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26/04/2013 at 12:11 am #8804
We have just received our AGM notice and two of the items refer to the owner of an end townhouse wanting a garden in the front of their townhouse for “privacy” reasons. They would also like to create a garden bed in the area next to their townhouse. They were given permission to install a door in the exterior wall and obviously now would lke a the OC to provide a garden. They have stated that if there are insufficient funds or the OC do not deem it a priority they are prepared to pay for the establishement costs themselves. I am very concerned that they are trying to take over common property for their own use and the OC will be liable for their upkeep just to benefit one owner. Are they able to do this under Strata Law?
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27/04/2013 at 11:52 am #18330
In short, YES the owners of the townhouse can request the Owners Corporation (O/C) to construct additional garden areas, which I assume involves Common Property.
Irrespective of who undertakes the proposed works, they’re additions or alterations to the Common Property and as such a vote by way of a Special Resolution is required, where ≥75% of those owners present both personally and by proxy need to be in favour of the Motion in order for it to pass, and that’s determined by the lot unit entitlement of those voting / the aggregate unit entitlement of your Plan.
Clearly a vote of ≥25% against the Motion will see it lost, but IF ≥75% are in favour it passes, and provided the O/C is satisfied with the garden’s location in the context of the Plan’s overall landscaping, it then has two (2) options:
1) If the O/C’s prepared to meet the costs of establishing and maintaining the proposed new garden areas, then it should seek consent the works and the resultant expenditure by way of that Special Resolution.
2) If the O/C’s not prepared to meet the establishment and on-going maintenance costs of the proposed new garden areas, then it should seek a consent to the works on the basis that the owners of the townhouse pay its costs to establish the areas and to maintain those, again by way of that Special Resolution.
In order to better ratify any consent under opt. 2 and to enable the O/C to exercise some on-going control over the nature of garden plantings and the integration of the proper maintenance of the new areas with that involving other landscaping at the Plan, I’d suggest that the O/C’s consent includes a requirement for the creation and Registration of a Special By-Law (SBL) at the townhouse owner’s cost (that cost arrangement is customary).
That SBL could if needs be make provision for the current and future owners of the townhouse to make regular payments to the O/C to cover its cost of on-going maintenance, to account for the increased “value” of the townhouse due to improved amenity, usable areas etc, and if relevant a provision for those owners’ Exclusive Use of the areas (if they are in fact as you suggest, “taking over”).
27/04/2013 at 5:27 pm #18337Whales solution is totally correct but very bureaucratic and strictly by the book.
I’d be more inclined to grant them permission by a simple majority so long as the garden is appropriate to the complex and maintained by the lot owner at no cost to the Strata. Also be very clear about the area involved so that it doesn’t grow over time and a desc of what they plan to do.
Also the EC reserves the right to ask the owner to return it to it’s original state if the result doesn’t comply with what was described by the owner at the time of the request.
On virtually no circumstances would I consider granting them an Exclusive Use Bylaw because once passed they are virtually impossible to revoke and the Strata looses the area for good to the lot owner.
28/04/2013 at 9:20 am #18344To HarbourView and my northern oz mate ……one of the things I’ve learnt about Strata is that owners’ goodwill rarely transfers with the title to their property. So call it bureaucratic if you like, but in my experience when you’re dealing with Strata matters there’s the legally correct way or no way at all.
In that context, in NSW changes / alterations to Common Property by an owner or by the O/C itself must be resolved by a Special Resolution, and in the absence of a complementary Special By-Law (excluding exclusive use if preferred) owners cannot be required to maintain Common Property.
Unless HarbourView’s O/C specially resolves to undertake and maintain the proposed works (my option 1), then any expedient or less bureaucratic approach relies on goodwill and may suffer the possible risks.
28/04/2013 at 11:11 am #18346I couldn’t agree with Whale more. There are so many loopholes in Strata law, and the CTTT can be so inconsistent in its rulings that you really can’t be too careful. Imagine that your gentleman’s agreement with the existing owner isn’t honoured by the next person who takes possession of the unit. Suddenly the Owners Corp could be faced with keeping up a garden that is to all intents and purposes a private facility, or paying to restore the area to its previous condition.
It may be bureaucratic but it isn’t excessively so -it’s just the system and, bearing in mind that we live in a ‘me first’ world, it simply makes common sense to dot all the Is and cross all the TsThe 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.
28/04/2013 at 7:10 pm #18352Strata laws regarding this are very similar in QLD to NSW and when I moved into my complex at the first AGM we voted to allow owners to look after the gardens (common property) at the front of their units if they wanted to.
