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An owner wants to install a skylight in his kitchen. What is the process of him making the request to the other owners? How is a by-law created? Who pays? How many approvals from the other owners does he need?Anything else we need to know?
Thank you
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The owner of the unit needs permission before he can change common property (roof, loft space, ceiling) and the Owners Corporation needs a guarantee that he will maintain the skylight at his own expense. That requires a special resolution by-law which lays all this stuff out. For a special resolution by-law, he will need 75 percent of the owners to agree to this at a general meeting (it’s actually no more than 25 percent voting against and Unit Entitlements may come into play, but basically he needs six of the eight owners to agree).
Why does he have to pay for the drafting of the by-law (and calling the meeting)? Because he is the only person benefitting from this so why would anyone else vote in favour if it’s going to cost them money?
Why would the OC go to all this trouble? Because if you don’t the law quite clearly states that the skylight would become your responsibility if you don’t make it clear in a special resolution that it’s his.
And the other thing you need to know is that you should insist that he uses (and pays for) a specialist strata lawyer to draft the by-law. He can either use a lawyer of your choosing or pay for your lawyer to review his lawyer’s by-law but that would be a condition I would place on even considering the idea.
Why do you need a lawyer? Because they will tell you the important stuff like the correct section of the Act under which to create the bylaw (as Simone from Teys does below) which is different from the one that governs changes to common property.
By the way, if the owner just goes ahead and installs it, you can take him to the CTTT (and possibly to court) to force him to reinstate the roof to its original state.
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.
Hi Roslyn
Note that a by-law cannot be made under s.65A of the Strata Schemes Management Act (the Act) and must be made under either s.47 (an owners corporation general by-law) or s.52 (a by-law conferring certain rights or privileges to lot owners) of the Act.
We have prepared an information sheet on the process for passing a by-law. If you would like a copy of our information sheet, please email us.
Kind regards,
Simone Balsara
Lawyer
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TEYS Lawyers
The Strata Law Experts
02 9562 6500The discussion here is centred on an owner wanting a by law in his favour.
But what happens if an owner does not want a by law for special or exclusive use of common property and the OC wants to force maintenace repair and upkeep costs onto that owner?
Can the EC or OC pass a by law conferring exclusive use of a part of common property on that owner without the written agreement and approval of that owner?
An Owners Corporation may, pursuant to a special resolution, change the bylaws pursuant to the following provisions:
Simone makes reference to s52 which states:
An Owners Corporation may, pursuant to a special resolution, change the bylaws pursuant to the following provisions:
s51, s52 Strata Schemes Management Act 1996: made with the consent in writing of the proprietor (the consent does not have to be furnished) and by special resolution where the initial period has expired. It confers on the registered proprietor rights of exclusive use and enjoyment of, or special privileges in respect of, common property, or by special resolution amends, adds to, or repeals any by-law previously made under this sub-section.
This section refers to the ‘Proprietor’ – is that an owner – are they the same thing?
Please don’t use this in any print articles and protect identifiers.
Shop Owner said:
The discussion here is centred on an owner wanting a by law in his favour.
But what happens if an owner does not want a by law for special or exclusive use of common property and the OC wants to force maintenace repair and upkeep costs onto that owner?
The OC would be exceptionally dim to allow changes to common property without a properly constituted by-law that shifted responsibility for its upkeep to the owner who was benefitting from the change.
Can the EC or OC pass a by law conferring exclusive use of a part of common property on that owner without the written agreement and approval of that owner?
No they can't – but then, without the owner's approval, they simply wouldn't (and shouldn't ) give permission for the changes.
This section refers to the 'Proprietor' – is that an owner – are they the same thing?
Yes
Please don't use this in any print articles and protect identifiers.
We do our best not to identify correspondents. It's a shame that you want free advice that no one else should get to read. Maybe you should talk to a lawyer next time.
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.
Dear Jimmy T
Thanks so much for your answer.
I have rung Fair Traidng 4 times and had a different opinion everytime. They always promsie to get back to me but never do. It is all very confusing and of course the EC have the property manager to assist and advise them.
Your forum was recommended to me. Congratulations on a forum site that is doing great work. I now know that TEYS Lawyers are there if this gets to the legal stage.
If you think others would benefit from the above discussion – please feel free to release it.
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