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Topic
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Hello
I live in a self managed block of four units in NSW informally run (self managed) by two long term residents. Financials are written on paper, there are no formal AGMs, no voting, no by laws and the exec members have limited knowledge of strata laws, no sinking fund when I moved in.
Anyway- about twelve months ago I requested permission to remove two internal walls. I provided a cert and plans from a structural engineer indicating work was safe.
The Body Corporate originally said (in writing) they would like to get a second opinion from an engineer which I agreed to, they then said they would only approve the removal of walls to mirror the unit above me which has had one wall removed and the other wall has two ‘nibs’ on each side (like a widened doorway rather than the whole wall removed).
They ‘approved in principle’ the removal of walls to mirror the unit above pending receipt of a sub floor report and builder’s insurance which I provided. They would not give me any reason as to why I could not proceed with plans by my engineer (the only difference being the two brick nib left on each side) and did not engage an engineer.
long story short- I took the matter to mediation as they would not let me use my plans and my engineer would not change them as he said he had designed the plans so the two beams could lock in to one another. despite numerous attempts to explain this, the plans were rejected by the body corporate because they did not reflect the layout of the above unit.
mediation failed and they said that because I had escalated the matter at mediation- they withdrew all approval despite approving in writing, the removal of one wall and widening of doorway. What was discussed in mediation was not recorded, however, I decided to seek adjunction to have plans approved and requested to have a by law (covering any damage now and in future) registered- I had raised this several times but the BC literally have no understanding of by laws and never took me up on this.
I have spent several thousand dollars amending plans at their request and time organising sub floor report, council approval etc (which I did on the understanding that as a worst case scenario, I had approval in principle for the work to mirror the above unit).
The relationships have now soured and we are not on speaking terms. we suspect the long termers would like us to move on, give in and sell. they even told us that this was a ‘starter apartment’ and that we should ‘go and nest’! we are the only couple in the block. I am currently awaiting the outcome of the adjunction decision with baited breath.
any advice/comments about whether body corporate can withdraw approval which has been recorded and minuted? Many thanks
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No they can’t withdraw approval because from what you have outlined above, no approval has been given – there has been no approval by the owners at a general meeting of what you want to do. (I may be wrong but from what you said there has been no general meeting?)
I suggest you wait for the outcome of the adjudication, but going by what you have said, why don’t you put in another application for appointment of a compulsory strata manager, because this scheme sounds like an absolute mess? (I have now suggested this for two posters, must be something in the air)
unless it’s a special resolution by-law, the EC can change it’s mind as it pleases. However, they have to justify their decision when challenged at NCAT and this would be seen as petulance, pure and simple.
The fact that you have gone to mediation is great as you can now move to the next step which would be to seek orders under section 140 (see below) at NCAT compelling them to approve the changes. I would also warn them that any further attempts to obstruct you will result in a claim for compensation for costs and an application to NCAT to have a strata manager appointed to take over the running of the scheme.
Go back to your original plan and get NCAT to force them to accept it.
140 Order relating to alterations and repairs to common property and other property
(1) An Adjudicator may order an owners corporation to consent to work proposed to be carried out by an owner if the Adjudicator considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
(a) alterations to common property directly affecting the owner’s lot,
(b) carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.
(2) An Adjudicator may make an order approving of alterations or repairs already made by an owner to common property or any other property of an owners corporation directly affecting the owner’s lot if the Adjudicator considers that the owners corporation unreasonably refused its consent to the alteration or repairs.
(3) An order under subsection (2) is taken to be the consent of the owners corporation to the alterations or repairs concerned and may be expressed as having effect from a day specified in the order that occurred before the order was made.
(4) An Adjudicator may specify in an order under this section whether the owners corporation or the owner of the lot concerned has the ongoing responsibility for the repair and maintenance of any additional property arising out of an alteration or repair to common property approved under the order.
(5) If an order makes provision for the owner of a lot to have the ongoing responsibility for the repair and maintenance of any such additional property, the order also has effect in relation to any subsequent owner of the lot.
(6) In deciding whether to grant an order under subsection (2) or to provide for the order to have effect from a day that occurred before the date of the order, an Adjudicator may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the alterations or repairs.
(7) An application for an order under this section may be made only by a lessor of a leasehold strata scheme or an owner.
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.
I would go ahead with the work anyway. I doubt they have a leg to stand on in this case.
@gusmich said:
I would go ahead with the work anyway. I doubt they have a leg to stand on in this case.I wouldn’t. You need the cooperation of your neighbours for major renovations, including access to common property parking for the builders.
And you lay yourself wide open to blame for every little crack and crevice in walls and ceilings, whether they were there before or not.
This committee clearly doesn’t undertand the law – why make it easy for them to hit back when you could make it all official through NCAT?
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.
@annoyed007 said:
HiIt would be tempting to go ahead but we want to do the right thing and follow correct procedures. also, it will be a good lesson for them that they need to educate themselves about what they can and cannot do and the correct processes (if we have the work approved) and might encourage them to now familiarise themselves with strata law- that is part of the reason we chose to mediate as we could not get anywhere with them.. I will keep you posted as it will be interesting if the adjunctor does not approve the work. we shall see
Sorry I missed that you did not have the outcome from the adjuciator. Jimmy is right.
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