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A strata I am involved in recently approved motions at an AGM to create By Laws passing responsibility for maintemance / repairs etc to fly screens, locks and other items that are defined as Common Property but are intrinsic to individual lots.
Our lawyers are refusing to register them as they claim that they would need a unanimous vote in order to be registered.
Two other stratas which I am involved in have recently had similar By-Laws registered with a 75% majority vote.
What’s the reality? – and how do we get the By-Laws registered ourselves?
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Johnny – on the assumption that the Plan you’re referring to is in NSW, then your Strata Lawyer’s advice is incorrect as the assignment of responsibility for the maintenance, repair, and replacement of defined items of common property may be transferred from an Owners Corporation (O/C) to individual Lot Owners under the provisions of Sect 62(3) of the NSW Strata Schemes Management Act (1996), where a special and not a unanimous resolution is required.
Further, a Special By-Law is not necessary for a special resolution in the above terms to be effective unless the O/C wishes to ensure that Lot Owners do actually maintain the referenced items and don’t instead leave them in a state of disrepair simply because they have to pay.
So if your O/C wishes to mandate proper maintenance by Lot Owners then once properly resolved, an enabling Special By-Law may be personally lodged (as and “addition”) by the Secretary, or by an Owner authorised in writing by that person, with the “Lodgements Officer” of NSW Land & Property Information (L&PI) using THIS form, accompanied by the original of the Plan’s Strata Title Certificate, and the payment of $109.50.
As mentioned, no access to a Lawyer’s DX service meant that a change/addition of by-laws Form had to be lodged in person at the L&PI’s Queens Square H/Q for any Strata Plan located within Greater Sydney, but maybe check whether that can now be done at one of those integrated Service NSW Offices.
Just to drive home the difference referred to by Whale, owners corps can, by special resolution, agree not to maintain common property, provided it doesn’t affect the safety or appearance of the strata scheme.
Apportioning responsibility to owners is another matter. If the owner doesn’t want to spend money fixing up common property within their lot, then it’s up to them, provided the above exclusions are addressed. But it would take a unanimous decision to pass responsibility on to individual owners, rather than just taking it away from the owners corp.
Just as an example, the Owners Corp could not legitimately decide not to maintain automatic closers on apartment front doors as that would affect the safety of the building. But they might decide not to repair and maintain electric garage door equipment (on individual garages) as that is neither a safety nor an appearance issue.
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.
Jimmy T said…But it would take a unanimous decision to pass responsibility on to individual owners, rather than just taking it away from the owners corp.
I was aware that owners’ written agreement was required in order for an Owners Corporation (O/C) to require them to maintain common property that they’d altered or added to the building under Sect 65A, but save the provision relating to safety and appearance etc., I thought that a By-Law passed by way of a special resolution was all that was necessary to ensure that respective owners properly maintained defined item/s of common property already existing within or attached to their Lot/s.
What have I missed?
Maybe I am the one who has missed the point.
I thought the difference was between saying to owners, a) this is now your responsibility and b) this is now your obligation to maintain.
For instance, our OC passed a special resolution saying that lighting and cabling within the ceiling space was the responsibility of the lot owner.
Under this, if I choose not to replace blown downlights, it’s up to me. There is no obligation to do so but if I want them replaced or repaired, it’s my responsibility
Does that make sense?
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.
Yes it does… absolutely!
In the example you cite, I think we agee that a special resolution of the Owners Corporation (O/C) can legitimately transfer the responsibility for maintaining wiring within the ceiling space of lots from itself to you as an individual owner, however I don’t know of any provision of the Act that requires a special by-law to be unanimously (as opposed to specially) resolved in order to prevent you from sitting in the dark.
Thankfully, Johnny (post #1) is contemplating a transfer of responsibility for items such as insect screens and locks, where owners’ reluctance to themselves maintain those consequent to a special resolution of the O/C under the provisions of Sect. 62(3) would not necessitate a special by-law to mandate that maintenance.
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