- This topic has 8 replies, 4 voices, and was last updated 2 years, 9 months ago by .
-
Topic
-
Property in NSW pre 1974, courtyards. 40+ years ago a lot owner at end of long path applied to have a bylaw for ‘exclusive use of end of path’ that was in front of lot courtyard. Plus existing courtyard brick wall within lot with gate was removed to make lot courtyard bigger. Gate now goes across path to enter into lot.
Previous owner paid for by-law and removal of brick fence and rebuild of brick column all costs. however the column that latches the gate was moved to in-front of common property boundary fence. Seven or so years ago the gate latched. Now it doesn’t because the column has moved, because of poor rebuild or subsidence of the ground. Since this was done there have been several owners and the current owner of the lot has told the committee that the gate doesn’t latch and it’s moved about 2-3cm and the column is leaning on besser brick fence and leaning over.
Current owner wants to sell, and wants Strata to pay for rectification of the column and leaning fence both inside this courtyard and along common property path leading up to gate. If Strata never paid for this lot courtyd fence removal, column and associated works all those years ago would the current SP be liable now? Column where gate latches is cemented to wall it could be wall that has moved and dragged column with it.
What type of engineer do we need to inspect?
And given works were done by previous owner with the full all due approvals, by-laws and expenses. why would the SP now be responsible? Hinged side of gate is on existing column (never moved) latch part of gate on rebuilt column all within the ‘courtyard’.thank you
-
Replies
-
You need to look at the bylaw for this fence/ gate carefully.
If it says that the maintenance of the fence/ gate is the responsibility of the owner, then the owner pays all upkeep.
If the bylaw is silent on who maintains the fence/ gate, then the OC is responsible.
This may get caught up in the Dividing Fences Act. I had an opposite situation wherein the Body Corporate (BC) had two goes at fixing part of a brick wall because the MS “Recommended” that it was the responsibility of the Body Corporate. The fixes didn’t work. However four years later the BC decided that the wall was a 50/50 proposition, I think because I had challenged them on other issues in the meantime. They got legal advice which decided it was a Dividing Fence. Pretty easy when the BC is picking up the bill. An NCAT appeal by me was dismissed and as Jimmy says in another forum, NCAT are not interested in the morality of an issue they will just look for a legal clause they can use to justify their decision.
The actions of others as they affect us , I see dividing into two area. Things that are morally questionable ( but strata legal) and things that are strata illegal.
The tribunal will not solve nor entertain the immoral behaviour ( unless it is strata illegal). If you are going to start action through the tribunal make absolutely sure which part of the act you are going to rely on.
This may get caught up in the Dividing Fences Act.
I think there is a more fundamental question to be established first which is, as Kaindub noted, who is responsible for the lot-side of the gate, based on the by-law passed to allow the gate to be built?
If the by-law includes a clause that establishes the lot owner as being responsible, then that applies. If it doesn’t apportion responsibility to any party, then it defaults to the owners corporation.
If you then discover that there are different parties on either side of the gate, then the Dividing Fences Act may indeed apply.
By the way, it’s because of conflicts like these that strata law was changed to to establish that responsibility for changes to common property must be assigned to either the lot owner or default to the owners corp. This wasn’t to make the owners corp responsible for all changes, but to make the owners aware that if they didn’t make sure responsibility for repairs was passed to the lot owner, then it would revert back to them in the future.
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.
looks like it defaults to SP
Agreed. And for other readers, this is a worst case scenario because the owner has permission for the gate posts but the OC has responsibility for its upkeep. If the original owner had just done this without permission, the OC would be in a much stronger position.
However, if I was chair of the scheme I’d be insisting the the owner cleaned up the yard first before I’d so much as called a brickie. And I wouldn’t be authorising even the slightest improvement (rather than repair) until the owner took responsibility for the gate.
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.
Either way, the process is the same: you need to get the previous one rescinded or amended, for which you will need the current owner’s permission. You will also need their agreement and permission to bring in a new version. And it will all have to be confirmed by a special resolution at a general meeting.
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.
- You must be logged in to reply to this topic.