Shuttered out

Hi Tony

Compliance with architectural standards will nay get you so far i.e. the proposed shutters will be in keeping with look of the building. However, the issue is that, given the shutters must be attached to common property, you will require a by-law to be approved by special resolution at a general meeting giving you the privilege of use of this part of common property.

Section 52 of the SSMA states the following;

52   How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?

(1)  An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:

(a)  with the written consent of the owner or owners of the lot or lots concerned and, in the case of a strata leasehold scheme, the lessor of the scheme, and

(b)  in accordance with a special resolution.

 Part (a) above is the crux of the matter. The by law can be challenged (even if specially resolved and registered) if any affected owners do not give their written consent. An adjudicator is likely to deem that the neighbour is definitely a “concerned lot” given their view will be partially obscured as a result. 

I agree with most of that, but why would the exclusive use privilege be necessary?

Tony’s sun screen could in my opinion be consented under Sect 65A (c), where a Special By-Law would only be necessary if the Owners Corporation wished to, with Tony’s prior consent, formally shift the responsibility of maintaining the sun screen from itself to him?

As for a possible objection by the Owner of the neighbouring Lot, they would have an opportunity to do that at the General Meeting where Tony’s proposal must be discussed, voted upon, and consented by way of a special resolution (≥ 75% in favour by unit entitlement) if the erection of the sun screen is to proceed – as JGOWI advised the architect’s approved is not sufficient.

If the O/C did consent to the sun screen, and the neighbour was still aggrieved, then he/she could certainly seek to have the O/C’s special resolution invalidated under Sect 153 if the Adjudicator could be persuaded that the neighbour was adversely affected; but that would be the limit of their legal rights to object in my opinion.

Hi JimmyT,

Thanks so much to you and Whale for the detailed and thoughtful advice – new to apartment living so very much ‘a dolphin in the shark tank’ so to speak …the additional complication in this matter is that there is an overriding body that manages the entire estate – the Community Association Executive upon which my neighbour sits as an an executive member representing our SP.After 6 months of deliberations within my own SP – I had to then submit written plans and architect approvals to this body for approval before resubmitting it to my SP for a special resolution . For the past 3 months the CA has deferred my application claiming there are so called inconsistencies in their own architects interpretation of the standards and hence my matter has been deferred until they seek further legal advice. Hence as I understand it by not rejecting my application i am not entitled to commence any formal action e.g. mediation as a decision has not been made. Further my own SP has sought their own legal advice in reference to the rights of my neighbour to stop a majority vote where he realises he is a relatively lone voice within the complex.

I am considering commencing a community campaign across our Estate with leaflets – billboards etc informing them of the situation so as to apply some pressure to the CA in the unreasonableness of their position given the circumstances any thoughts ? 

Magic advice JimmyT – thank you so much I will action asap and keep the forum posted. PS : – This site is an invaluable resource and I will be a strong advocate for it in the future – Many thanks and Merry Christmas  

@Tony said:
2014 and the nonsense continues — copy of BCA exec minutes landed in my inbox over Christmas noting that they had conditionally approved my application for shutters on basis that quote — ” requires 100 per cent approval from all those affected” is this even legal ? Interestingly we have not been informed of this decision by our own SP exec , who had I understand sought their own legal advice . 

No I don’t belive this is legal UNLESS their is a bylaw requireing 100% approval (and I even doubt if this was property registered it would stand up as it conflicts with the act).

Take a look around your estate and see what alterations others have done and then check the bylaws for SR relevant to those alterations. Also check minutes of GM and EC meeting to see what others have been granted permission to do (especially this objector).

Strata have to apply the rules even handedly and so cannot deny one person permission whilst granting it to others (without a very good reason).

You can use these unapproved alterations in your case at CTTT to show the unreasonbleness of the objections. Also if a neighbour had to give approval for any building that affected their view the building industry would grind to a halt.

Sorry about that – CMS is the community association executive for the estate !

Tony, I know this is going to sound weird but i would find these latest moves encouraging.  Your EC is clearly trying to prevent a meeting from taking place so you have ask yourself why.  They are also giving you what I think is false information.  Again, why?

