Flat Chat Strata Forum Strata Committees Current Page

  • Creator
    Topic
  • #7305
    Anonymous

      I have an issue in my strata block where the developer has made additions and alterations to common property without approval.  I raised objections however subsequent unit sales have had terms inserted in them that indicate the owners acknowledge and support the alterations.  

       

      Legal action for breach of contract has been threatened against other owners if they do not give their support at an upcoming EGM to validate the alterations and additions.  Due to their not wanting to enter legal dispute, it is likely the motion will be voted up.  I think this is utterly ridiculous and want to contest it.  What is my best approach to take? 

    Viewing 6 replies - 1 through 6 (of 6 total)
    • Author
      Replies
    • #12603
      Jimmy-T
      Keymaster

        Some developers are real charmers, aren't they – unable to come to terms with the idea that once that have sold a property, it doesn't belong to them any more.

         

        There's a section of the strata Act that I think might be relevant to you.  It says:

        (7AA)  An original owner or a person connected with the original owner
        may not cast a vote by means of a proxy or power of attorney given by another
        owner of a lot in the strata scheme concerned if the proxy or power of
        attorney was given pursuant to a term of the sale contract for the lot or
        pursuant to another contract or arrangement that is ancillary to the sale
        contract.

        (7AB)  Any contract or arrangement referred to in subclause (7AA) is
        unenforceable to the extent that it requires the giving of any such proxy or
        power of attorney.

        So what you should be telling your neighbours is that there's no point in voting for this because it's illegal anyway. And as for suing for breach of contract – it's more likely that you'll collectively be able to sue for the return of Common Property to its rightful owners.

        Moreover, there's a possibility that the new Federal laws on unconscionable contracts may apply here too.

        Get together with a couple of other owners and hire a specialist strata lawyer to look at the details of the case.  Then get them to send a letter to your developer explaining how the law forbids this kind of blackmail by contract.  Also, have a motion to resume the common property added to the general meeting with the advice for the strata lawyer added as an annex to the motion so that everyone can see it.

        Your developer needs to learn that they can't bully and blackmail owners with empty threats of legal action when they, more than likely, are the ones on the wrong side of the law.  And your neighbours need to learn to stand up for their legal rights.

        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.
        #12608
        Anonymous

          Thanks very much for the advice Jimmy, I'm new to strata ownership and have nothing but trouble with these developers. 

           

          Based on conversations with other owners I'm not sure they'll be standing up against the developers but I'm definitely not going to take this lying down.  Am in contact with strata lawyer today

           

          cheers..

          #12619
          Anonymous

            Hi GB2011

            I assume you are in NSW.

            There are a few things to consider.

            Firstly, there is a recent Queensland Supreme Court decision on exactly this issue. In Wilson v Mirvac Queensland Pty Ltd [2010] QSC 87, Justice Wilson considered whether a buyer had been materially prejudiced by the omission of CCTV security, a BBQ, furniture and artwork from the body corporate assets.

            Secondly, section 113(1)(a) of the Strata Schemes Management Act restricts what the original owner can do during the initial period. It is unclear from your post as to what stage the development is at.

            Finally, developers owe fiduciary duties (ie duties of a higher order than contractual duties) to lot owners. For example, there is a duty not to change a scheme materially.

            Further instructions would be required to provide more precise advice but the above should give some guidance to you.

            Let me know if you have any questions.

            Regards

            Chris Kerin
            Senior Lawyer


            TEYS Lawyers
            The Strata Law Experts
            02 9562 6500
            Suite 73, Lower Deck
            Jones Bay Wharf
            26-32 Pirrama Rd
            Pyrmont NSW 2009

            Don't miss our next 
            monthly webinar:
            Death On The Common 
            Property – Who's Guilty
            Register here now

            #12626
            Anonymous

              Thanks for the reply Chris,

               

              I am in NSW – the additions to common property were installed in the initial period of the strata scheme (however it is no longer under in this stage).  I have already obtained an order from the CTTT a return tof common property to the original condition under section 113 i)a) The  order specified “unless proper approval is obtained” and the contract terms for subsequent sales are being used to obtain this “proper approval”.

               

              I would contend that this does not constitute “proper approval” but it is quite a complex issue and the developers resources are considerably more than mine.   

               

              I do have a few questions:

              1. Can a motion to accept alterations to common property passed under section 65a) validate a breach of section 113?
              2. Can the CTTT reverse such a motion (based on either inappropriate nature of the motion or the terms regarding proxies raised by Jimmy above)?
              3. Is the concept of fiduciary duty relevant to applications to the NSW CTTT?  or are applications to be based solely on the Strata Schemes Management Act?

               

              In the event that a motion is passed to accept the panels I will apply for the motion to be reversed by the CTTT (on the grounds mentioned above by Jimmy) and then apply for the order for removal to be enforced.  Does this seem a reasonable approach?

               

              any thoughts are appreciated…

              #12630

              Hi GB2011

              Thanks for your response.

              Unfortunately, in order to properly respond to your questions, considerable time would be required for which we would need to charge a fee.

              Please let me know if you wish to engage me to provide answers to your questions.

              Regards

               

              Chris Kerin
              Senior Lawyer


              TEYS Lawyers
              The Strata Law Experts
              02 9562 6500
              Suite 73, Lower Deck
              Jones Bay Wharf
              26-32 Pirrama Rd
              Pyrmont NSW 2009

              Don't miss our next 
              monthly webinar:
              Death On The Common 
              Property – Who's Guilty
              Register here now

              #12635
              Jimmy-T
              Keymaster

                I'm planning to base this week's Flat Chat column on this so let's see what comes up after bthat.

                 

                JimmyT

                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.
              Viewing 6 replies - 1 through 6 (of 6 total)
              • You must be logged in to reply to this topic.

              Flat Chat Strata Forum Strata Committees Current Page