Chairperson issues and advice

unitowner1 – the tiling work involved would be regarded as a change to the Common Property (floor) of the balcony, and as such and in the absence of an existing Special By-Law covering the conditions under which that type of work may be undertaken by Owners, consent cannot be granted by your Executive Committee (E/C) or unilaterally by its Chairman.

The correct procedure is for the Owners Corporation (O/C) to consider the past works by other Owner/s retrospectively and together with yours at a General Meeting, where a special resolution would needed to grant consent, and to set out the conditions applicable to future works such as but not limited to work times, noise, disposal of residues, waterproofing, and contractors’ licenses and liability insurance.

Then, and only if the O/C wishes with Owners’ consent to make them individually responsible for the on-going maintenance of their tiles, the wording of a Special By-Law (SBL) would need to be decided upon in the same way and be then properly Registered on the Title for the Strata Plan.

It’s entirely appropriate for that SBL to be drafted by the E/C and be then put to a General Meeting as you suggest, and in the circumstances it would be appropriate in my opinion for the O/C to cover the costs of that SBL as it would cover existing works and those which may be proposed in future, and enable those future consents to be granted by the E/C in accordance with its conditions (i.e. no General Meeting necessary).

KWP – I do understand your point; it’s one you regularly make.

However even though its unitowner1 ‘s Owners Corporation (O/C) who should be meeting all the costs of both rectifying past errors in the management of its Strata Plan and properly considering new renovation works such as those proposed, I guess that any decision about whether to handle such things in the right (legally correct) way or to do them on the sly is a conundrum that individual Owners and indeed O/C’s need to resolve.

At this point in time at least, I remain of the opinion that irrespective of the scale of the individual matters under consideration it’s preferable to manage those in a legally compliant way in the first place, and to thereby avoid future problems, resultant conflicts, and perhaps most of all the foibles of the NSW Civil and Administrative Tribunal (NCAT) where if things haven’t gone totally pear-shaped they then will!

NCAT has the power to order an Owners Corp to allow work to be done.  Have a look at section 140 of the Act (below).  Note that it specifically mentions the previous behaviour of both parties, including taking into consideration whether or not the lot owner applied for permission.

Your best bet may be to canvass other owners before they have a meeting and let them know that, while you would rather settle this amicably and with all necessary protections for the Owners Corp in place, you plan to pursue this all the way to NCAT if need be.

Significantly, if they follow the chairman blindly, they could be up for tens of thousands of dollars in legal fees and still have to give you permission. You might also want to write to all owners and not just the EC, warning them of the unnecessary costs they might be facing.

At the same time, be as reasonable and accommodating and ‘legal’ as possible so that any objective assessment would reveal who was at fault here. 

By the way, as a member of the EC, you can very simply propose a motion that the chairman be removed from office (though not from the EC) and replaced by someone else.  If this guy is as autocratic as you suggest, then you won’t be the only person who is tired of his antics and all it requires is a simple vote by EC members to remove him from that role (provided you have someone else on the EC prepared to replace him).

140   Order relating to alterations and repairs to common property and other property

(1)  An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:

(a)  alterations to common property directly affecting the owner’s lot,

(b)  carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.

(2)  An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.

(3)  An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.

(4)  An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.

(5)  If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.

(6)  In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.

(7)  An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.