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I would love to rejuvenate a tired-looking courtyard garden. Shrubs have died. Patches of algae-covered soil remain. It looks so neglected.
The courtyard used to look really gorgeous before the committee of the front-facing units decided that this was not their concern (or should be anyone else’s) as the garden is not street-facing. Mind you the garden that the EC see from their balconies are well manicured. The other residents that face the courtyard are forced to look into a dying garden.
Over the years no money has been allocated to maintaining the garden and I am so frustrated by the resistance of the EC to allocate any of our budget to maintaining a healthy garden. When I push the committee on the issue, it’s always the same response ‘No money!’.
What can I do to ensure this valuable part of our property gets the attention it deserves.
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You could put a motion to the next general meeting to be put later in the meeting after the acceptance of the EC’s proposed budget. The motion could be along the lines of:
That the 2023-24 budget be amended by 1) the addition of $X for the refurbishment of the courtyard garden to be spend in accordance with the attached proposal and 2) an increase in the total annual levy by $X in order to leave the rest of the budget unaltered, and that future budgets include a sufficient allocation for the on-going maintenance of all common property garden areas.
The attached proposal could detail the one-off costs needed to get the garden spruced up in the first year.
The motion can be defeated though right?
Yes. I would only do this if you have got the numbers having talked to neighbours. It is a way to force the hand of the EC.
I have been discouraged in the past to add a motion because it would have to go through the OC whereas I was told that if we informally discuss the plans, then the EC could allocate funds within permissible limits for the gardens.
Yes. If the EC could be persuaded to use some of an existing budgets for grounds maintenance, that would be preferable. It depends whether there really is sufficient money in the budget or not. The motion would be a way to ensure there was enough.
Is the OC obliged to keep the gardens in a state they were when I bought 15 years ago?
There is a general obligation to repair and maintain any aspect of the common property and that includes the grounds. That might not mean exactly as it was 15 years ago but the gardens should not be simply neglected. An advantage of a motion could be to set out what the OC wants its gardens to look like. Some people might be happy with gardens that look a little wild while others might want lawn you could play bowls on. It depends what people want and that could change over time.
The legislation would be the bit that requires the OC to maintain its common property. I am in the ACT so I can’t point to the relevant chapter and verse elsewhere but it is a fundamental provision in all strata legislation.
Could you perhaps find 2-3 allies who would work on the courtyard garden with you? Perhaps you could offer to the committee that you would provide the labour if they agree to reimburse you for just the small cost of a few plants, some mulch, a bag of compost … Work out a budget of what you would need and present that to them.
Then, at the AGM, you don’t put a motion but you do give a short speech about how the OC really needs to accept its obligation to maintain the common property and put more into the grounds maintenance line of the budget, even if that means putting levies up a bit. Point to the improvements you have made to the courtyard and the small cost that was involved.
If they had not agreed to even let a few volunteers fix up the garden at very little cost, then you point that out at the AGM and shame them into letting you go ahead.
I’ll back what Sir Humphrey says, but I’d also be ready to be a tad more aggressive.
First of all I would get a local real estate agent to guesstimate the difference the view of a neglected garden would make to rents and purchase prices, compared to a view of a well-tended patch.
Then I would ask for a meeting with the chair or secretary to explain the steps you intend to take to get it fixed.
First, the simplest and least painful option for all concerned, they could support a motion to spend money on improving the neglected garden, then budget to spend just as much on its upkeep as they do on the front garden. The fact that no one wants to raise levies is irrelevant – the owners corp has statutory duties that it must fulfil.
Failing that, you will seek the support of other owners, especially those who share your aspect, in getting the committee to change its mind. You will explain to these owners how the neglect of the garden is affecting the value of their properties and to the other owners how doing nothing could cost them more than taking action.
Then submit a motion to the committee with a rider to the effect that failure to act could cost the strata scheme more, in real and immediate financial terms, than doing what is required. At least then you will have it on the record.
If the committee dig their heels in, tell them you intend to commence proceedings through Fair Trading and NCAT to enforce Section 106 (below), explaining that it will cost more to defend the action that it would to fix up the garden
If they’re still not listening you might suggest that failure to fix the common property could also, theoretically, result in claims for damages (loss of value or rent) by all the affected owners under Section 106 (5).
And you can point out that section 106 (3)(b) makes it clear that even a decision by special resolution not to fix the garden would be invalid since it would “detract from the appearance of any property in the strata scheme.”
First get some support from other owners, then talk to the office-bearers and, as Sir Humphrey suggests, offer to make it as easy for them as possible (such as volunteering to help with the work if they provide tools, plants and materials).
But if they are not listening or delaying, explain how you have strata law on your side and any efforts to obfuscate or defer will cost them and other owners (but not you) dearly.
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other lawThe 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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