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Hi everyone, I hope someone can answer this question.
At an EGM in October 2015 a resolution was made with the votes of the majority of the owners that a By-law relating to the installation of Air Conditioning be drafted and registered. The cost of the drafting of the By-law has been paid but the By-Law has not as yet been registered on title.
How soon must a by law be registered once it has been resolved to have one? Is there a breach of the act if the Owners Corporation fails to register the By-Law?
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A by-law needs to be registered within two years of it being approved. It doesn’t have any force/effect until it is lodged with the LPI. If it isn’t registered within the two years then you go back to square one – that is, it has to be approved again.
Registration costs extra.
There is no breach of the Act if it isn’t registered, but surely you would want to have the by-law registered.
It’s the owners corporation’s responsibility – you can’t register a by-law unless you are authorised by the OC. Write to them – both the strata manager and the EC and remind them that the by-law must be registered, and as it has been approved you request that it be registered without further delay so you can proceed.
An alternative is to advise them that you are proceeding with the air conditioner as the by-law has been approved by the owners corporation, then it is their problem!
Did you agree to pay the costs of registering the by-law? If so you will need to pay that. It is quite expensive if lawyers are used, i just do it myself.
Pamster said….. At an EGM in October 2015 a resolution was made with the votes of the majority of the owners that a By-law relating to the installation of Air Conditioning be drafted and registered.
I don’t wish to complicate the issue, but a “majority vote” isn’t good enough in this instance unless it’s at least a 75% majority as calculated from the collective units of entitlement (UOE) of those voting in favour of the by-law, and the aggregate UOE of all those voting at the Meeting (i.e. a “poll vote”).
In order to wrap this up, perhaps you can you clarify this issue together with the one raised by Scotty in the last post (#4) regarding payment for registering the by-law.
Unfortunately the Chairman was wrong – by my calculations 34% of the votes were against the by-law, so as a special resolution it wasn’t carried. As Whale points out you need at least 75% in favour, or technically less than 25% against. I missed that in your original question.
More generally, in the case of a by-law which is proposed by the OC/EC, then the costs are met by the OC including registration of the by-law.
So sorry you are back to square one – the by-law hasn’t been approved so no air conditioners.
Can I check one thing – your original question refers to a resolution to have a by-law drafted and registered. Was an actual by-law put to the meeting for approval, or was it just a proposal to have a by-law drafted?
@Pamster said:
I have discovered that the motion for the By-law was defeated at the EGM due to the fact that the unit entitlements counted as votes in favour of the By law were not sufficient be the 75% required to pass a special resolution.Just to be clear, a by-law doesn’t require 75 percent of the votes – just that no more than 25 percent of the votes cast are against it.
What’s the difference?
If there are 90 potential votes at the general meeting and 61 votes are in favour, 19 votes are against and 10 people abstain, the motion is carried because less than 25 percent of those voting — 19 out of 80 – voted against.
So if detailed records of who voted have been retained it’s worth checking. Also check if the votes cast were valid (the owners weren’t in arrears with their levies).
On the question of the air conditioning, in the absence of a by-law allowing a change to common property, the person with the air-con should be asked to remove it (assuming it is bolted to the slab and ducting passes through common property). This may require action at NCAT if they refuse.
The EC was right to try to formalise this situation in some way and there’s no issue with them drafting a by-law. But now that the by-law has failed, the air-con should go.
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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