Flat Chat Strata Forum Common Property Current Page

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  • #8915

    Our unit complex of 28 is most likely proceeding with replacements of our rotting wooden windows with new aluminium windows.

    Our strata scheme was established in 1971, which I believe means that because it is prior to 1974, the strata laws suggest that balcony doors and windows are the owner’s responsibility.

    Only about 10 units have balconies, including myself.

    Should the cost of the ‘common property’ window replacement be split due to ‘unit entitlement’ or split in regards to % of square metres required.

    My property has a large balcony window and doors and a small ‘common property’ bedroom window and I feel that using the ‘unit entitlement’ method does not represent a fair method as I would be subsidising smaller units with many common property windows.

    Anyone experienced similar issues or know of any solutions to this?

    Many thanks,

    James

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  • #18897
    Whale
    Flatchatter

      jamezb – you’re correct in that a 1974 change in applicable Legislation (in NSW) meant that in most instances any walls (and anything in them such as windows and doors) located between parts of a Lot, such as between a living area and a balcony, were part of the Lot and therefore the responsibility of the Owner.

      To be certain though, you must check the Strata Title Plan for your complex, because there were occasions where a notation was made on those Plans that created an exception to the norm.

      If the works proposed to replace the balcony doors are to be at cost to individual Lot Owners from their own funds and not from those in any account of the Owners Corporation (O/C) then those Owners can agree amongst themselves to any appropriate means to share that cost.

      The costs to replace Common Property windows (only) will be from the Sinking Fund.

      It seems to me that if ALL windows and doors are to be replaced concurrently and by the same contractor, then assuming adequate funds are available the O/C could resolve to meet all the costs from its Sinking Fund which is after all the collective funds of individual Owners, albeit raised on the basis of Unit Entitlement which you claim is inequitous. That would be the most sensible approach in my opinion.

       

      #18898
      Jimmy-T
      Keymaster

        I’m a bit confused.  If the by-laws say the windows aren’t common property and are the owners’ responsibility then there is no question of the cost of their repair being shared based on unit entitlements.

        If you are all having the windows fixed at the same time — which would save money – then you should insist that costs are shared on a price per window and per sliding door.  That would more accurately reflect the fair share based on actual ownership.

        The contractor will almost certainly have priced the job on this basis so it shouldn’t be too hard to get the figures.

         

        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.
        #18901
        Jimmy-T
        Keymaster

          @Whale said:
          jamezb – you’re correct in that a 1974 change in applicable Legislation (in NSW) meant that in most instances any walls (and anything in them such as windows and doors) located between parts of a Lot, such as between a living area and a balcony, were part of the Lot and therefore the responsibility of the Owner.

           

          I thought it was the other way round – that windows and balcony doors ceased to be the property of the owner and became common property, as they are now.

          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.
          #18902
          kiwipaul
          Flatchatter

            Surely if you are going to spend Strata funds on repairing lot property (windows within a balcony) then you are going to require a no dissent vote to be able to use these funds for a purpose for which they weren’t authorized (otherwise any lot owner could go to CTTT and win a case of misuse of Strata funds).

            Also the ongoing maintenance would then fall on the Strata as the strata paid for and installed the windows, and so you would need a bylaw clarifying this issue.

            I feel that Strata should cover the cost of Common property and individual lot owners should cover cost of windows within their lot.

             

            #18908
            Whale
            Flatchatter

              Jimmy – I wouldn’t bet my last cent on it, but so far as I’m aware the change from the 1960’s Legislation to the 1973 Strata Schemes (Freehold Development) Act resulted amongst other things in a change to the recognised boundary between Lots and the Common Property, from the centre line of common walls, floors, and ceilings to the inner face of those.

              Again, I’m not certain, but so far as I’m aware one of the savings provisions in the 1973 Act left walls separating parts of the Lot in already Registered Plans as part of those Lots; that is as it was under the 1960’s Act. 

              It’s not really germain to the question so I haven’t bothered to search for the old Act/s, but whilst jamezb should still check the Strata Title Plan for any relevant notations / exceptions, the norm is I believe as he/she’s stated for pre- 1974 Plans.   

              KP – in NSW (which is where I think jamezb‘s located) O/C’s can resolve by a simple majority to carry out works for which its not otherwise responsible, and without then becoming responsible for whatever it is that they’ve done infinitum. 

              I think that I’ve missed the original question though, where ….

              jamezb said

              Should the cost of the ‘common property’ window replacement be split due to ‘unit entitlement’ or split in regards to % of square metres required.

              and where my response is, if the total cost of replacement for Common Property windows is to be met from O/C’s funds (i.e. Sinking Fund) then its already been “split” in accordance with the units of entitlement (UOE) on its way in, and if the O/C needs to raise the funds necessary by way of a Special Levy then again it should apportion Owners’ contributions in accordance with UOE; although if a different once-off formula could be agreed upon by way of a simple majority at a General Meeting I wouldn’t be too concerned.

              #18915

              Thanks everyone for your prompt and professional responses!

              Just to add a spanner into the works, with the view that 21 of the 28 lots have a balcony and there are no exemptions regarding the pre 1974 strata laws in the strata title search, would it be possible for a consensus at the AGM to make balcony windows/doors common property? Does this require >75% to be approved?

              I recognise the pre-1974 laws but find it ridiculous that a window on a balcony is owner responsibility but a ordinary window is common property…

              Many thanks again!

               

               

               

              #18918
              Whale
              Flatchatter

                jamezb – the simple answer to both your questions is YES.

                At a General Meeting of the Owners Corporation (O/C) a Motion can be Resolved by way of a Special Resolution to add to the Common Property of the Plan. That would require ≥75% of those present and entitled to vote (i.e. personally and by proxy) to be in favour, where that percentage must be calculated on the basis of unit of entitlement.

