Enforcing breach of by-law after more than 3 yrs?

Two issues here, going back to your link to Simone from Teys Lawyers, she quite clearly says that any enforcement of by-laws has to be initiated by a written complaint.  Whether that includes, for instance, a minuted issue raised at an Executive Committee meeting, I'm not sure. However, I do know that the EC has to raise, discuss and vote on a Notice To Comply before it proceeds (or have delegated those powers to their strata manager).

More significantly in your case, the EC has missed the boat on this air-con issue.  They had their opportunity to enforce their by-laws when the original owner installed the air-con. The fact that they didn't and the installer has sold up and moved on means the air-con is their problem, not yours.  Any argument they may have that this was a previous EC is irrelevant.

This is not a case of caveat emptor (buyer beware) as they will probably argue, but “EC attend to your obligation to maintain common property” (no idea what the Latin for that is).

So sit tight and tell them to talk to their lawyers about this.  But be prepared, as a good strata citizen, to let them move the air-con to an acceptable location at their expense but with your undertaking to look after its ongoing maintenance.

This does seem a bit harsh on all the other owners who will contribute to making good the previous EC's errors but it's an object lesson in why changes to common property should never be allowed to go through on a nod and a wink.

ach said:

1. The following post here on FlatChat states that there must be a complaint submitted before a notice to comply can be issued:
/forum/by-laws-and-outlaws/processes-of-by-law-enforcement/#p598

Is this correct, does the Executive Commitee really need a complaint to be submitted before it can enforce bylaws?

 Hi Ach,
It is preferable there be a written complaint but the EC, not the agent – unless the agent has been given the powers of the EC in the agreement, can act if the EC is satisfied there has been a breach of a by-law.

There is no legal requirement for a written complaint but a good EC will generally not act without one. There being a written complaint is good procedure, not a legal requirement.

You should expect to see an item on an EC meeting agenda if the EC is considering sending a notice to comply. If there was not proper notice of the matter on an EC meeting agenda then note that in my SP a notice to comply was retracted after such a failure (abnd mediation) and there is always the famous quote from, now deputy Chair, CTTT Member Balding.

“I accept in effect the applicant’s submission that before a decision can be made by the owners corporation whether at its general meeting or by its executive committee meeting there must be due notice.”
M Balding in Bales v The Owners Corporation SP 12303 (Strata and Community Schemes) [2009] NSWCTTT 296 (2 June 2009)

Sending a notice is a decision and proper notice is important – allegedly.

Jimmy gives you good advice. It is now the OC’s problem given their “approval” came in the form of acquiescence when the unit was installed.

Dech

I'll put that question back to you and ask where it says in the Act that unapproved alterations by a previous owner are the responsibility of the new owner.  What the Act does say is that the Owners Corporation has an absolute responsibility to maintain and repair common property and everything else flows from that.

Ignorance is no defence in common law and neither, it seems, is it in strata law.  'm not saying it's right or fair, and maybe there should be an opportunity to hook people retrospectively for damage done to CP while they owned the property. But it is what it is.

In this case, the air-con unit must have been visible for years and its installation can't have gone unnoticed.  I'd be intereted to see what happened if an OC did pursue a previous owners over damage done in the past.

I have a feeling that you do have to declare that you don't know of any unauthorised work when you sign a sales contract.  But I'd imagine the defence would be along the lines of 'the former chairman (RIP) said it was OK and it's been there for years anyway'.

Your comment about having a clear record of work done is absolutely right.  A paper trail will be required at some point in a legal action and in smaller blocks, especially, owners need to be on alert when a builder's ute suddenly appears in the driveway

Ach

I repeat my previous advice which is to get the Executive Committee to talk to a strata lawyer (at their expense).

Meanwhile, send them a letter telling them that you have been advised that this is not your responsibility but (if you wish) you will consider letting them move the air-con unit at their expense.

It actually is clear-cut, according to the advice I have had on other issues. So a polite letter telling them they’ve got their facts wrong is quite in order.

They wouldn’t be the first EC or strata manager to fall foul of this .  Logic and commonsense would suggest they are right but those two characters aren’t around too often in strata matters.

And don’t get bogged down in nitpicking about written complaints. The law seems to be on your side and that gives you a position of strength from which to negotiate and reach a happy compromise.