#18304
Whale
Flatchatter

    I was typing this at the same time as Kiwipaul posted his reply and got side-tracked by a phone call, so hopefully there’ll be no overlaps, but in any case, there’s no need for an apology Jan.

    My original advice about the ability of the Interim Order (in NSW) to be amended stands, but the ease with which that is done will depend upon the willingness of the parties to do that through the compulsory mediation process.

    The Owners Corporation (O/C) consenting to you enclosing a Common Area balcony is not so much about your exclusive use of that area because you probably had that anyway, but is more-so about you adding to the Common Property by enclosing that area.

    Your Lawyer’s right, in that provided the O/C’s consent to your proposed works was granted at a General Meeting of Owners where ≥75% of those present both personally and by proxy voted in favour, where that percentage is calculated from the unit entitlements of those in favour / the aggregate entitlements for the Plan, then that consent is valid; it’s called a Special Resolution.

    No doubt that is why Council accepted the written Minutes of the General Meeting as sufficient evidence of the O/C’s consent to your proposal prior to its approval of your DA.

    There is however a proverbial “fly in the ointment”, because in order for the O/C to require you and any subsequent Owners of your Lot to be responsible for the on-going maintenance and repairs to the area of Common Property that you’ve enclosed, and at its option to require an initial and/or ongoing payment to account for the “value” of your exclusive use and of the increase to the living area of your Lot, then it needs a Special By-Law in order to do that, and that’s the customary approach.

    That’s probably what your Strata Manager is referring to, but that’s no reason in my opinion for the Interim Order to be “tossed out” entirely as opposed to it being amended as I suggested.

    I’d simply get on with the mediation process, complete the works on the balcony in strict accordance with your Owners Corporation’s written consent and Council’s approval, and after everything’s wrapped up ask your Executive Committee Secretary to place an item on the Agenda for the next General Meeting for Owners to “Specially Resolve” to create and Register a Special By-Law to again formalise your exclusive use, and to include a clause about the responsibility for the on-going maintenance and repairs of your works which add to the Common Property (which should be yours), and at their discretion any payment to the O/C as I’ve outlined.  

    Again in my opinion, that Special By-Law is in your best interests in the long term, especially as it cannot be revoked by the O/C at any future time without the prior written consent of you or whoever then owns your Lot, and that’s got to be worth the costs to you in having it properly drafted and Registered with NSW Land & Property Information (incorporating the former land Titles Office).