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  • #66749
    esb
    Flatchatter

      We have a bizzare common property dispute in my building.

      The building is a little strange as the top floor has a semi-open ceiling in the corridor/foyer covering the area between the lift and the entrance to the two units on the floor. This open area is protected from direct rain entering the common area by a shade sail which is anchored from the roof and external building frame. It does not provide any direct benefit for the 2 units on this floor and is clearly part of the common property.

      Recent high winds caused the sail to be brought down and it has been inspected and is in need of replacement due to age.

      The Chairperson of the EC has declared that it was not part of the original building and that it was installed by an owner. Therefore, the OC is not responsible for the maintenance of this sail. This has been put forward without any evidence or documentation, and nothing can be found in the strata records or by-laws from 20 years ago.

      The strata manager seems to side with the idea that if anything is installed at a later date, then the OC has no responsibility, which I feel is a misunderstanding of how Strata law works.

      It’s possible that the original developer installed the sail to address a failing in the original building design. In heavy rain, this area can flood and this could lead to flooding of the lift shaft and adjoining properties, so the sail is actually of benefit to the building.

      If the sail was installed and paid for by someone (unknown) other than the OC, and this was not documentated anywhere, can the EC committee claim that they have no responsibility for the maintenance? If they don’t have responsibility, then who does. The original developer and original owners of the 2 units on the floor have long since gone.

      What’s the way forward on this?

    Viewing 7 replies - 1 through 7 (of 7 total)
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    • #66756
      chesswood
      Flatchatter

        Are you in NSW? When was your building constructed? When was the strata plan registered?

        #66763
        esb
        Flatchatter
        Chat-starter

          This is a NSW Strata Plan. The building was constructed and registered around 20 years ago.

          I suspect the shade sail would fall under the category of fixtures and fittings as far as Common Property goes.

          #66766
          Jimmy-T
          Keymaster

            If they don’t have responsibility, then who does.

            This is the key question and it’s why Section 108 (4) says this:

            (4) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has responsibility for the ongoing maintenance.

            The provenance of the sail cloth may be in doubt but the floor and lift shafts are definitely common property.

            I may be wrong but I think someone needs to tell the committee that this is strata responsibility and if they try to shirk it then they will probably lose and end up having to replace the covering as well as owners having to pay any legal fees incurred in disputing it.

            I also wonder about the safety and efficacy of a sail shade in these days of extreme weather.  Perhaps a motion to erect a permanent cover (maybe with solar panels) might focus strata committee minds on the real issues here.

            The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
            • This reply was modified 1 year, 2 months ago by .
            #66777
            TrulEConcerned
            Flatchatter

              Hi ESB,

              In addition to the suggestion by Jimmy-T, you could go to your local council and ask to speak to someone about the history of the strata plan.

              I know, in the case of the City of Sydney Council, folk often call or pony up to the customer service desk asking such queries. The council staff will unearth the original strata plan and can explain to you, whilst holding a copy of the original strata plan, what is common and what is not common property.

              The council should also have copies of any by law stipulating the ownership/responsibility/maintenance of the “covering” OR any by law changing the ownership/responsibility/maintenance of the “covering”.

              #66784
              Jimmy-T
              Keymaster

                Perhaps a motion to erect a permanent cover (maybe with solar panels) might focus strata committee minds on the real issues here.

                I mentioned solar panels partly because that would mean you only required a simple majority not a special resolution for approval at a general meeting, as it would come under “sustainability” provisions (and partly pay for itself).

                The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
                #66792
                esb
                Flatchatter
                Chat-starter

                  In addition to the suggestion by Jimmy-T, you could go to your local council and ask to speak to someone about the history of the strata plan.

                  I’m not sure it matters. If the sail is a fitting or fixture, would it necessarily be on the original development application? There’s also a possibility that it was installed at a later date by the developer, as they took a long time to sell the units on the top floor (18 months).

                  In any case, if there’s no by-law in place to pass the responsibility of the maintenance to an individual lot owner, then it must, by default, remain the responsibility of the OC.

                  #66905
                  TrulEConcerned
                  Flatchatter

                    Hi esb,

                    As Jimmy often writes….those posing queries should seek legal advice from experts in strata law because opinions offered in this forum are just views of members who are not legally qualified.

                    I can add nothing more to what I wrote and suggest you heed Jimmy’s comments on telling the strata of its obligations. You could  also look up cases at NCAT, VCAT etc which focused on similar common property disputes.

                     

                     

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