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If an owner states that modifications they did to common property in the distant past, say 15 years go, was approved by the OC I would hope to see that approval by special resolution in the minutes of meetings. In this case no bylaw change has been registered.
How long is the OC required to retain a copy of the minutes of meetings?
If no minutes of the meeting can be provided for the period the work is done by either the OC or the owner, assuming minutes on go back a few years, I’m unsure what situation we are in.
Are the common property changes assumed to be not approved? Or because the OC has failed (?) to keep the minutes does the owner get the benefit of the doubt and changes are assumed to be approved.
I assume the former but would love to hear from the forum experts.
OC is NSW based.
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Section 104 of the Strata Schemes Management Act requires that the minutes be kept for at least five years, though I’d personally like to see them kept for the life of the strata scheme for reference purposes. We’ve discussed at some length the issue of modifications to common property in this forum. If an owner is granted permission to make changes to common property, unless a by-law is in existence or created to cover the situation, the responsibility for ongoing repair or maintenance of the altered property becomes that of the owners corporation. Where an owner makes changes without permission, that owner could be ordered to remove the unauthorised changes or if they are accepted then required to apply for a by-law. If changes are made and the OC takes no action, then it may be construed that tacit approval was given. Hope that helps in clarifying the situation for you.
TW – (my) logic suggests that the burden of proof is with the Owner who made the changes to the Common Property of the Owners Corporation, but would you mind providing some context to the situation?
One solution to unapproved alterations which end up being asked to be repaired by the Strata is for the strata to check the plans and restore the roof to it’s original size and remove and extension.
The new owner should only be allowed to repair (as opposed to the Strata removing it) the extension IF they get a SBL passed accepting the responsibility for the extension.
If they repair it without an SBL then the work they have done is illegal and they can be asked to remove it at their cost (because they are now the owner who made the change as opposed to inheriting it).
TW – thanks for that additional detail.
I wouldn’t go in as hard as KWP, but I agree that it’s a bit of a conundrum particularly as the Owner concerned has not requested the O/C to make repairs to the roof; perhaps because they know that’s their responsibility (?).
I remain of the opinion that the burden of proof is with the Owner, but so far as the potential sale of the affected Lot is concerned, I’d suggest that in the first instance your O/C discusses the matter with that Owner; who knows, they may accept responsibility for or come to some agreement about the roof.
If that’s not forthcoming, then your O/C should wait until the a sale is advertised and then advise the selling Agent in writing that it “has no records of the extended roof above the courtyard ever receiving consent in accordance with Sect 65A of the NSW Strata Schemes Management Act (1996)”.
That form of advice is not stating that there is no consent, just that the O/C has no records in that regard, and provides the Owner a further opportunity to meet their burden of proof by providing anything that they have to the contrary, and concurrently puts the selling Agent on-notice to properly advise potential purchasers.
Then if as you predict, a new Owner of the affected Lot requests the O/C to repair the roof, at least there’ll be bargaining point to limit its liability for that and even to perhaps head some way down the path suggested by KWP – in circumstances where any Special By-Law to address the matter could not be retrospective without the prior written consent of the current Owner.
Here’s an interesting case that has come via our chums on the OCN. The current owner of a property that has illegal works done on it by a previous owner has been ordered to remove the unauthorised works (which were the subject of a council order) at his own expense. Or, at least, that’s what I think this says.
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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