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25/10/2017 at 10:09 pm #11418
I understand under Section 109 of the SSMA, I should be allowed to paint the internal walls of my courtyard in the colours of my choice without seeking the approval of the OC because it is a COSMETIC renovation. The OC, however, has objected on the grounds that I am changing the external appearance of the building. The only references I can find to things that might change the external appearance of the building are all structural and not cosmetic. Who is right?
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25/10/2017 at 10:23 pm #28484
BTW the internal walls of my courtyard are not visible from the street.
26/10/2017 at 12:14 am #28485zorro – This issue depends upon how strictly your OC applies the “appearance of a Lot” by-law.
In QLD (my home state) the Tribunals have generally determined that unless there is a condition in the “Appearance of a Lot” by-law that specifically calls for “strict uniformity” then minor appearance differences should not cause a problem.
At all times the OC must act reasonably in their decision making. There could be an argument that the OC are being unreasonable under the circumstances that you have described.
If your colour choice is sensible and not unreasonably offensive then if I was you I would undertake the painting and see what happens i.e. just do it.
26/10/2017 at 8:07 am #28490The courtyard walls might not be visible from the street but are they visible from other units or areas of common property? If so, depending on the style of the units, it may or may not be reasonable for the OC to maintain uniformity.
Where I am, one unit has painted the internal face of courtyard walls, which are an extension of the townhouse walls. The particular brick appearance of those walls is one of the distinctive architectural features and I would not approve painting those walls.
Another resident wanted to cover their equivalent walls with timber panelling, and that was not approved.
Neither of the above examples are ‘visible from the street’ but they are visible from garden areas of common property used by other residents.
26/10/2017 at 9:48 am #28493@zorro said:
The only references I can find to things that might change the external appearance of the building are all structural and not cosmetic.Section 106 (3) (b) refers to changes that “detract from the appearance of any property in the strata scheme.”
Admittedly, this is in a section about the the OC deciding not to effect repairs but it does show that the appearance of the building is a consideration under strata law. There may be others but that’s the one with which I am most familiar.
The appearance of the building is referred to twice in the model by-laws, specifically, No 12 (below). That said, maybe your by-laws are different. have you checked?
Until you do, I would not, for once, follow Lady P’s advice to “just do it” as, if there is a legitimate restriction, you may find yourself hit with another bill to “unpaint” the walls.
12 Appearance of lot(1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.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.
26/10/2017 at 10:17 am #28495Thanks for the responses so far. Here’s a further hypothetical: would it make a difference if the colours of the internal courtyard walls are different to the colour of the facade of the building BUT the existing colours have been there for 10 years and no-one has objected until now? The current colours actually precede the changing of the colour of the facade and the OC did not insist on uniformity 8 years ago when they repainted the facade. Surely the length of time must count as tacit acceptance of these colours. Therefore, I would argue that the OC is being unreasonable in now demanding that the colours conform to the facade of the building.
26/10/2017 at 11:15 am #28497I have now taken legal advice on this matter. Here it is:
The external walls are part of the building, and therefore are common property owned by the owners corporation. The Strata Law permits the walls to be touched.
The Strata Law permits cosmetic renovations. In particular, section 109 of the Strata Schemes Management Act 2015 permits cosmetic work, which is defined to include painting (Section 109(2)(c)).
SECTION 109 COSMETIC WORK BY OWNERS
(1) The owner of a lot in a strata scheme may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation.Note: the only limitations are as set out in Section 109(3):
(3) An owner of a lot must ensure that:
(a) any damage caused to any part of the common property by the carrying out of cosmetic work by or on behalf of the owner is repaired, and
(b) the cosmetic work and any repairs are carried out in a competent and proper manner.Note: There is no limitation on colour or on what surfaces are to be painted or how the surfaces are to be painted.
Turning to the By-Law, I assume that it is along the lines of Standard By-Law 12 –
12 Appearance of lot
(1) The owner or occupier of a lot must not, without the prior written approval of the owners corporation, maintain within the lot anything visible from outside the lot that, viewed from outside the lot, is not in keeping with the rest of the building.
