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Does anyone inow if a by-law can be reversed? Is there any precedent on this or is this uncharted territory?!
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What do you mean by “reversed”? Any by-law can be changed by a 75 percent vote at a general meeting although in the case of a special resolution allowing an owner exclusive use of common property, it can only be done with their permission.
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.
In addition to what Jimmy says, be prepared to compensate the owner in that instance. There is a formula for calculating how much a lot owner must pay the OC when improving common property (eg when installing a picture window to get an ocean view) but I’m not sure if/how that would work in reverse in addition to any other market compensation needed
Do you need the owner’s permission to reverse a special privilege? In the ACT (which might well be different) it requires a special resolution to rescind a special privilege over common property with no mention of needing agreement from the owner with the special privilege.
@PeterC said:
Do you need the owner’s permission to reverse a special privilege? In the ACT (which might well be different) it requires a special resolution to rescind a special privilege over common property with no mention of needing agreement from the owner with the special privilege.In a word … yes. Presumably its to stop people having to undo changes they’ve been allowed to make when a new bunch of owners decised they’ve changed their minds. This is what the NSW Act says:
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
(1) An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:(a) with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and
(b) in accordance with a special resolution.
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If a lot owner has the benefits of a special privileged by-law, those special privileges cannot be amended or rescinded by an Owners Corporation without the consent of the lot owner affected.
Usually, lot owners who are the beneficiaries of valuable rights such as special privileges do not give consent to their amendment or repeal. This means that the Owners Corporation would need to make an application to the strata schemes adjudicator seeking order that the owner has unreasonably refused to consent to the repeal or the amendment of the by-law concerned. At first instance, the Owners Corporation would need to apply for mediation with the lot owner affected before moving to an application for strata schemes adjudicator’s orders if mediation was unsuccessful.
We note that mattb refers to compensation to be paid to an owner who is losing a special privilege. While we think there is no obligation on an Owners Corporation to offer compensation to a lot owner from whom the Owners Corporation wishes to take away its special privilege or amend a special privilege by rescinding or amending a by-law, compensation may be the sweetener which elicits the co-operation and consent of the lot owner affected by the rescission/amendment to the by-law.
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