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Hello
We own a unit on the top floor of a block of 6 and would like to extend into the roof space. What approvals do we need and what would be the process?
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You need two lots of permissions:
First you will need the permission of the owners corp (because it’s their property) and you will also need the permission of the local council (who will want to see the OC permission).
You will have to get a by-law passed which should pass responsibility for all affected common property to you.
You will have to pay something to the OC. At the VERY LEAST it will be the difference in the value of your property with and without the extension, minus the cost of the work.
You should probably pay more than that to make it worth your neighbours while. They are under no obligation to allow you to do this.
You should cover all legal costs, costs of the by-law etc etc.
You should also offer to apply to NCAT to adjust the Unit Entitlements so that you are paying more and your neighbours are paying a bit less.
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.
Depending on the age of the building and current fire protection measures, Council could include a Fire Upgrade Order to the whole of the building as part of the DA approval conditions for your extension. How that would be paid for, if it occured, needs to be considered in the planning.
fictionarchitec – You would need approval for the acquisition of the common property roof space via a common property rights by-law.
From the Office of Fair Trade site is the following advice: “A common property rights by-law (previously exclusive use by-laws) may be created in instances where a lot owner may request personal use of common property for renovations or the sole use and enjoyment of the whole or any specified part of common property.
An owners corporation can only make a common property rights by-law if it has the written consent of each owner on whom the by-law provides the right or special privilege and has been passed by a special resolution of the owners corporation.
The common property by-law must state whether:
- the owners corporation is to continue to be responsible for the proper maintenance of the property or,
- impose on the owner or owners of the lots the responsibility for that maintenance and upkeep.
Any common property rights by-law must be disclosed to purchasers by vendors and a copy of the exclusive use by-law must be attached to the contract of sale.”
Be very careful with the wording of your by-law. Will your by-law specify that you will be responsible for the roof itself?
The by-laws granting exclusive use to a roof space can include appropriate conditions about the lot owner/s obligation to pay compensation to the owners corporation for the grant of the rights.
See this link for more details about compensation for the use of attic space:
You could also look at the posts here which contain the formula for calculating the minimum compensation you should pay the owners corp.
Just to be clear, this phrase in Lady P’s post above “written consent of each owner on whom the by-law provides the right or special privilege” means you. You have to consent in writing to the terms of the property rights by-law.
Just to summarise:
You will need a property rights by-law which will require the approval of at least 75 per cent of votes cast at a general meeting (that’s 75 percent of votes, not 75 percent of owners).
The property rights by-law should say that you agree to take over maintenance of any affected common property
You should be offering some sort of compensation and to agree to an upwards adjustment of your unit entitlements
You should also be offering to pay the OC’s costs
You will need council planning approval
You should also include a schedule of works that says when the work will be done (times of day, estimated duration of project etc) and include measures for removal of rubble and protection to common property during work.
Don’t forget that the other owners are under no obligation to agree to this. However, if you do the right thing and bend over backwards to make it all worth their while, you could force their hand at a tribunal if they say no.
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.
If you were to get an exclusive use by-law passed down the track could that be rescinded by a 75% majority at another AGM resulting in the loss of exclusive use of common property?
Wouldn’t a more permanent & more costly solution be once the 75% majority have agreed to the exclusive use of common property & the council are happy. i.e. all the ducks are lined up… to have the lot + common property extension surveyed, the unit entitlement increased with an corresponding increase in levies & the registered strata plan amended as per the survey? Or is this an impossible avenue?
Not an expert, just curious as to the means of amalgamation of common property into lots.
@tharra said:
If you were to get an exclusive use by-law passed down the track could that be rescinded by a 75% majority at another AGM resulting in the loss of exclusive use of common property?Special resolution by-laws of this kind can only be rescinded or changed with the written permission of the lot owner who benefits from it.
Wouldn’t a more permanent & more costly solution be once the 75% majority have agreed to the exclusive use of common property & the council are happy. i.e. all the ducks are lined up… to have the lot + common property extension surveyed, the unit entitlement increased with an corresponding increase in levies & the registered strata plan amended as per the survey? Or is this an impossible avenue?
By “costly” do you mean cost-efficient (which is the opposite)? In any case, that would be much more expensive and time consuming. The property rights by-law is a tried and tested routs for this kind of thing.
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.
Ahh – “written permission of the lot owner who benefits” was the magic pudding ingredient I was missing. Thanks!
& I meant “more costly” as hideously expensive. 😉
Jaus make sure that you have done everything by the bookand that the building is fully compensated for the loss of common property and that you have taken responsibility for the repair and maintenance of any common property affected by your extension.
In other words, don’t give the dissenter any grounds for making your life more difficult than it needs to be.
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 type of vote can be decided on the number of votes on a show of hands, but any owner present can demand a poll, in which case the vote is determined on unit entitlement.
For example – if there were one or more dissenting owners, and based on calculations a motion would not be carried if it was determined on unit entitlements, then the owner/s would be likely to demand a poll.
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