Reply To: EC will not budget for a tired courtyard garden

I’ll back what Sir Humphrey says, but I’d also be ready to be a tad more aggressive.

First of all I would get a local real estate agent to guesstimate the difference the view of a neglected garden would make to rents and purchase prices, compared to a view of a well-tended patch.

Then I would ask for a meeting with the chair or secretary to explain the steps you intend to take to get it fixed.

First, the simplest and least painful option for all concerned, they could support a motion to spend money on improving the neglected garden, then budget to spend just as much on its upkeep as they do on the front garden.  The fact that no one wants to raise levies is irrelevant – the owners corp has statutory duties that it must fulfil.

Failing that, you will seek the support of other owners, especially those who share your aspect, in getting the committee to change its mind. You will explain to these owners how the neglect of the garden is affecting the value of their properties and to the other owners how doing nothing could cost them more than taking action.

Then submit a motion to the committee with a rider to the effect that failure to act could cost the strata scheme more, in real and immediate financial terms,  than doing what is required. At least then you will have it on the record.

If the committee dig their heels in, tell them you intend to commence proceedings through Fair Trading and NCAT to enforce Section 106 (below), explaining that it will cost more to defend the action that it would to fix up the garden

If they’re still not listening you might suggest that failure to fix the common property could also, theoretically, result in claims for damages (loss of value or rent) by all the affected owners under Section 106 (5).

And you can point out that section 106 (3)(b) makes it clear that even a decision by special resolution not to fix the garden would be invalid since it would “detract from the appearance of any property in the strata scheme.”

First get some support from other owners, then talk to the office-bearers and, as Sir Humphrey suggests, offer to make it as easy for them as possible (such as volunteering to help with the work if they provide tools, plants and materials).

But if they are not listening or delaying, explain how you have strata law on your side and any efforts to obfuscate or defer will cost them and other owners (but not you) dearly.

106 Duty of owners corporation to maintain and repair property

(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as  damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other law

• This reply was modified 1 year, 9 months ago by .