Flat Chat Strata Forum Common Property Current Page

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  • #8848
    Felix
    Flatchatter

      For the past 2 years the OC has had an exclusive use by-law in place for storage cages.  This by-law was approved at 2 AGM’s but not registered with the Registrar General’s Office.

      At present there is a dispute between 2 Owners over who is entitled to one particular space.

      In passing the by-law for exclusive use these 2 Owners were left out of the by-law and it is common property.

      My understanding is that both parties must vacate the storage areas in question until the matter is settled.  Is that correct?

      If it is correct can the EC issue instructions to both parties to take their belongings out of the 2 storage areas in question immediately until the matter is resolved ?

      If the matter is resolved would it be necessary to get a letter in writing from the Owners involved as to the outcome ?

      If one party refuses to comply with the request to vacate the storage areas, which are common property, and assuming that they have to vacate, what can be done to enforce their removal.

      Would they be subject to a fine ?

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    • #18196
      Jimmy-T
      Keymaster

        A new or amended by-law has to be registered at the  Registrar General’s Office within two years of the vote being taken to make the change.

        Until such times as the by-law has been registered, it has no legal standing.

        The question of who should vacate what and when is not so clear cut.  In simple terms, the EC could ask the owner concerned to vacate what is still common property until such times as the matter is resolved.

        However, I would caution you that there is a common law principle called something like fraud against a minority which basically concerns a majority of owners having legitimately (under the law) chosen a course of action which discriminates against a minority.

        An example would be 80 owners in a building of 100 units but only 80 car spaces, awarding themselves exclusive use of common car spaces, and let the other 20 owners go whistle without compensation of any kind.

        Strata law allows for a 76 percent majority to pass a by-law but common law doesn’t allow such blatantly unfair behaviour.

        So, in your case, the person who loses out on the storage could have a claim against the Owners Corp which could lead to the original and as-yet unregistered exclusive use by-laws being struck down.  If the two excluded owners currently arguing over the one storage space get together, then you might have real trouble on your hands.

         

        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.
        #18215
        ccbaxter
        Flatchatter

          JimmyT, I just wanted to double check please. I believed until now, a by-law came into force straight away when it was voted in. Are you sure you’re right and it has to be registered before it’s in force, as you say? Two years is a ridiculously long time, eh!

          And your “common law principle called something like fraud against a minority which basically concerns a majority of owners having legitimately (under the law) chosen a course of action which discriminates against a minority” is a great piece of information. Any chance of you elaborating on this please?

          Both these issues a very relevant where I live.

          #18216
          Jimmy-T
          Keymaster


            @ccbaxter
            said:
            JimmyT, I just wanted to double check please. I believed until now, a by-law came into force straight away when it was voted in. Are you sure you’re right and it has to be registered before it’s in force, as you say? Two years is a ridiculously long time, eh!

            Strata Act Part 5, Division 3

            48 What steps must an owners corporation take to make an amendment effective?

            (1)  An amendment or repeal of a by-law or, a new by-law, has no force or effect until:

            (a)  the owners corporation has lodged a notification, in the form approved under the Real Property Act 1900 , in the Registrar-General’s office, and

            (b)  the Registrar-General has made an appropriate recording of the notification in the folio of the Register comprising the common property.

            (2)  A notification cannot be lodged in the Registrar-General’s office more than 2 years after the passing of the resolution for the amendment, repeal or new by-law.

             

            And your “common law principle called something like fraud against a minority which basically concerns a majority of owners having legitimately (under the law) chosen a course of action which discriminates against a minority” is a great piece of information. Any chance of you elaborating on this please?

             

             

            There’s an excellent article on this by our legal sponsors Makinson & d’Apice on page 6 of THIS document.

            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.
            #12381
            ccbaxter
            Flatchatter

              Link to legal sponsor’s excellent article seems to go back to common property forum. Thank you for your advice, though, JimmyT, and hope you can fix the link.

              #18539
              Felix
              Flatchatter
              Chat-starter

                Jimmy;

                Thanks for your comments and we are discussing Strata in NSW.

                I agree and know about the by-laws being registered within 2 years etc. but I don’t know about a common law principle regarding a minority.  In this case i don’t think it’s important but in saying that I don’t know about this common law.

                You didn’t answer my questions about how best to solve this and I understand that legally the by-law has to be registered before action could be taken. However I’m hoping that common sense would prevail before we have to go to mediation.

                The reason this disagreement is taking place is because the storage space in question is larger than the one used by one of the Owners and a couple of opportunists have tried to take over the larger space.

                The first owner who tried went to the CTTT and had their application dismissed.

                In dismissing this application the adjudicator of the Strata Schemes suggested that it was a matter for the OC.

                It never went to the OC but instead the EC allocated this common property to an officer of the EC.

                We know that the EC does not have the authority to allocate common property.

                I might add that both parties have been using their assigned spaces by the builder since 1985 and 1987.

                There are many other issues in this that have been going on for 4 years and every one is sick and tired of it.

                What we are trying to achieve is a quick solution to the matter without going to mediation but if necessary that will be done!!

                #18540
                Jimmy-T
                Keymaster

                  @ccbaxter said:
                  Link to legal sponsor’s excellent article seems to go back to common property forum. Thank you for your advice, though, JimmyT, and hope you can fix the link.

                  It’s fixed.  Thanks for the heads-up.  But just in case HERE it is again – page 6.

                  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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