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  • #61881
    Just Asking
    Flatchatter

    We are a small complex of 7 villas and townhouses in NSW. One of our owners has built a roof structure over a section of their courtyard. On one side this structure is above the gutter and lower rows of roof tiles, attached to top of the roof through the tiles. It extends to the boundary of the strata complex and the internal boundary with another owner. The underside is lined, and there is a large ceiling fan fitted.
    No approvals were sought or obtained from the owners corporation or the local municipal council.
    Should we ask this owner to obtain all necessary approvals etc at their expense now, or wait until it is time for them to sell?

    • This topic was modified 2 months, 1 week ago by .
Viewing 11 replies - 1 through 11 (of 11 total)
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  • #61897
    chesswood
    Flatchatter

    Have a look in your Strata Plan. It will show how far above ground your owner’s property extends – perhaps 3 metres. If any of the roof impinges on the common property which is above that level, its owner will need an exclusive-use bylaw.  Then tell the owners to get strata and council approval by the 30th of next month. If a by-law is needed, draft it and call a general meeting to consider it. Otherwise the roof comes down.

    #61892
    kaindub
    Flatchatter

    don’t wait .

    the first thing the OC should do is issue a notice to comply . Look at your bylaws but there will be one about damage to common property.

    The condition of the lot owner getting approval should br

    a) a bylaw for the addition

    b) approval by the council. Any such structure requires approval by council, irrespective thst the OC has approved.

    Hopefullythe owner plays along, but if the owner is reluctant you can take it all the way to NCAT.

    • This reply was modified 1 month, 3 weeks ago by .
    #61910
    Jimmy-T
    Keymaster

    don’t wait .

    Good advice.  If you wait until the owner sells, getting this changed by the new owner is a whole other legal quagmire.

    the first thing the OC should do is issue a notice to comply. Look at your bylaws but there will be one about damage to common property.

    I’m not sure it’s that simple.  The owners corp is entitled to decide:

    • whether or not it wants this change to the outward appearance of the scheme
    • who has responsibility for the upkeep of the new structure?
    • whether the owner is required to compensate the OC for any use of common property

    So the owner should be approached and asked to provide a by-law for the OC to consider, which would include the lot owner accepting responsibility for the structure, compensation for the OC (if appropriate) and agreement to cover all legal fees in setting up the by-law.

    In the meantime make two calls – one to an experienced strata lawyer, the other to the local council as this would almost certainly require council approval.

     

     

    #61912
    Jimmy-T
    Keymaster

    Have a look in your Strata Plan. It will show how far above ground your owner’s property extends – perhaps 3 metres.

    The strata plan will show how far the lot air space extends above the terrace. The lot owner should pay for the air space used above that.

    If a by-law is needed, draft it and call a general meeting to consider it. Otherwise the roof comes down.

    The lot owner should have the by-law drafted, then the OC can consider it at a general meeting (which the lot owner should also pay for).  This process should not cost the strata scheme a cent.

     

    • This reply was modified 2 months, 1 week ago by .
    #61984
    tina
    Flatchatter

    This structure sounds like a pergola. According to the State Environmental Planning Policy (Exempt and Complying Development Codes) 2008, your neighbour’s structure could be illegal in a couple of ways (above the roof gutter and reaching the lot boundary). I suggest contacting your local council as well as your strata manager with your concerns.

    See State Environmental Planning Policy (Exempt and Complying Development Codes) 2008 2.11 at

    https://legislation.nsw.gov.au/view/html/inforce/current/epi-2008-0572#pt.2-div.1-sdiv.6

    #62039
    Strata Choice
    Strataguru

    This is a great question. However, first things first – the Owners Corporation cannot make an informed decision on the renovations until all of the renovation documents are provided. These need to clearly outline what renovations have occurred, the location of same and the details for the contractor(s) who performed the works.

     It would be in the scheme’s best interest to request this information from the owner as soon as possible and not wait until the lot sells. You will want to obtain adequate approvals without delay.

     The Owners Corporation needs this information to address any unapproved works as a matter of priority. It also allows the Owners Corporation to determine the approvals required to formalise the work accurately. Then you can ensure that the responsibility of the ongoing maintenance, repair and replacement is clearly defined.

    Once this information is received, it becomes a balancing act ensuring the Owners Corporation holds their owners responsible for enhancements and any affected common property and taking a practical and pragmatic approach in noting that the works are complete and the owner has the right to upgrade their home.

    Generally speaking, the type of work undertaken to the townhouse would require the Owners Corporations approval at a General Meeting and the adoption of a by-law (via special resolution).

    This by-law would safeguard the Owners Corporation, outlining the works and delegating the responsibility for the ongoing repairs and replacements. The by-law would clearly outline any processes to address and remedy concerns/issues that may arise. Notably, the by-law should include provisions to address whether any approvals from Council are required, which can be determined once the full scope of work has been received.

    If the scheme does not already have a “template” by-law that owners can utilise, the Owners Corporation can, in this instance, request the owner to supply (at their cost) and engage the services of a strata specialist solicitor to prepare.

    Upon receipt of this by-law and supporting documentation, it becomes a matter for the Owners Corporation to determine at the meeting if the works are approved.

    #62129
    Just Asking
    Flatchatter
    Chat-starter

    Many thanks for all the helpful replies!

    Apart from the maintenance of the structure itself, as it has 6 points of attachment to the roof trusses through the roof tiles, there is a reasonable likelihood at some stage there will be a complaint from the lot owner about rainwater leaking into the ceiling inside the villa. I will check whether our by-laws have all issues adequately covered.

    One would guess a reasonably astute conveyancer would look for approval of the structure before completing any sale, but the owners corporation cannot rely on that happening.

    #62152
    Jimmy-T
    Keymaster

    However, first things first – the Owners Corporation cannot make an informed decision on the renovations until all of the renovation documents are provided. These need to clearly outline what renovations have occurred, the location of same and the details for the contractor(s) who performed the works.

    Just a thought – what do you do if the owner refuses to hand over the documentation?

    #62158
    kaindub
    Flatchatter

    Take the owner to NCAT under section 132.

    NCAT can then order the structure to be removed, but the astute owner would accede to the OC and be more compliant.

    #62159
    Just Asking
    Flatchatter
    Chat-starter

    It has crossed my mind that the necessary documentation does not exist, or only exists in parts, and would have to be created for the development application.

    The owner may well refuse to cooperate and the other owners may lack the appetite to force the issue. If and when it comes time to cross that bridge, then professional advice would be sought and hopefully upon presentation of that advice the miscreant owner would decide how much they want to keep the structure.

    With any luck, the Council may be interested and its compliance department does the dirty work for us.

    #62177
    Jimmy-T
    Keymaster

    Take the owner to NCAT under section 132.  NCAT can then order the structure to be removed, but the astute owner would accede to the OC and be more compliant.

    Yes.  Section 132 relates to orders where an owner has done work that has damaged common property.

    Explain what happens if they don’t cooperate as well as the probability that they will have costs awarded against them if they are obstructive (as has just happened in the case about Acacia Gardens).

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