- This topic has 21 replies, 7 voices, and was last updated 5 months, 1 week ago by .
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Topic
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(NB: this is NSW)
Hello strata gurus…
We’ve had an issue recently regarding a shared space in our small block of 12 units. It’s a small paved area of around 8m sq. adjacent to the parking lot and the clothes line that was described to me when I moved in as a shared recreational space. The area is also has a couple of garden beds that have been allocated, by agreement, to individual owners, even though they are technically common property.
Last year one of these owners removed some paving bricks and sank a plastic tub into the ground with a tree planted in it, despite having plenty of room in his designated garden bed. He also added several other potted plants outside the area of his garden bed. A few weeks ago he sank a second tub and tree into the paving. Understandably we were all pretty pissed off about this. The committee assured me they were trying to find a solution that maintained “neighbourly harmony”.
In the same area, I had placed a garden bench with built in containment for supplies such as soil and mulch. As there was no other seating in the recreational space I made it clear that anybody could use the seat. We also put our BBQ in the space, against the fence and next to another BBQ, with the permission of the strata committee. Note that my unit is on the ground floor and has no external space on the title. There is a narrow garden alongside our exterior wall and another small section just outside the loungeroom window. I expressly asked for and was granted permission to use this space for my own modest attempts at gardening.
In February he strata manger sent a letter that demanding that nothing be “stored”, “abandoned” or “dumped” in common property, and threatening to forcably remove things in the space. The letter did not specify which items had to be removed and did not specifically mention the trees or tubs.
I was not happy but I moved my garden bench to the small area behind my car parking space.
Yesterday I received a missive from our strata manger demanding I remove our “abandoned” BBQ. This letter demanded we remove the “abandoned” BBQ within 48hrs or have it removed, and be billed for the removal.
Our large, 4 burner BBQ has been in its position for the last 8 years, with the knowledge and permission of the OC. We have NO exterior space to relocate it to. When I asked the “chair” of the committee (who has been unelected in this position for as long as I have been here) what I was supposed to do he (metaporically) shrugged his shoulders… he has failed to engage my partner or I in any conversation about this.
My partner has now initiated the Fair Trading mediation process and I have just received an email from the strata manager stating that the area is not a recreational area because it isnot on the plan.
OK… sorry for the long background… here’s my question. What rights do I have to stop this madness????
I understand that she may have the right to do this under the letter of the law, but for over 8 years our small block had specific understandings regarding the use of certain areas that were communicated verbally – despite my attempts to proffessionalise the committee procedures.
One owners selfishness, and our strata managers seeming obstinance and all or nothing approach, has now spoilt this for everybody. Do I have any recourse at all??? Would a “fair and reasonable” argument work at NCAT?
many thanks
DAni
- This topic was modified 8 months, 2 weeks ago by .
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Replies
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Who owns the common property and can decide how it should be used? You and the other 11 owners or the strata manager?
What motivated the strata manager to issue the edict? Were they simply repeating an owner’s complaint or acting on their own initiative?
I would suggest that with only this small area of common property available for a BBQ, seating and some garden beds, the best solution would be to talk to you neighbours about formalising how you would like to use the area. You could collectively draw up a simple diagram showing garden beds, some paved area, some seating (with storage under), a space for a BBQ (noting that there is currently one on loan from unit X) and whatever else people would like. Perhaps a picnic table next to the BBQ rather than a storage seat? When there is a consensus or at least a substantial majority in favour, put a resolution to a general meeting to say that diagram shows how the owners corporation wants to use the space. That should put the manager (or one grumpy owner) back in their box.
Hello slicendice
I think you need a common property rights by-law. To find out more about that, read Strata Schemes Management Act 2015, Part 7, Division 3, Sections 142-145. You need 75% of the owners present at a meeting to add a new by-law. If this dispute goes beyond mediation and into NCAT, NCAT will want to know if a common property rights by-law exists.
A common property rights by-law would explain who is responsible for maintaining any patch of common property. It would be clearer to everyone if you have a separate by-law for each patch of common property maintained by a different owner. If you only pass a resolution at a meeting without updating your by-laws, you’re not really covered against more complaints.
I am in the ACT so can’t advice on the peculiarities of NSW law but it seems really odd to me that the OC can’t simply resolve to use common property as it wants to. The BBQ isn’t for your exclusive use; it’s for the whole OC and you just happen to be lending yours to the OC to use where it would like to have a BBQ.