(2) This by-law does not apply to the hanging of any clothing, towel, bedding or other article of a similar type in accordance with by-law 14.That by-law does not apply to painting. It applies to window coverings and applications, signs, etc.
Even if it did apply to internal painting, or if your strata scheme’s by-law applied to internal painting, it would be invalid because it conflicts with the owner’s rights under section 109.
26/10/2017 at 1:39 pm #28498Your “legal advice” is highly selective and skewed towards what you want to do. Just as the sections you have quoted don’t mention paint, the other sections don’t specifically mention screen or shutters.
However if you are depending on section 109 you might want to read down to 5(c) which says “This section does not apply to the following work: work that changes the external appearance of a lot …”
I think that says everything. You might be better spending your money on a challenge to the OC ruling at NCAT than wasting it on paint that will have to be scrubbed off after a long and bitter dispute during which you manage to get most of your neighbours offside.
Maybe you should ask the person who gave you the legal advice if they will guarantee that you won’t be ordered by NCAT to restore the walls to their previous condition.
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.
26/10/2017 at 1:45 pm #28499@zorro said:
The current colours actually precede the changing of the colour of the facade and the OC did not insist on uniformity 8 years ago when they repainted the facade. Surely the length of time must count as tacit acceptance of these colours.The passage of time does not make a bad decision a good one. There are plenty of examples in strata where bad decisions (or lack of any decisions) are rectified at the first reasonable opportunity.
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.
26/10/2017 at 1:47 pm #28500Thanks Jimmy. I am not worried about wasting $ on paint because the OC have agreed not to paint my walls until the matter is decided at NCAT. You might also be interested in my further advice:
1. Painting is a non-invasive cosmetic work.
2. The painting in question was carried out 10 years ago, by the previous owner.
3. This is not a request for re-painting the walls.
4. The re-painting is necessitated by the rectification works the owners corporation is carrying out.
5. My preference is that the walls to my lot be repainted as part of the rectification works in the same colours as they are now painted.
6. There is to be no change in the current external appearance of my lot because the same colour is used.
7. For these reasons no consent is required is required from the owners corporation to keep the walls of the same colour.
26/10/2017 at 3:02 pm #28502@zorro said:
6. There is to be no change in the current external appearance of my lot because the same colour is used.
7. For these reasons no consent is required is required from the owners corporation to keep the walls of the same colour.There is a fairly substantial leap of logic between items 6 and 7. For instance, if this was the first opportunity the OC had to remedy a situation that was created some years ago, 7 does not follow from 6.
But, yes, take it to NCAT if you feel it merits that level of attention. I’m just glad that you aren’t going ahead with this based on interpretations based on a few grey areas of strata law.
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.
26/10/2017 at 3:13 pm #28503Interesting point, JimmyT. This is not the first opportunity for the OC to correctly/incorrectly to assert its current approach. After the building was painted its present colour, the OC paid to re-waterproof the garden bed of our courtyard. The OC then paid for the previous owner to repaint the affected courtyard wall in the colour of her choice. That colour remains today.
30/10/2017 at 7:17 am #28546Section 109 5c: “work that changes the external appearance of a lot, including
the installation of an external access ramp”
So, it comes down to the meaning of “external”
Oxford dictionary: (external) belonging to or forming the outer surface of something
So, we are talking about the appearance of the outer surface of my lot.
i.e. the appearance of the external walls of my lot (the walls that face the laneway and my neighbour), not the internal walls of my lot.
31/10/2017 at 12:22 am #28554Again you are using selective interpretations of the law and language (so much so that my software flagged this post as spam).
If you aren’t happy with the OC’s interpretation of your situation, take them to NCAT for a ruling. Then you can get on with enjoying your lot, regardless of the colour scheme.
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.
31/10/2017 at 6:17 am #28555Yes, I agree, I will take it to NCAT for a ruling. The phrase “external appearance of a lot” needs more clarity. Anyway, thanks for your warm and engaging responses to my posts. I hope other members of your forum may have gained an insight into the complexity of this issue.
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