’s Property Manager (Rental Agent) is from the Notification received under S119 of the Strata Schemes Management Act (in NSW), so ask him/her to contact that person and find out if the driveway is included on the Lease. You should also keep your Executive Committee Secretary in the loop.
That said, whether the use of the driveway is or is not on the Lease, your Strata Manager needs to advise the Property Manager that their tenant is parking on Common Property in Breach of your Plan’s By-Law, and that if he doesn’t stop doing so the Owners Corporation will issue him with a Notice to Comply (with the By-Law).
As Cosmo said, if you don’t nip this in the bud it has the potential to become endemic, and that’s not desirable.
So far as any action against the Landlord is concerned, again, firstly find out if what the tenant said is true and maybe come back with another post at that time.
Charlie – my last post must have been “almost it” !!
I only mentioned the “or” option involving a valuation of your Lot and a Revised Schedule of Unit Entitlements because your earlier post stated the some other Owners in your Plan had the irrits because you had the use of the landing, but it wasn’t reflected in your Levies.
Cl 53 of the NSW Strata Schemes Management Act states that an Exclusive Use By-Law may include Conditions – such as one “requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation“.
As this (above) is the more commonly adopted option for circumstances such as yours, probably because it’s the one used as an example in the Act, just steer your Owners in that direction at the Meeting, ignore the “or” option, and that should negate any ambiguity and result in a determination of the once-only payment that you prefer.
By the way, it’s usual for the beneficiary of the Exclusive Use By-Law to pay for its drafting and Registration, with the quid-pro-quo being that it cannot be revoked (ever) by the Owners Corporation without the concurrence of the Owner from time to time of your Lot (i.e. you and any future Owners).
Good luck!
Charlie – I think your questions have been answered via responses to your other post, but with regard to this one and my response to the other post, I’d add that if you’re successful in negotiating the exclusive use of your landing, the Owners Corporation can either request a once-only contribution from you (to its bank account of which you benefit from a 1/13 share anyway) of an amount equivalent to the increased value of your Lot that arises because the landing’s effectively part of it or submit a “Revised Schedule of Unit Entitlements for one or more Lots” supported by a Valuer’s Certificate to NSW Land & Property Information and thereby formally revise the Levies applicable to your Lot.
Both oprtions require a Special Resolution at a General Meeting (at least 75% of Owners present at the Meeting in person OR by proxy have to agree), and whilst the former option is the more common approach, which shouldn’t amount to much ($) as no other Owner/s ever have or could make effective use of the landing anyway, but as some Owners have queried your Unit Entitlements / Levies already, the latter may suit them.
That’s it from me.
Charlie – I haven’t experienced a similar situation as our Plan is older, and therefore all balconies form part of the Lots as opposed to being Common Property as is your case
S62 of the NSW Strata Schemes Management Act (SCMA) places an absolute obligation upon the Owners Corporation (of which you are 1/13th) to “…properly maintain and keep in a state of good and serviceable repair the common property…” UNLESS it determines by way of a Special Resolution at a General Meeting that it’s “inappropriate” to repair (any part) of that common property.
If the Owners Corporation properly resolves not to repair the tiled landing outside your Lot, and that means to not put it back the way it was, then enacting that resolution must “…not detract from the appearance of any property in the strata scheme”; and that includes your property [S62 3(b)].
So I’d conclude that your Owners Corporation cannot Specially Resolve to not replace the concrete landing and the tiles, if that would detract from the appearance of the Common Property and/or of your Lot.
Gently, gently, catchy monkey … so I’d approach the Members of your Executive Committee and suggest to them that not properly repairing the Common Property could place them in breach of the SCMA, and depending upon your financial position, perhaps offer to pay for the tiles if the Members would support an Exclusive Use By-Law in your favour. After all, that would remove any further maintenance costs by the O/C for the landing / tiles.