I still don’t see why the strata manager is bothering to create work for themselves. If the owners are happy, why worry beyond advising that they might want to formalise things.
Also, there are only 12 of you. Why do you need to pay the strata manager to have a meeting? A meeting can be called and held without them. You could do it in one of your units or with camping chairs in the carpark. Just comply with whatever notice requirement are set out in the NSW Act. The secretary can produce minutes. The chair can chair etc.
I agree with Sir Humphrey. I wondered why this strata manager wants to make herself busy with this too.
Strata Schemes Management Act 2015 is your friend (again). Refer to “Schedule 1 Meeting procedures of owners corporations”.
You can definitely organise your own meeting amongst yourselves. The procedure is explained in the above legislation.
You could formalise it by passing a resolution at a general meeting. This should not cost a cent if you do it yourself. Once it is recorded in the minutes, you have something to show the strata manager, other owners, NCAT member.
However, the NCAT member would be more impressed by a common property by-law (which costs money).
Whether you have a leg to stand on? My owners corp was taken to NCAT by an owner. She wanted one of her neighbours to remove their dog. The NCAT member asked how long the dog had been living there. Answer: 10 years. NCAT member: “I am not about to remove a dog that has been living there for ten years.”
NCAT members each have their own temperament. Hopefully, if it comes to a tribunal hearing, you get a member who has common sense.
Just to clarify a few things for you: If you have owners who have 25% or more of the total unit entitlements, you can make a ‘qualified request’ to the secretary of the owners corporation to convene a general meeting. They must do this as soon as practicable, and in not more than 14 days. This is all in s19 of the Act.
You do not need the strata manager to convene the meeting. Although they likely have ‘delegated authority’ to act as secretary, the actual secretary can still convene the meeting. There has to be 14 days notice to owners.
For a meeting to be valid, it needs a quorum of at least 25% of the owners or of the total entitlements.
The ‘perfect’ solution might be a fully-fledged common property rights by-law. But you don’t need that. Per s112 of the Act, an owners corporation may grant a licence to use common property. It needs a special resolution, which means that not more than 25% of the votes cast are against the resolution, per s5 of the Act.
Note these percentages: you need 25% (in your case, 3 owners assuming all are roughly equal in unit entitlements) to require the meeting. You need at least 3 to attend the meeting. However many attend, if no more than 1 in 4 oppose the motion, it will pass. You don’t need 75% agreement.
So draft a motion along these lines: ‘That the owners corporation specially resolve to grant a licence to all owners to use the common property marked on the attached plan for X and Y, further, that the owners of lots A, B and C may use the marked portions as a garden or barbecue area…’. You get the idea.
Check all the meeting rules in Schedule 1 of the Act. It’s fussy, but quite intelligible.
Good luck!
Unless you already have them, download your strata plan and registered by-laws from the LPI website (fees are payable). A careful study of them might save you going wrong somewhere.
Also, where you say the OC knew of and gave permission for your barbecue, note that the OC is not quite the same thing as a roomful of 12 owners and nor is it the committee. Your dab-handed partner should keep that in mind when reading.
Hi all,
Today I received a rejection of my official request to keep the BBQ in place from the committee…
A decision of the owners passed as a resolution of a general meeting trumps the committee (or the strata manager). I would get the numbers to pass a resolution directing the committee to arrange whatever is needed to formalise the use of the space as a BBQ area. That might mean that the committee is sent away to draft a by-law to be adopted at a future general meeting. It might mean accepting your kind offer to lend your BBQ to the OC. The point is that you demonstrate that this is what a substantial majority of the owners want. You don’t necessarily have to have everything in place, by-laws etc. – just show you have the numbers and remind the Poo-Bah that he actually has very little power. Remember, a resolution of a general meeting directing the committee to do something trumps the decisions of the committee.
- This reply was modified 8 months, 1 week ago by .
It doesn’t make much difference here but was your plan registered before 1975?
Have AGMs been held annually and minutes circulated and posted on the noticeboard? Apparently there are no committee minutes. Without committee minutes, how do you know who the secretary is? Ditto the chairperson.
Have accounts been circulated annually? Are there separate admin and capex accounts? What is the manager costing you?
Had you thought of including a motion to terminate the manager? Get a quote from a large firm but perhaps not one that’s been in the news lately.
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