Newbie Questions

There are a number of very different questions here – do give the Office of Fair Trading help line a call. The questions you are asking are valid, and you are right to be concerned. It is useful strategy to ask ‘dumb questions’ of both your strata manager and EC once you know got the correct response from the OFT. You can then gauge from the response how to move.

Good luck

Alley cat

It’s sound advice to contact the Office of Fair Trading (assuming you’re in NSW), but be warned, their response can differ depending upon the precise questions you ask and who you speak with.

In the meantime, here’s my response to the basic issues you raise – again assuming that your Strata Plan is in NSW:

1) Holding a General Meeting via a teleconference isn’t illegal, but it’s highly unusual as a the voting intentions of an absent Owner is customarily expressed via a Proxy (i.e. someone you know who is attending the Meeting), where you can give written instructions about how wish to vote on each Motion of the Agenda.

2) Your Owners Corporation should not allocate visitors carspaces to individual Owners as these would have been designated for “visitors” by the Local Council at the time that the Development of your Strata Plan was approved, and allocating them to individuals would breach that Approval.

If these carspaces are unallocated (i.e. not for visitors or for any Lot in particular), then they may allocated to individual Owners BUT this would require the prior agreement of at least 75% of Owners present personally or by proxy at a General Meeting followed by the Registration of an Exclusive Use By-Law and a payment to the Owners Corporation by those individual Owners of an amount ($) equivalent to the increased value of each of their properties as a consequence of the fact that they now have an allocated carspace.

3) There should either be a Special By-Law (as above) in place to permit all Owners (who want) to install air-conditioners and shutters etc to do so or a prior written consent issued to each Owner individually by the Owners Corporation including a condition that those Owners are responsible for the maintenance and repair of those “additions” (particularly the aircon). Depending upon the delegations granted to the Strata Manager, they could issue that consent on behalf of the Owners Corporation

4)  This is why your Owners Corporation should have Registered a Special By-Law with conditions or issued a written prior consent with conditions to each Owner who wanted to enclose their carports, because in the absence of conditions such as one about the Owners being responsible for on-going maintenance and repairs of the additions (i.e. the doors) then the Owners Corporation becomes responsible for that maintenance as the additions are by default deemed to be Common Property.

So now that you have my comments and after you have obtained comments from the Office of Fair Trading, what are you going to do?  

Well, if you really want to have the matters discussed and properly resolved, you need to “requisition” a General Meeting of the Owners Corporation.  You can either ask the Secretary of your Executive Committee to do that, or if they refuse, obtain written support to do that from at least 25% of all the Owners in your Plan (like a petition). In both instances, you will need to write down the details (perhaps using the 4 points above) and give that to the Secretary, who in the latter case must then convene a General Meeting to discuss and resolve them.

I’ve deliberately omitted some of the complexities, but hopefully the totality of the advice you receive will be a start.

G’day kiwipaul – it’s often necessary to read between the lines of some posts, and with regard to chilliblue’s post I assumed that as the carports are shown on the Strata Plan and are presumably within the stratum, then there’s a better than average chance that they form part of the Lots concerned, and that as such their external areas including vertical supports and the roofs are Common Property.

So in that circumstance, S65A of the NSW Strata Schemes Management Act (the Act) applies, where the Owners Corporation (O/C) can authorise individual Proprietors to make additions / changes to that Common Property by way of a Special By-Law (SBL) with standard conditions, or by way of a Consent (under that SBL) with specific conditions. 

The Act states that unless the O/C’s consent includes a condition that on-going maintenance of the addition/ alteration to the Common Property is the responsibility of the Proprietor, and that Proprietor agrees, then all  maintenance and repairs becomes the responsibility of the O/C [S65A(3)].

In chilliblue’s case, I again assumed that as the additions/changes to the carports had been done “over time and without any documented approval” (read no authorisation, no consent, no conditions), that those additions /changes would now be deemed Common Property and be the responsibility of the O/C. 

So back to your point about what’s stopping “every man and his dog making alterations and additions to their property without permission on the understanding that it becomes common property and O/C responsibility to maintain”?

Well, the answer at my Plan is a really diligent Executive Committee, (hopefully) honest Proprietors who own-up if they’re the ones who made the alterations/ changes, and a Special By-Law supported by a Register of Common Property Additions /Changes stating that any additions / changes that are not shown on the Register are unauthorised under S65A, and that maintenance and repairs of those are the responsibility of the present and subsequent Proprietor/s of the Lot/s concerned.

PS — I just hope that after all this chilliblue‘s in NSW and not in some other country (like Queensland Aye) where different rules may well apply . Wouldn’t consistency be great!

KP, I’m afraid i have to disagree with your figures. Just about every strata plan with which I’ve been involved has a special resolution by-law or two tucked away somewhere. It’s how we customise the ‘model’ by-laws to suit the specifics of each strata development.

@JimmyT said:
KP, I’m afraid i have to disagree with your figures. Just about every strata plan with which I’ve been involved has a special resolution by-law or two tucked away somewhere. It’s how we customise the ‘model’ by-laws to suit the specifics of each strata development.

Are you telling me Jimmy that in NSW most strata bylaws include something like this

and a Special By-Law supported by a Register of Common Property Additions /Changes stating that any additions / changes that are not shown on the Register are unauthorised under S65A, and that maintenance and repairs of those are the responsibility of the present and subsequent Proprietor/s of the Lot/s concerned.

I think it’s an excellent idea and it would put the onus on the owners to obtain permission before doing improvements otherwise it’s their problem in the future (instead of strata).

I accept that most (99%) have various bylaws tailored for their situation which is different from the standard bylaws but I was referring to a specific bylaw as proposed by Whale regarding responsibility for unauthorized alterations / improvements.

I accept you know more about NSW bylaws than myself as I’ve only ever seen the standard ones but going by the issues this and other sites throw up it doesn’t seem common to me.

Maybe it should be added to the default bylaws so it applies everywhere unless changed.

KP, if you could me a complex with honest owners who will do the right thing, please let me now as that is where is would like to live. In my complex, I know that owners have made changes within their units without permission. It is impossible to police even if we did have a well functioning EC. To ensure no changes are made we would have to inspect all units regularly referring to the original plans to check.

I am an honest owner but I think I will now jump on the band wagon. I am tired of being the Lone Ranger. What can the EC do to me when they don’t take action against those who they know have done something? I could go and put scaffolding out the front and what can they do? When others have left building materials and skips outside on common property for weeks and that’s been ok by our EC even when I complained. But what can you expect from a system where it states there are by laws that are to be followed, but there is no obligation or responsibility to enforce those by laws, but if you do make a change and the EC/OC let it go, then the other owners are responsible for your illegal handiwork should it all go awry. So people like me are left to fork out because people have called in a favor or rang uncle Jimmy to come over and rip out a wall, change the layout, change the windows. A system where there were by laws that had to be enforced, where there a responsibility to ensure they are enforced, and to make all owners present and subsequent responsible for any changes within their lot, with or without permission, in a complex with honest residents who do the right thing, that is where I would like to live.

@struggler said:
KP, if you could me a complex with honest owners who will do the right thing, please let me now as that is where is would like to live.

So would I but at least in QLD alteration made to the property remain the reasponsibility of the lot owner (even if they didn’t obtain approval) and far more of the internals of the lot are lot reasponsibility than in NSW.

In a Standard Format strata with free standing homes in QLD the total building can be owners reasponsibility.