After 13 years the system is still in place, and about 50% do and the rest is taken care of by the gardener. Mainly owner/occupiers do their own and the tenants have the gardener looks after them.
We have had a number of different owners and if a new owner neglects the garden the gardener does it. Works for us.
29/04/2013 at 12:20 pm #18356Thank you to everyone who has replied. You have certainly given me lots of things to consider and shown me an ordered way to approach this issue. I think I prefer the bureaucratic approach as major works have been done in the past by owners, with permission, but not by special resolution or bylaws. After 20 years there are only a few of us who remember what happened or why and new owners make assumptions that are incorrect. I could certainly see that happening in this case if we did not make a special by-law.
The owners are new to strata and I feel struggling to understand after selling their family home and being able to do what they liked there. They are involved with the EC but only raised this after the AGM notice had been sent and so it appeared in an ammended notice. In their request they do make the comment that both gardens would only benefit their unit.
02/05/2013 at 10:23 am #18377@HarbourView said:
I think I prefer the bureaucratic approach as major works have been done in the past by owners, with permission, but not by special resolution or bylaws. After 20 years there are only a few of us who remember what happened or why and new owners make assumptions that are incorrect.I stand by my previous comments.
If you create a bylaw granting permission you would have to be very careful about the wording as a bylaw is permanent change and passes on to new owners of the lot when sold. A bylaw can be cancelled but only with a 75% vote of the OC (not sure if the recipient has to agree as well (as in the case of a Exclusive use bylaw)).
Also with a bylaw after a number of years maybe the owners does thing you don’t agree with and he tells you he has a bylaw authorizing this, you would then have to go to CTTT to obtain a ruling and as I keep hearing the CTTT decision are a lottery and having a bylaw would significantly increase his chances of winning (even if it didn’t specifily grant exclusive use)
With a simple motion granting permission, this could be withdrawn at any time (if unhappy with whats being done) with simple majority and tell the owner to restore area to original condition. If he goes to CTTT he has no bylaw to explain his actions and any motion he produces as proof of his action is only valid so long as it’s not revoked by the EC.
Also if you say major alteration have already been done on just a motion, and you have let it go what are the chances of obtaining a successful ruling if you apply different rules to different owners without good reasons.
03/05/2013 at 5:16 pm #18382K.P. – I too noticed HarbourView’s earlier mention of the townhouse owners already being granted approval (by the O/C) to install a door in an external wall (of the Lot?), and as post #7 states that’s been done “with permission, but not by special resolution or bylaws” it also needs to be rolled-into a Motion for the O/C to consider legally consenting to that as well as the proposed garden area by way of a Special Resolution (SR).
As I mentioned before, a Special By-Law (consequent to a SR) is legally required in NSW only where, in addition to its consent to any changes or additions by an owner of a Lot, the O/C wishes to make that owner and subsequent owners of that Lot responsible for the on-going maintenance, repair, and replacement of those consented changes or additions, and entirely at its discretion to also grant that owner exclusive use privileges.
A Special By-Law (SBL) can stipulate how the consented works may be used, how they must be maintained (with costs reimbursed to the O/C if it has that done concurrently with grounds), and in fact anything else that the O/C regards as relevant….. but without it the O/C is responsible for all on-going maintenance etc by default.
A SBL can be rescinded or amended by way of a Special Resolution, and only if it incorporates an exclusive use privilege does the beneficiary (of that privilege) need to consent; otherwise as you’ve advised the privilege is perpetual.
So as you might guess ever the bureaucrat, I’m standing by my previous comments also; I only hope that this final post by me on the topic assists rather than confuses HarbourView.
I cant’t help wondering where HarbourView’s Strata Manager is in all this, and how many more significant issues they’ve let pass?
04/05/2013 at 1:50 pm #18386Once again thank you to all who have replied. A little confused but you are all helping me to get a better grasp on what outcome I would like to see. I am not anti garden, in fact the block has extensive well maintained gardens.
As to the Strata Manager, they appear to have been less forceful than I would have liked and quite happy with an informal approach to the running of the OC. It is basically a harmonious block but I would like a bit more structure as the current one has the potential for owners to do their own thing. Allowing the window in the side wall to be replaced with a door has meant that they now would like to create a garden. A next step could be a paved area etc etc and really only to benefit one owner. I guess if I took my blanket and had a picnic outside their side door they would be highly unimpressed!
04/05/2013 at 6:19 pm #18387Apologies for any confusion you may feel or have felt – there are differing opinions on these things but you could do a lot worse than just follow Whale’s advice in its entirety.
