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Topic
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Our upstairs neighbours have used the excuse of the roof needing fixed to reshape the roof and build apartments into the attic space without OC’s approval. They have charged the OC for waterproofing, added unapproved doors and windows and refused to take responsibility for the changes to common property or compensate the OC for the common areas they took. The OC took the matter to NCAT.
The Member proceeded to rule a lot of our claims technically “out of time” because of unavoidable delays in filing the claims. Even so the Member indicated that actions of the upstairs neighbours was a long way outside what is permitted by the law. The Member also acknowledged that the works had significantly changed the appearance of the building.
Even with that assessment, the Member did not order the works to be removed and said NCAT cannot compel the owners who did the works to sign a common property by-law. Instead, the owners who did the works have been ordered to come up with a common property by-law which we must not unreasonably refuse.
The law says that a common property by-law can only be made with the approval of all parties concerned. The OC proposed a by-law that would have made the owners who did the works responsible for the works. The owners who did the works changed that proposed by-law so that they had no responsibility for the changes to common property they made, putting that responsibility back on the OC. They have also removed any reference to compensation for the common property space taken and for repayment of costs incurred by them but charged to the OC.
Neither by-law can be passed as the OC should be made responsible for works undertaken by the upstairs neighbours without consent and the upstairs neighbours will block any proposed by-law that makes them responsible for the work they did.
We are appealing the case at NCAT as we believe more effective orders should have been made against the owners who did the works.
Firstly, does the ruling mean that lot owners can do what they want in altering common property and if they do it without approval they will not be made to put it back the way it was?
Secondly, would it be “reasonable” of us to reject any common property by-law that doesn’t include both making the lot owners who did the work to common property responsible for that work, and compensation for taking common property space?
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I know the Tribunal can be unpredictable but it is difficult to believe that a Tribunal member would rule against you in the way described. As a preliminary, it’s not clear how a claim could be out of time, if an owner appropriates common property, there is no time limit. Technically the common property belongs to the owners corporation, so how could a claim be out of time? To be clear, this is not legal advice.
What do you mean the neighbours charged the OC for waterproofing? If the OC believed it was not responsible for works why would they pay for it?
If the upstairs neighbours carried out such extensive works including adding doors and windows and presumably making a non-habitable space into a habitable space, you would expect Council approval to be necessary. Have you contacted your Council? Did the neighbours get approval? If they did, was the application for approval approved by the OC? If the Council was not involved I suggest you contact them as a matter of urgency.
In respect of your specific questions:
- no an owner cannot appropriate, take over or alter common property for their own use without the approval of the OC, and in the majority of cases compensating the OC. Property has a value. There have been numerous cases where an owner has been required to restore common property that they have altered or taken over for their own use.
- in my opinion it would be reasonable to reject an exclusive use by-law that didn’t make an owner responsible for the relevant works, and if applicable, pay compensation to the OC. You should be acting in the best interests of the OC as a whole, if an owner has taken something of value for their own use, then the by-law and other matters should reflect that.
I could be wrong but I have had a look and found a recent Tribunal decision with facts that are very similar to the case presented here – not the same but similar. It is a very complex case. If it is that case then there are a number of things that have been left out of the question, and the decision is different to that represented. For example the decision did not say the works were not to be removed, but a 12 month period has been set for consideration of a number of issues before any decision regarding possible removal can be made. Some of the works are subject to a Council stop order.
It may be that this is a different case, but if it is the same case I suggest it would be helpful to be more accurate in the representation of the issues.
In any event the answer to your two questions, as general principles, remains the same.
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