                In the absence of a subsequent Special By-Law stating who’s responsible for the on-going maintenance, repairs, and replacement of the balcony windows and doors, then the default position is that the O/C would be responsible for all that; and that’s your objective.

                The more complex issues include that any additions to the Common Property under this Provision of the NSW Strata Schemes Management Act (1996) are   to be for the purpose of “improving or enhancing” that Common Property.

                So you first challenge is to convince your fellow Owners that what you, and I suspect the other 20 affected Owners, may propose meets that criterion.

                Your second challenge is to address the increased “value” of the Units owned by those 21 individuals that would arise from any such Special Resolution by the O/C, that is from the perspectives of both future sales and the on-going maintenance costs.

                It’s both customary, and in my opinion appropriate in the circumstances, for any Resolution of the type discussed here to include a provision for an on-going annual  monetary “contribution” to the O/C by those 21 Owners, the amount of which should be reflective of that beneficial “value” and be varied over the years in accordance with movements in overall Levy Contributions.

                A contribution of the type suggested may even sway the other 7 Owners to a conclude that what’s proposed could “improve and enhance” (the look) of the Common Property; at least all windows and doors would be the same and  be always maintained to the same level (?).

                Good luck, and perhaps start canvassing other Owners, and especially the 7 who really don’t stand to benefit all that much from any such proposal, to gauge the extent of support between now and the next General Meeting.   

                #18927
                Kangaroo
                Flatchatter

                  My understanding is that the 1974 changes to the Act, for new stratas, made balconies Common Property and moved the dividing line between Lot and Common Property from the middle of common walls to the inner surface. Therefore doors leading onto balconies were Common Property for new strata plans, but remained part of the Lot for existing Stratas.

                  My understanding is also that the reason it wasn’t changed for existing stratas was the constitutional issue as per “The Castle” – that for existing stratas it would be “acquiring (Lot) property without just compensation” if done by a law change.

                  Which makes me wonder how the NSW Strata Review intends to bring pre-1974 schemes into line with post-1974 schemes. I don’t think the constitution has changed. Perhaps if existing schemes passed a unanimous resolution?

                  I also think that your building would look a lot nicer if all windows and balcony doors were of the same style, so it’s a matter of convincing everyone that this plan is good for them.

                  Balcony-owners would get “just compensation” if the OC acquired their balcony, in the form of a free new door and future maintenance by the OC, but still have exclusive use.

                  Non-balcony-owners probably have more windows than balcony-owners and they would get the benefit of the project going ahead and the building still having a consistent appearance, which increases their property value.

                  But if you get one curmudgeon balcony-owner who doesn’t want to pay for their own balcony door, or one non-balcony-owner who doesn’t want to pay for balcony doors which are not Common Property, then yoiu might be up sh*t creek.

                  #18931
                  Jimmy-T
                  Keymaster

                    @Kangaroo said:
                    My understanding is that the 1974 changes to the Act, for new stratas, made balconies Common Property and moved the dividing line between Lot and Common Property from the middle of common walls to the inner surface. Therefore doors leading onto balconies were Common Property for new strata plans, but remained part of the Lot for existing Stratas.

                    Which brings me back to the point – jamezb is being asked to pay a share of repairing something he doesn’t own, either individually or collectively.  However, under section 64 (see below) the Owners Corp is entitled to repair or replace lot owners property if they need to do so to protect the integrity of the building.

                    So Jamezb is stuck with his share of the bill based on Unit Entitlements, rather than actual share of the benefit.  But if the windows were common property, the same would apply.

                    This is what the Act says:

                    64 What power does an owners corporation have to carry out work at its own expense?

                    (1)  An owners corporation may carry out such work as is necessary to rectify any of the following defects:

                    (a)  any structural defect in any part of a building comprised in a lot that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,

                    (2)  An owners corporation may carry out work referred to in this section at its own expense if the cost of the work cannot be recovered from some other person.

                    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.
                    #18932
                    Whale
                    Flatchatter

                      Isn’t Cl 64 irrelevant? 

                      After all the work that James (jamezb) wants his O/C to pay for hardly passes the test under 64.1(a), and the costs of the work can be recovered from another person under 64.2; him.

                      James does own the Common Property windows as part of the O/C “collective”, but that aside, wasn’t his original beef that his O/C was going to use funds collected on the basis of units of entitlement to replace Common Property windows, in circumstances where his Lot only had one (1) of those, where other Lots had many, and where his balcony door and window could only be concurrently replaced at his own cost?

                      Have I given James and everyone else a headache, or have we actually solved his problem IF he successfully argues a case for his O/C to add to it’s Common Property by taking-over balcony-facing doors and windows?

                      I think I need a drink (won’t walk through any glass doors though).

                      #18934

                      Thanks for the replies everyone. Would passing a consensus to have balcony doors and windows require a change in unit entitlements? Did pre-1974 entitlements not include the balcony in entitlement calculations? I agree that all it takes is one lot owner with a balcony to not go ahead with repairs to stall the whole thing

                      #18935
                      Whale
                      Flatchatter

                        James – firstly it’s not a consensus, it’s a vote in favour by in excess of 75% of those Owners who are entitled to vote at the General Meeting, and secondly, I (and others) suggested an on-going “contribution” to the O/C by Owners such as you who would benefit from it accepting responsibility for the maintenance and repair of your/their private property, as that’s a far better solution than doing a Strata Sub-Division of your Plan in order to change unit entitlements.

                        I’d suggest that you start lobbying right now in order to avoid that one lot stalling the whole thing.

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