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I live in a 2 storey block of 7 units – 3 below and 4 on top ( the ground rises from front to back with the building stepped up half a level at its midpoint and the 4th top unit at the back has ground beneath it.
3 years ago, at an annual general meeting, the strata manager pushed his own proposal to allow the 3 bottom units exclusive use to the common property at the rear of their units. This area was never used by anyone and required the units putting in access doors otherwise access could only be gained by walking around the back of the building.
For some reason the strata manager was pushing this idea. He didn’t mention that an annual rental could be charged and to console us about misuse of the property, he said that the exclusive use could be cancelled with a 75% vote of the OC.
As a result the exclusive use was granted for free. I feel we were misled and duped by the strata manager. Are there any options available to me or are we stuck with it forever?
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Yes, a grant of Exclusive Use can incur a cost after the Exclusive Use has been granted to the recipient, but not easily.
Section 53 of the Strata Schemes Management Act 1996 states:
“53 Can a by-law contain conditions?
A by-law to which this Division applies may confer rights or special privileges subject to such conditions as may be specified in the by-law (for example, a condition requiring the payment of money by the owner or owners of the lot or lots concerned, at specified times or as determined by the owners corporation).”
And yes, a grant of Exclusive Use can be repealed, but not easily. Section 52 deals with this matter.
“How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
Section 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.
(2) A by-law to which this Division applies may be made even though the person on whom the right of exclusive use and enjoyment or the special privileges are to be conferred had that exclusive use or enjoyment or enjoyed those special privileges before the making of the by-law.
(3) After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.”
For a legal opinion see also: https://epublications.bond.edu.au/cgi/viewcontent.cgi?article=1374&context=blr
(my emphasis only)
@Peter Gray said:
…proposal to allow the 3 bottom units exclusive use to the common property at the rear of their units. This area was never used by anyone and required the units putting in access doors otherwise access could only be gained by walking around the back of the building…Since nobody else was using this space but a small modification made it useful for three of the units, what is the problem with those units getting a benefit? By the sounds of it, it was not a zero sum game. Nobody lost anything when three units could make the space useful to them by putting in a door each.
Only if the OC as a whole had given up something useful in order for the three units to benefit would I worry about it.
Apply to NCAT to have the by-laws overturned under the terms of Section 158 (1) (c) because proper procedure was not followed, inaccurate information was provided and proper compensation – as outlined in previous legal cases – was neither sought nor offered.
158 Order with respect to by-laws conferring exclusive rights or privileges over common property
(1) An Adjudicator may make an order prescribing the making, amendment or repeal, in terms of the order, 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, or
(b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed by-law of that kind, or to the proposed amendment or repeal of such a by-law, or
(c) on application made by any interested person, that the conditions of such a by-law relating to the maintenance or upkeep of any common property are unjust.
(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.
(3) An Adjudicator must not determine an application referred to in subsection (1) (a) by an order prescribing the making of a by-law in terms to which the applicant or, in the case of a leasehold strata scheme, the lessor of the scheme is not prepared to consent.
(4) For the purposes of subsection (1), an Adjudicator may determine that an owner has unreasonably refused consent even though the owner already has the exclusive use or privileges that are the subject of the proposed by-law.
(5) An order under this section, when recorded under section 209, has effect as if its terms were a by-law (but subject to any relevant order of a superior court).
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.
@Peter Gray said:
One of the units which received the exclusive use right was also given the right to build a 40 square metre deck in the area, which represents a major impact on the unit above considering the area was previously unused.I change my comment if there has been an adverse effect on other residents.
@PeterC said:
I change my comment if there has been an adverse effect on other residents.
Peter, your comments always take a more reasonable approach. I should always add the rider to mine “will this cause more grief and hassle than it’s worth?” And that’s something only the original posters can decide.
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.
@JimmyT said:
Peter, your comments always take a more reasonable approach. I should always add the rider to mine “will this cause more grief and hassle than it’s worth?” And that’s something only the original posters can decide.
Thanks. Though I can be hard-nosed when appropriate. Sometimes it just has to go to the Tribunal. Now in the process of learning how things go when a unit owner fails to comply with a Tribunal order and we seek an enforcement order.
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