Mugged again!

Your first action should be to confirm that the works actually were done without the consent of the Owners Corporation, and that there’s nothing documented about the responsibility for the costs of on-going and repairs and maintenance of those areas.

If as you suspect the works weren’t consented, despite the fact that the 7 Owners concerned have therefore breached Sect 65A of the NSW Strata Schemes Management Act, I’m afraid that as the illegal works involved were to Common Property, it’s the Owners Corporation’s (O/C) responsibility to rectify the situation to the extent necessary to now return that Common Property to its as-built state whilst concurrently ensuring compliance with Fire Control Requirements.

In my opinion matters such as this are best managed by a united approach by you and as many of the other 29 Owners that you can convince to become actively involved in the upcoming General Meeting, and by letting your Committee Members know that you want the matters more widely discussed, and properly resolved by all Owners (i.e. the Owners Corporation).

Before you do anything else, you need to write to the Secretary of your Executive Committee seeking confirmation that the works by those 7 Owners was not then consented by the Owners Corporation in accordance with Sect 65A of the Act, and that unless the currently approved budget for your Plan has an allocation for an item that could come under the umbrella of “consultants” activities, then it should have been approved by the Owners Corporation at the General Meeting and not by the Members of the Executive Committee.

Concurrently advise that you will be submitting Motions (unspecified) for the Agenda of the General Meeting, and ascertain the final date for those Motions to be submitted.

Then whilst (hopefully) you have the Committee Members’ attention, quickly draft something that’s at least in content similar to the following, and use them to obtain feedback and to elicit support by way of personal attendance at the General Meeting or by proxies in your favour from as many of the other 29 Owners as you can:

THAT information on the matter of activities on Common Property by consultants, its purpose, the process of its approval, expenditure to date, any further expenditure anticipated, and whatever reports it generated be provided with the Agenda and that a process for notifying and approving such expenditures be resolved.

Depending upon your Secretary’s response and the degree of commitment by the other 29 Owners, you and the others may want to use this to at least get the facts on the table, to possibly sanction the Committee, to get a better process in place, and to possibly “shift” some of the consultant’s costs to those Owners who stand to benefit most from their activities (see item 2 below). Then…….

THAT as all changes to the Common Property of the Plan involving Lots ******* which have made those areas non-compliant with relevant Fire Control requirements, where one is the subject of an Order by ******, were undertaken on the Common Property by the then Owners of those Lots without the required consent of the Owners Corporation and therefore in breach of Sect 65A of the NSW Strata Schemes Management Act (1996), that:

1. The Owners Corporation complies with its obligation to undertake at its cost all works necessary to return the affected areas to their original state, incorporating anything further  that’s now specifically required to meet Fire Control requirements; and
2. The Owners of Lots ******* will reimburse to the Owners Corporation the costs for any and all additional components of those works including for (those palatable) design costs that are required by them for any reasons, including to maintain or improve the amenity of their respective Lots; and
3. That once completed, the on-going maintenance, repair, and replacement of any additional components of the works will be the responsibility from time-to-time of the Owners of the respective Lots.

This isn’t a shock-and-awe approach, but you and the others could use it to ensure that the O/C completes only those works that it’s required to by restoring its Common Property to its as-built state after allowing for anything additional now required under today’s Fire Control Standards, by ensuring that the 7 Owners pay for whatever’s additionally required by them to make the restoration works “palatable”, and that they pay for the on-going maintenance etc of those works that they want (but aren’t required).

Once you have sufficient support, or even if you don’t, then submit your Motions in final form to the Secretary in time for its inclusion on the Agenda and keep up the good fight! 

I don’t know about insightful, but I was trying to suggest a simple and hopefully acceptable (to both sides) approach to a situation that’s actually quite complex.

To elaborate just a little, in the absence of a Special Resolution of the O/C that removes its responsibility to maintain the affected sections of its Common Property or a Registered Special By-Law that subsequent to the O/C’s consent to works of the types involved can transfer that responsibility to the respective Owners, under Sect 62 of the SCMA the O/C has an unfettered responsibility to “…properly maintain and keep in a state of good and serviceable repair the common property..”.

Other complications that I didn’t mention in my original reply include whether or not the O/C could have been reasonably aware that the works were being undertaken and therefore could/should have intervened, if any of the current Owners are the ones who actually undertook the works and would therefore be absolutely aware, whether the living space of the affected Units could have increased their “value” and therefore their units of entitlement (and levies paid), and if the enclosed balcony areas to which you referred were also the subject of un-consented changes to Common Property.

On that last matter, it’s the Strata Title Plan that determines the boundaries of the Common Property not peoples’ “suggestions”, so unless that Plan’s been amended after a re-survey and re-valuation of the Lots, then what was originally registered stands.

As was recently commented in FlatChat, nothing’s out-of-bounds in Strata until somebody complains, so depending upon the relevance of those items mentioned above, there’s absolutely no reason for you and other like-minded Owners not to adopt a shock and awe approach by amending item 2 of my draft Motion to the extent that the O/C will undertake and meet the cost of the works now required to return its Common Property to its as-built / compliant state, and that the 7 Owners will reimburse all those costs.

I guess it all comes down to the cost of the works, and how hard you and the other Owners want to push.

I’m not as nice (or reasonable) as Whale.  Having just come out of a three year long legal dispute with an owner re illegal works (which we won), I don’t have any patience left.

No it’s not fair.  The OC should not have to bear the responsibility for non-compliant work undertaken without its approval.  If approval had been sought, it would only have been granted on the condition that the owners agreed to exclusive use by-laws making them responsible for the works, and that the works were compliant with regulations.

Assuming some or all of the current owners are those who undertook the illegal works, and you have enough owners whom you can persuade to do something about it, you could advise the relevant owners that you will have to consider lodging an application with the Tribunal to reinstate the common property to its original form.  In any application you could also seek an alternative order that the relevant owners agree to exclusive use by-laws making them responsible for the illegal works, and that the lot entitlements be adjusted to take account of any change of use/value.

If there are any lots that are not owned by the persons who undertook the works, then one option would be for the OC to reinstate the properties to their original form.

If it were me, I would be tempted to make an application in my own right, if I couldn’t get enough owners to agree.  But that’s just me.  Whatever you do, I would recommend you seek legal advice.