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Hi Flat Chatters,
You have been very helpful in the past – thank you – and I wonder if
you know the answer to this query?We hope to get strata and council approval to build a deck across our flat, which stretches across the front of a six-unit apartment block (two flats at the front, four at the back). We would be building in common air space, etc. A real estate agent said if it is done well it will add value to the whole building. But should we compensate the five other owners in any way for allowing us to build a deck, which we will make sure enhances the building? We believe we are good strata members, regularly maintaining the garden plots on the council verge in front of the block (and next door), which we had also planted out to stop people dumping old furniture on the verge (a regular occurrence in Bondi). So, should we compensate other owners if we build a deck in common air space? What do you think? Thanks in anticipation. Cheers, Diana
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Hi Diana,
What you’re proposing can be quite complex if not handled correctly, so here goes:
1) You need to ask the Secretary of your Executive Committee to convene a General Meeting of the Owners Corporation (O/C), and you need to put forward two (2) Agenda Items:
(i) Seeking the O/C’s consent by way of a Special Resolution for you to make an addition to the Common Property. You should provide the Secretary with copies of the Plans & Specifications of your proposed Deck, together with copies of your tradespeoples’ licenses, copies of their public liability insurance policy/s, and other relevant details such as how they and their equipment will move about and be stored on the Common Property during construction.
(ii) Seeking the Registration of an Exclusive-Use By Law, that as its name implies grants you and all subsequent Owners of your Lot the right to exclusively use the deck, and where the quid-pro-quo is that you and subsequent Owners of your Lot are entirely responsible for the proper maintenance of the deck as an addition to the Common Property.
A Special Resolution can only pass if no more than 25% of those Owners in attendance at the General Meeting, either personally or by proxy, vote against your proposal; so some prior networking would be worthwhile.
There’s no requirement for you to compensate other Owners or your O/C, but it is customary for you as the Proponent to cover the O/C’s costs to convene the General Meeting (unless it’s the scheduled AGM), and to pay its costs to draft and Register the Exclusive Use By-Law on the Strata Title.
By the way, that By-Law should include a provision that your right to exclusively use the deck cannot be rescinded or otherwise removed by the O/C without the prior written consent of the Owner of your Lot (i.e. you and subsequent Owners).
I don’t think I’ve omitted anything of significance, but if I have, I’m sure that others will fill in the gaps.
(Gap 1 – you will need your O/C's consent before you lodge Plans with Council, as the latter will likely want copies of that consent before they consider the Plans – Whale)
Diana from Bondi said:
… to build a deck across our flat, which stretches across the front of a six-unit apartment block (two flats at the front, four at the back). We would be building in common air space, etc. A real estate agent said if it is done well it will add value to the whole building…
Hi Diana
It is hard to picture what your apartment block looks like and if the proposed deck in common “air space” is above another unit.
How can one deck add value to the whole building if it is only for one apartment?
As Whale has explained there is much you need to do to get it approved then built to an acceptable standard.
If I was going to be in an apartment underneath that deck I would veto it, because I would be worried that any future owners (and maybe even you) would not maintain it properly, even if it was built to cope with the sea air.
Every year we hear of decks collapsing and people injured. Probably because those decks were old and overloaded at a party, but it happens.
Whale said:
There's no requirement for you to compensate other Owners or your O/C, but it is customary for you as the Proponent to cover the O/C's costs to convene the General Meeting (unless it's the scheduled AGM), and to pay its costs to draft and Register the Exclusive Use By-Law on the Strata Title.
There's no requirement in the Act but your neighbours might say now or in the future, “what's in it for us”? In other words, the 'requirement' might simply be to keep them happy so you get the 75 percent of the votes you need to pass this.
And there was a case a few years ago where a majority owner gave himself permission to annex the roof pace of his building without compensating the other owners. That was deemed a 'fraud against the minority' and he was forced to pay his neighbours for using their common property to massively enhance the value of his.
The formula established then was the that you pay the Owners Corporation the difference between the value of the home as is and what it will be worth as improved, minus the costs of building the deck (including legals).
It may be minimal, it may not. But it's something you should at least look at to keep your neighbours onside.
That aside, Whale's explanation of the process is spot on.
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.
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