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JimmyT said:
bpositive said:
Due to the peculair shape of our block a large portion of common property is at the rear of the building. This area is full of weeds, dead leaves and not maintained in years. A vast majority of the unit holders live in the front so they are not bothered. If it goes to vote the majority will rule that we dont want to spend money on the rear. Can anything be done about this?
Jimmy said; It's interesting that the section of the Act that deals with the OC's obligation to maintain common property specifically refers to appearance. As Daniel Dimock of Teys points out, their obligation is established, and they can either do this the easy way – just do it – or force you to drag them through the CTTT and then have to do it anyway.
By the way, you should have some sort of cunning plan up your sleeve to beautify the area or somebody will suggest concreting it.
In s62 the reference to appearance relates to a decision not to maintain:
(3) This clause 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.
In bpositives case there is no mention that the OC has determined by SR it will not maintain the section of commons so the question of appearance is not an issue.
The issue is still; s62(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property ….
From Seiwa: The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists
[Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis,
[162]-[163]] ………. It follows that as soon as something in the
common property is no longer operating effectively or at all, or has fallen
into disrepair, there has been a breach of the s 62 duty [cf Ridis
[177]].
Do some weeds and some dead leaves really mean the area is no longer able to serve its purpose, no longer operating effectively or at all, or has fallen into disrepair?
I keep my 8000+sq m lot like a park yet in the last 3 months I have had to deal with a brown snake, a black snake and dispatch a death adder…. oh how i wish all I had to deal with were a few weeds and some dead leaves.
Our whole SP is devalued by the manner in which the OC does not comply with the Act or manage the common property. CTTT has done nothing.
My suggestion to bpositive is to take the initiative if you want the area to be something more than what the rest of the OC want it to be. It would be the only way to guarantee you get the area to be something other than weeds and dead leaves.
Rack the leaves and pull the weeds. Take a plan to the OC that costs them nothing and which involves them doing nothing. Every OC is full of people like those people in my OC; people who want everything for nothing.
I personally maintain over 1000sq m of common property because if i do not then it turns into walls of 2m high grass or lantana. I also maintain over 110m of fence line so the bush does not consume the fence and invade my lot. CTTT will not make the OC do it.
If by some chance CTTT made some order to turn “weed city” into “paradise gardens” then you may find all those people who do not care about the area resent you for making them pay for something they did not want in the first place.
good luck with it.