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We are a small strata of 6. The building is surrounded by gardens, which we all enjoy. 2 units at the rear of the building have recently changed hands. The new owners of both units want purchase and build onto the rear garden area which is next to their balconies. The other 4 units do not want to sell, as we all enjoy the fully landscaped gardens which surround the building, and we feel that our amenity will be diminished by such a sale. At our last executive meeting the 2 owners of the rear units told us that if we did not accept their offer of sale, they would take us to NCAT. They said that NCAT would more than likely rule that we were “unreasonable” in not accepting their offer, and would make us sell to them! Is this possible? We are 4 are older people and we have no idea how NCAT works. They also said that NCAT would make us sell the common area because we need to raise funds for some repairs to the building. We are confused, as we already have all the funds we need ready for special levies to be struck for the repairs. Is it possible to make owners sell the common property to fund repair of common property, even though we want to do the repairs by special levies and we can fund these?
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I am in the ACT rather than NSW but I think some similar principles would apply even if the details vary. Giving over part of the common property to the exclusive use of particular lot(s) generally has a high threshold. In the ACT it is an unopposed resolution of a general meeting (except for ‘minor uses’). In NSW, I think a special resolution is required, which means that fewer than one quarter of the vote can be opposed if the resolution is to pass. So, with two in favour and 4 opposed you don’t get a majority in favour, let alone less than a quarter opposed.
The two owners could put their proposal to a general meeting. If it fails they could appeal that at the Tribunal making an argument that it was unreasonable for the motion to have failed. I don’t think the NSW Tribunal, if it acts like the ACT tribunal, would want to decide one way or the other until the proposal has be put to a general meeting for the owners to decide. If the motion passes, then the Tribunal was unnecessary. If the motion fails the Tribunal would at least know what level of support there had been among the owners.
I would expect that 4 of 6 opposed would not be a good start for their case. They would be better off if a majority had supported it and it had come very close to passing. Also, they would have a better case if they could show that nobody but the two units derived much benefit from the particular bits of common property – IE that the effect on the use and enjoyment of the common property by other residents would be negligible.
However, from the sound of it, you have good reasons to want to keep the area as common property for the general enjoyment of all residents. It is a fundamental principle in strata properties that all should have equal opportunity to use and enjoy the common property. So, I doubt the two have much of a case.
I think it is irrelevant whether the OC has necessary maintenance expenses. The OC can raise funds by other means.
This is bullying of the worst kind. The prospective land-grabbers’ arguments are spurious, not least because nobody can predict how NCAT is going to act, even when arguments are clear cut (and these certainly aren’t).
That said, my money would be on NCAT rejecting their demands.
The need for funds is totally irrelevant and I would be telling these people, in no uncertain terms, that regardless of the merits of their case (which are highly dubious) their methods – including misinformation and deliberate ingenuousness – undermine their cases.
You could put a very, very high price on the property – but I wouldn’t even go there. Don’t open that discussion. Tell them to take you to NCAT and say you will not only challenge their call but you will ask for all costs to be awarded against them.
If they want a unit with a garden that badly, there are plenty on the market.
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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