› Flat Chat Strata Forum › Common Property › Committee orders removal of 15-year-old gate Gate › Current Page
OK, let me stress this is not legal advice and it is just my personal opinion, but I can’t see any contravention direct or otherwise of Section 108 of the Act. It says:
(1) Procedure for authorising changes to common property
An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
(2) Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.
OK, you have neither added to common property, changed common property nor erected a new structure under the terms of S. 108, so that claim is highly dubious. In any case, their claim should state how this “direct contravention” exists – not just some airy-fairy waving of generalisations.
If the gate has been there since the original owner sold it to you, then it was installed under the terms of the 1996 strata Act, and there is an interesting item in that Act.
113 Restrictions on powers of owners corporation during initial period
(1) An owners corporation must not, during the initial period … alter any common property or erect any structure on the common property otherwise than in accordance with a strata development contract.
A smart lawyer might argue that since the gate was installed when the block was new, it can be assumed it was part of the strata development contract – unless they can provide proof to the contrary.
And talking of smart lawyers, our sponsors Sachs Gerace Lawyers have this case study on their website. It’s not exactly the same but it’s worth a read. In it, an owners corporation tried to force an owner to reinstate common property because they said the lot owner didn’t have proper permissions for work (installation of skylights).
The lot owner sought a retrospective by-law and the owners corp refused. The owner challenged this at NCAT and lost initially but won on Appeal (thereby creating a precedent for future NCAT cases of this nature).
The point I would make is this, if you were prepared to agree to a retrospective by-law, taking responsibility for the maintenance of the gate, then they can hardly refuse and expect that refusal to be upheld at NCAT.
If you want the owners corporation to accept responsibilty for the maintenance of the gate, then you have a longer and tougher fight, but you would have grounds (although no guarantees).
But they should know that any attempt to force you to remove the gate is on very shaky grounds and could cost the owners (but not you) a lot of money if they are determined to pursue it.
FYI, the general meeting of the owners corp can order the committee and the strata manager to drop the case, if the item is on the agenda.