The whole business of laissez-faire and non-bureauicratic responses is all very well … until someone pulls out the rule book, the by-laws and strata law and starts demanding payment from the Owners Corp to repair work that shouldn’t have been done in the first place (THIS posting, just in today, is a perfect example of why you would want to avoid that).
The smart thing to do now, apart from this specific issue, would be to have an audit of all work done ‘on the nod’ and get formal agreements in place as soon as possible The people who turned a window into a door should have had a by-law in place that ensures they are responsible for repairs and maintenance. Their subsequent request to annex the land outside for a garden should come with an offer of payment based on any enhancement that makes to the value of their property (which would be considerable).
If the strata manager isn’t up to the task, then a strata lawyer will draw up the required paperwork at the garden annexing lot owner’s expense. Anything less should be rejected.
Bad practice in the past is not an acceptable reason for lax procedure now. We are all learning about strata as we go and everyone has to accept that we have to do the right thing, even if we’ve done the wrong thing in the past.
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.
04/05/2013 at 6:50 pm #18388I am reluctant to jump on any contributor’s opinion but there are times when allowing people to express their thoughts means that wrong and misleading information is being sent out.
So let me make this clear – if you are talking about lot owners asking for exclusive use of common property for whatever reason, then the ONLY way to do that legally is by the creation of a special resolution by-law.
It might be easier to just pass a motion a general meeting but that approval has no standing in strata law in NSW and can only lead to problems down the line. I will express my reasons for this below (and I have included the relevant sections of the law) but after that, this matter is CLOSED. I am stating FACTS here – not the way things should be but how they are.
@kiwipaul said:
If you create a bylaw granting permission you would have to be very careful about the wording as a bylaw is permanent change and passes on to new owners of the lot when sold. A bylaw can be cancelled but only with a 75% vote of the OC (not sure if the recipient has to agree as well (as in the case of a Exclusive use bylaw)).You’d have to be a bit dim to have a by-law that wasn’t properly worded – you get a strata lawyer to write it and the lot owner who is seeking exclusive use pays for it (and the cost of the meetiong held to approve it).
And no, the special resolution by-law can’t be rescinded without the approval of the lot owner – it’s their protection against the Owner’s Corp changing their mind and withdrawing permission for something that has cost them time and money to establish.
Also with a bylaw after a number of years maybe the owners does thing you don’t agree with and he tells you he has a bylaw authorizing this, you would then have to go to CTTT to obtain a ruling and as I keep hearing the CTTT decision are a lottery and having a bylaw would significantly increase his chances of winning (even if it didn’t specifily grant exclusive use)
The by-law will only give permission to do something specific – if the owner did something different then they would still be in breach. An exclusive use by-law is not a carte blanche. It has its own set of parameters specific to the work being done. I think you are much more likely to have problems with something that has no firm legal basis, such as a simple approval that can be withdrawn.
With a simple motion granting permission, this could be withdrawn at any time (if unhappy with whats being done) with simple majority and tell the owner to restore area to original condition. If he goes to CTTT he has no bylaw to explain his actions and any motion he produces as proof of his action is only valid so long as it’s not revoked by the EC.
The lot owner –
a) needs to compensate the Owners Corp for any use of common property
b) they need to be locked into a maintain and repair contract for any future issues that might arise, and
c) they need to to have certainty when they are selling their property that they had the right to do what they have done. A simple vote of approval will not provide this.
Also if you say major alteration have already been done on just a motion, and you have let it go what are the chances of obtaining a successful ruling if you apply different rules to different owners without good reasons.
There is no logical basis for this assertion. Owners corporations and executive committees, especially, change all the time. If you go to the CTTT and say things have been done incorrectly in the past but we are doing the right thing now, you would expect them to follow the law and if they didn’t you could appeal to your district court on exactly that basis – the law, not opinion.
This is what the law says – the Owners Corp can make or allow changes and can give owners permission to use common property But it MUST be by a special resolution …
65A Owners corporation may make or authorise changes to common property
(1) For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
(a) add to the common property,
(b) alter the common property,
(c) erect a new structure on the common property.
(2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
(4) A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:
(a) the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and
(b) the owners corporation makes such a by-law.
(5) A by-law made for the purposes of this section:
(a) may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation, and
(b) must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.
(6) The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies.
65B Owners corporation may grant licence to use common property
(1) An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.
(2) A licence may be granted subject to terms and conditions.
Note. Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.
Please, no more debate on the right and wrong way to do this. The law could not be more clear.
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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