By-Law Breach in Construction

I am presuming you went through the usual processes of the owner getting permission and a special by-law applying to the works which makes the owner responsible for those works.  Given the extent of the works the details of the works would have to have been reasonably detailed to ensure there was clarity regarding responsibility, so that the other owners were protected.

The permission given and by-law would have referred to two bedrooms.  To the extent that it is three bedrooms, the permission given and by-law are void, i.e. if you ask for permission and put up a by-law for something on the basis of it being two bedroom and it is three bedroom then the basis for giving the permission and approving the by-law is negated to that extent.  

Avenues available to the OC include seeking an order which could require the owner to comply with the permission granted, i.e. to have two bedrooms.  Or you could require him to go through the whole process again. (or put it back the way it was)

Jimmy mentioned the Council – did the owner get a DA, the application for a DA would have to have been stamped by the OC, and the owners would have to have approved that in a general meeting.  The DA would include detailed specifications of the works.  If they didn’t get Council approval then that is very serious and I would contact the Council immediately.

I am curious re the owner building a whole new lot in a basement.  There are strict building code requirements for habitable spaces – it may be that the area meets those requirements which includes height of ceiling and windows, but thought I should raise that.  A Council will not give approval for habitable areas where the Building Code requirements can’t be met.

Finally – if the owner built a whole new unit in the basement, did you reallocate the unit entitlements in the strata scheme to reflect the new use of that area?

Goubtless – A couple of points worth considering are: The mere fact that a bed is placed in a room does not automatically reclassify it as a bedroom. However, the advertising should not state that a 2 bedroom unit is a 3 bedroom unit – this is misrepresentation. 

The new SSMA 2015 has suggested that a by-law may be created by an OC to place occupancy limits on the number of adults residing in units. A suggestion is that a 2 bedroom unit has an occupancy limit of 4 adult persons. The number of children is not mandated. Do your by-laws contain an ‘occupancy’ provision?

NB: Where the 4 adult people chose to sleep within the unit, providing that the room is a habitable room, is up to the occupants themselves. 

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 137

Occupancy limits

137 OCCUPANCY LIMITS

(1) A by-law may limit the number of adults who may reside in a lot by reference to the number of bedrooms of the residence.

(2) The limit may not be fewer than 2 adults per bedroom.

(3) The by-law has no effect:

(a) to the extent to which it is inconsistent with any planning approval or other law applicable to the lot, or

(b) in any other circumstances prescribed by the regulations for the purposes of this section.

(4) To avoid doubt, the Tribunal may make an order under Division 5 about a by-law made under this section.

(5) The regulations may provide for the circumstances when a person is a resident of a lot for the purposes of a by-law made under this section.

(6) For the purposes of this section, a 
“bedroom” is a room approved for use as a bedroom under, or indicated as a bedroom in any plans the subject of, a planning approval and includes any other room prescribed by the regulations as a bedroom for the purposes of this section.

If you believe that the current unit entitlements at your scheme are unreasonable then you may seek an Order under SSMA 2105 [s236(1)(c)] and with it you must supply the necessary information that is required under this section.

Order for reallocation of unit entitlements

236 ORDER FOR REALLOCATION OF UNIT ENTITLEMENTS

(1) Tribunal may make order allocating unit entitlements The Tribunal may, on application, make an order allocating unit entitlements among the lots that are subject to a strata scheme in the manner specified in the order if the Tribunal considers that the allocation of unit entitlements among the lots:

(a) was unreasonable when the strata plan was registered or when a strata plan of subdivision was registered, or

(b) was unreasonable when a revised schedule of unit entitlement was lodged at the conclusion of a development scheme, or

(c) became unreasonable because of a change in the permitted land use, being a change (for example, because of a rezoning) in the ways in which the whole or any part of the parcel could lawfully be used, whether with or without planning approval.

(2) Matters to be taken into consideration In making a determination under this section, the Tribunalis to have regard to the respective values of the lots and to such other matters as the Tribunalconsiders relevant.

(3) Persons who may apply for order An application for an order under this section may be made by any of the following:

(a) an owner of a lot (whether or not a development lot) within the parcel for the strata scheme,

(b) the owners corporation,

(c) the lessor, in the case of a leasehold strata scheme,

(d) the local council, or by any other public authority or statutory body representing the Crown, being an authority or body that is empowered to impose a rate, tax or other charge by reference to a valuation of land.

(4) Application to be accompanied by valuation An application for an order must be accompanied by a certificate specifying the valuation, at the relevant time of registration or immediately after thechange in the permitted land use, of each of the lots to which the application relates.

(5) Qualifications of person making valuation The certificate must have been given by a a person who is a qualified valuer within the meaning of the Strata Schemes Development Act 2015 .

(6) Ancillary orders that may be made if original valuation unsatisfactory The Tribunal may, if it makes an order allocating unit entitlements that were not allocated in accordance with a valuation of a qualified valuer and, in the opinion of the Tribunal, were allocated unreasonably by an original owner, also order:

(a) the payment by the original owner to the applicant for the order of the costs incurred by the applicant, including fees and expenses reasonably incurred in obtaining the valuation and the giving of evidence by a qualified valuer, and

(b) the payment by the original owner to any or all of the following people of the amounts (if any) assessed by the Tribunal to represent any overpayments (due to the unreasonable allocation) for which liability arose not earlier than 6 years before the date of the order:

(i) the lessor, in the case of a leasehold strata scheme,

(ii) the owners corporation,

(iii) the owners of lots.

(7) Lodgment of order The owners corporation must ensure that a copy of an order made by the Tribunal under this section is lodged in the Registrar-General’s office no more than 6 months after the order is made. Nothing in this section prevents a person who is entitled to apply for an order under this section from lodging a copy of an order made under this section.

Note : Section 246 contains provisions with respect to the recording of an order made under this section.