@dan3101 said:
I am on an EC in Sydney. With the above scenario what happens if they get a clear majority but not 75% at the EGM, does the EC then meet and decide whether to issue a notice to comply which favours a minority of the OC.
The EC can meet and decide to do whatever it wants but they would be foolish to do so if there is a clear majority at the General Meeting that opposes them. In fact, a petition of 25 percent of owners can hve an item removed from the EC agenda before it is even considered. If you were really concerned about this, you would add an item to the general meeting agenda ordering the EC not to pursue this matter.
If the EC itself also votes as the majority of the OC and decides that the change is OK do they have to ignore their own vote and the wishes of the majority and still issue a notice to comply?
This is a bit confusing. If the EC is effectively the majority on the OC, why would they vote agaoinst themselves? In any case, the Executive Committee doesn’t have to issue a Notice To Comply on anything – unless they are compelled to do so by an order from NCAT or by a vote from a General Meeting specifically ordering them to do so. Even then, they can do as they please and wait until they have to face the music at the next AGM or are dragged before NCAT by an unhappy owner.
If the EC decide to follow their own vote and the wishes of the majority and not issue a notice to comply does the change to common property, in this case a door , just remain in limbo?
Yes. However, any owner can take an action at NCAT requesting that the Owners Corp be ordered to pass a by-law that it should have done as part of its duties.
Is this scenario dealt with in the act? If so could you please refer me to the relevant part?
This is a complex situation covered by many aspects of the Act including clauses on special resolution by-laws, changes to common property and orders that can be made by NCAT. There is nothing specific that deals with this particular scenario and there are other aspects that are implied, such as who has reponsibility for changes to common property when no by-law has been passed.
I’ve attached a few relevant clauses for you to look at but you have to try to understand their intent. For instance, Section 54 seems to be saying that the Owners Corp is responsible for maintenance of common property affected by a by-law but in fact, it is saying that if the by-law doesn’t apportion responsibility to the benefitting owner, then the Owner’s Corp has responsibility by default. In other words, it’s saying pass the responsibility or accept the consequences.
A final word of caution: If you are seriously in need of this level of legal knowledge, you should be talking to an experienced strata lawyer.
Here are some relevant clauses from the Act
Division 4 Special provisions for by-laws conferring certain rights or privileges
(1) This Division applies to a by-law conferring on the owner of a lot specified in the by-law, or the owners of several lots so specified:
(a) a right of exclusive use and enjoyment of the whole or any specified part of the common property, or
(b) special privileges in respect of the whole or any specified part of the common property (including, for example, a licence to use the whole or any specified part of the common property in a particular manner or for particular purposes),
and to a by-law that amends or repeals such a by-law.
(2) This Division does not prevent an owners corporation making a by-law in accordance with section 54 of the Community Land Management Act 1989.
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
(2) Any money payable under a by-law to which this Division applies by more than one owner to the owners corporation or to any person for or towards the maintenance or upkeep of any common property is payable by those owners proportionately according to the relative proportions of their respective unit entitlements unless the by-law otherwise provides.
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
(5) A by-law made for the purposes of this section:
(a) may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.
(6) The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies.
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note. Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
Part 4 Orders of Adjudicator
Division 1 General power of Adjudicator to make orders
138 General power of Adjudicator to make orders to settle disputes or rectify complaints
(1) An Adjudicator may make an order to settle a dispute or complaint about:
(a) an exercise of, or a failure to exercise, a function conferred or imposed by or under this Act or the by-laws in relation to a strata scheme, or
(b) the operation, administration or management of a strata scheme under this Act.
(2) For the purposes of subsection (1), an owners corporation or building management committee is taken to have failed to exercise a function if:
(a) it decides not to exercise the function, or
(b) application is made to it to exercise the function and it fails for 2 months after the making of the application to exercise the function in accordance with the application or to inform the applicant that it has decided not to exercise the function in accordance with the application.
(3) An Adjudicator may not make an order under subsection (1) for the settlement of a dispute or complaint:
(a) dealt with in another section of this Chapter, or
(b) referred to the Tribunal or only within the jurisdiction of the Tribunal, or
(c) relating to the exercise, or the failure to exercise, a function conferred on an owners corporation by this Act or the by-laws if that function may be exercised only in accordance with a unanimous resolution or a special resolution (other than a special resolution under section 62 (3), 65A or 65B), or
(d) that includes the payment by a person to another person of damages.
(4) If a dispute or complaint arises from or relates to the operation or application of a provision of a lease of a lot, or of the common property, in a leasehold strata scheme, the lessor of the strata scheme must not:
(a) commence other proceedings in connection with the settlement of the dispute or complaint after having made an application under this section for the settlement of the dispute or complaint, or
(b) make an application under this section for the settlement of the dispute or complaint after having commenced other proceedings in connection with the settlement of the dispute or complaint.
(5) An application for an order under this section may be made only by an interested person.
Division 2 Orders relating to property
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, of a by-law if the Adjudicator finds:
(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(2) In considering whether to make an order under this section, an Adjudicator must have regard to:
(a) the interests of all owners in the use and enjoyment of their lots and common property, and
(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.
(3) An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).