pend1lis – by way of a summary of everything that’s been said so far, you have a problem, and that’s an understatement!
I’ve drawn that somewhat simplistic observation on the basis of your advice that:
- The Special By-Law (SBL) that has been Registered grants exclusive use, and a SBL of that type cannot be easily amended or revoked without the prior written consent of those two (2) Owners as its beneficiaries. I say “easily” because in the absence of those Owners’ prior consent, the only other option is for you or the Owners Corporation (O/C) to seek Orders to do that under the provisions of Sect 158(b) of the NSW Strata Schemes Management Act (SCMA), and….
- The SBL that hasn’t been Registered is invalid/ illegal/unenforceable, but as soon as you or the O/C takes any action to amend or revoke it, you can bet that it will be quickly lodged with NSW Land & Property Information for Registration, and……
- The fact that the wording of neither SBL is in the terms put to and Specially Resolved at the General Meeting, and…..
- The fact that even with the Owners’ prior consent, in order to amended or revoke those SBLs the O/C will still have to convene a General Meeting, where the Agenda will need to include the proposed new or amended SBLs, and a vote by ≥75% of those in attendance, including proxies, will be required to pass a Special Resolution that brings into being those new or amended documents, where that percentage is determined from the lot units of entitlement (UOE) of those voting and the aggregate UOE of all those in attendance; again including any proxies.
I assume that you’re not the only Owner who can now see the problems with all of the above, so in that case I’d firstly suggest that you do some lobbying if only to ensure that like-minded Owners are on-side, and that’s particularly so for the Secretary who, unless you have >25% of Owners by UOE on-side to petition for a General Meeting, will themselves have to convene that Meeting in order to revoke the existing SBLs, and to obtain an agreement by a simple majority vote to obtain some independent legal advice on the drafting of new SBLs from someone who’s strata-savvy.
When all that’s done, there will need to yet another General Meeting to vote on the new SBLs, unless of course there’s an allocated budget for legal advice and the Executive Committee is prepared to obtain that in advance of the first General Meeting so that everything can be wrapped up at that time.
As I said at the outset, you have a problem, but in my opinion your O/C cannot leave it unresolved as apart from the fact that what’s Registered and presumably what’s ready for Registration is “drastically different” from what was resolved at the past General Meeting, the issue with charging for access to the lifts is just the tip of the iceberg in terms of what’s yet to come!
Your O/C needs some strata-savvy legal advice with all this, so do a bit of searching on the ‘net and perhaps also contact one of FlatChat’s sponsors HERE.