On the question of false information, I have never heard of this business of proxies only being valid after a meeting has been called and an agenda set. The official proxy form – which must be used – allows the proxy to be given for a period of time and a number of meetings.  How can it be used if the future meetings for which it is valid haven’t been called?  Have a look at the form – you can download it HERE.  You’ll see it doesn’t specify for which meeting(s) it’s valid.

Secondly, even if the meeting goes ahead and you are outvoted, that puts the EC and your neighbours’ cronies in a very tricky position.  Once they have rejected your application, you can go to NCAT (formerly the CTTT) and seek  an order under section 158 which says … 

(1) An Adjudicator may make an order prescribing the making … of a by-law if the Adjudicator finds:

(a) on application made by an owner, that the owners corporation has unreasonably refused to make a by-law of the kind referred to in section 51 …

(2) In considering whether to make an order under this section, an Adjudicator must have regard to:

(a) the interests of all owners in the use and enjoyment of their lots and common property, and

(b) the rights and reasonable expectations of any owner deriving or anticipating a benefit under a by-law of the kind referred to in section 51.

NB: Section 51 lays down the ground rules for creating exclusive use by-laws, including who will be responsible for the ongoing maintenance of common property affected by any work that is done.

OK, so what do you do next? 

If everything you’ve told us is true, my tactic would be to write a letter to all owners, along these lines:

How your EC could waste thousands of YOUR dollars to benefit one owner.

Dear neighbour,

I am an owner resident in Lot XX and I have been trying in vain to be allowed to install exactly the same window shutters as many of you already have.  I am prepared to use exactly the same design and colours as everyone else and I am prepared to undertake the maintenance and repair of the shutters and the common property to which they are attached, as required by strata law.

I want to do this to make my home more comfortable at those times when the sun would otherwise shine directly into it.  This is a simple facility that many of you already enjoy.

Unfortunately, my shutters would occasionally intrude to a minimal extent into the unobstructed view that a neighbour currently enjoys. The owner is a member of your Executive Committee which has delayed and reject my application at every turn.

The result, in a nutshell,  is that my family has to bake in the sunshine so that he can enjoy his view  completely unfettered.

In a few weeks, we will hold a general meeting at which I have been warned the owner already has gathered sufficient votes to reject the request again. He only needs 25 percent of people voting at the meeting in person or by proxy to reject the motion.

I need your proxy vote to make sure this doesn’t happen and to avoid the waste of thousands of dollars of your money.

If the meeting rejects what I truly believe is a fair and reasonable request, I have several avenues open to me to pursue this issue, all of which, unfortunately, will be at considerable cost to you, the owners of this building.  

If the by-law is rejected, I intend to pursue a Section 158 order at NCAT (formerly the CTTT) compelling the Owners Corporation to pass a by-law that is fair to me and to the majority of owners.  

If they defend it, your EC will have to spend an estimated $6,000 to $8,000 in strata manager and legal fees, preparing a submission which, I have been advised, has little chance of success. FYI, the maximum cost to me will be less than $160 as I already have all the documents I require to make a compelling case.

What we are looking at is an utter waste of your money and the EC and strata manager’s time trying to block a perfectly reasonable request that is to the minimal detriment of only one owner.  

The  alleged “intrusion” is only marginal, temporary and much less than many of you already seem able to cope with. And, as we are often told by planners and real estate professionals, nobody owns the view.

So I implore you to send me your proxy vote on the attached form.  If I have enough votes at the upcoming meeting we will be able to stop this nonsense now before it gets any uglier and more expensive.

I am happy to discuss this in detail with any of you and have detailed drawings and pictures to show how my plans fit in perfectly with the rest of the building and how they are only the slightest intrusion into my neighbours view. {Add contact details here}

Now, at this point I have to stress that I am not a lawyer and I obviously am not aware of all the minutiae surrounding this matter.  All I can say is if I were in your shoes and the facts were as presented here, this is what I would do.

Also, I don’t know your neighbours and how they would respond to the implied threat.  If they hate squabbling and resent being told what to do, the letter may be counter-productive.

On the other hand, in many buildings a lot of people are glad to get a chance to have a kick at the EC for past slights, real or imagined.  Only you can decide which way to go.

But go ahead with the meeting because it’s harder to argue that your application has been rejected if a general meeting hasn’t rejected it.

Best of luck.