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An aquaitences has approached regarding a problem in his small townhouse complex. His immediate neighbour applied for an exclusive use by law in order to have a pergola erected over his courtyard. Everyone was happy with the plans provided which showed the pergola would be a few metres away from the fence of my friends courtyard. Problem is it isn’t avew metres away and has been erected considerably closer to the fence. So now this friend can see the structure over the fence and is not happy about it. Enquiries to the EC have lead no where. They don’t want any bother.
If plans are produced in order to secure an exclusive use by law, and these plans are not adhered to, does this not constitute a breach of this by law? My suggestion was to contact council about this structure and see if any plans were submitted regarding it. This friend has limited means and funds to fight this alone. But what’s the point of an exclusive use by law if they then do want they want anyway? And if the EC doesn’t step in and enforce it and the structure that has been built does not match the details on this by law, would responsibility of its maintenance fall back onto the EC?
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Don’t understand why he required an Exclusive Use Bylaw for his courtyard which would generally be an exclusive use area anyway, especially if it was fenced originally.
He would require a bylaw authorizing the Pergola to be erected and it should also have stated who was responsible for the repair and maintenance of the structure (lot owner). Was this done and was the bylaw registered with the Gov dept.
Assuming it was registered with the Gov and their was nothing in the bylaw referring to responsibility for maintenance of the structure, then as the completed structure is not what was approved by the Strata then it’s not the responsibility of the Strata to maintain (it may well have been the Strata responsibility if what was on the plan was what was built and nothing in bylaw declared whose responsibility maintenance was).
OK, I think what we are talking about here is a by-law that allows the exclusive use of the airspace above common property for the construction of the pergola as well as anything that is attached to common property. Whether it’s ‘exclusive use” or ‘Special Resolution’ doesn’t really matter – it’s a by-law.
The terms of the by-law should contain the dimensions of the pergola or at least a reference to a plan. The by-law should also contain an agreement about who is going to look after this construction.
This is what the Act says:
Division 4 Special provisions for by-laws conferring certain rights or privileges
54 By-law must provide for maintenance of property
(1) A by-law to which this Division applies must:
(a) provide that the owners corporation is to continue to be responsible for the proper maintenance of, and keeping in a state of good and serviceable repair, the common property or the relevant part of it, or
(b) impose on the owner or owners concerned the responsibility for that maintenance and upkeep.
And …
(3) To the extent to which a by-law to which this Division applies makes a person directly responsible for the proper maintenance, and keeping in a state of good and serviceable repair, of any common property, it discharges the owners corporation from its obligations to maintain and repair property under Chapter 3.
And my reading of that is that the by-law isn’t valid if it doesn’t say who is responsible for maintenance.
Also, if the Pergola hasn’t been built in accordance with the by-law, the aggrieved owner can apply to the CTTT for an order compelling the pergola owner to comply with the terms of the by-law.
Now, as you know, I’m not a lawyer so definitive opinions are welcome
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.
Agree with all of that, except ……
@ JimmyT said:…. and my reading of that is that the by-law isn’t valid if it doesn’t say who is responsible for maintenance.
…. because IF the pergola’s actually been authorised by the Owners Corporation (O/C) by way of Special Resolution (to add to the Common Property) and the resultant By-Law is silent on the subject of on-going maintenance, then it is still valid and by default the O/C is responsible for all maintenance.
Lastly, if the pergola meets the requirements of State Enviromenetal Planning Policy 2008 (SEPP) then it would not require Council approval, BUT if it does not meet those requirements and doesn’t have Council approval, then it’s an illegal structure under an Act that trumps whatever authorisation the O/C may have given.
So maybe ask your acquaintance to check the pergola against the criteria in the SEPP, and if it’s not compliant in all respects, then Council may be the means to address his concerns and give the O/C the opportunity to re-jig its authorisation should it need to do so.
@Whale said:
…. because IF the pergola’s actually been authorised by the Owners Corporation (O/C) by way of Special Resolution (to add to the Common Property) and the resultant By-Law is silent on the subject of on-going maintenance, then it is still valid and by default the O/C is responsible for all maintenance.
Whale I don’t disagree with anything you’ve said but it seems to me that this is an open invitation for unscrupulous owners to get Special Resolutions passed for alterations and forgetting to include who is responsible for the maintenance. 99% of owners would not be aware of this catch and would happily approve an alteration expecting the onus for maintenance to fall on the lot owner.
Taking this to the extreme a lot owner could obtain permission for an extension with no indication of who is responsible for maintenance and then put up a shoddy structure and expect the OC to bring it up to scratch claiming it’s OC responsibility to maintain.
I’m of the opinion the OC should only be responsible for the original structure and only alterations the OC has paid for (that is my understanding of the rules in QLD).
Kiwipaul – yes you’re right, and here’s the relevant clause under S65A of the NSW Strata Schemes Management Act (1996)…
2) A special resolution that authorises action to be taken under subsection (1) in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.
(3) If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.
Not disputing any of this. It does seem strange though that the law says a by-law “must” contain certain elements and then, elsewhere, spells out what to do if it doesn’t.
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:
Not disputing any of this. It does seem strange though that the law says a by-law “must” contain certain elements and then, elsewhere, spells out what to do if it doesn’t.JimmyT is right & this question must have been raised & dealt with by NCAT/CTTT in the past. Does anyone know?Yes, it’s clear on the face of the provision – the word is “may”, not “must” – so it is permissive, not prescriptive.
In other words the by- law can provide the owner is responsible, but if it doesn’t/is silent, the OC is.
Reading this thread today has been very interesting. In our complex, some of the houses have air conditioning units attached to their back walls which are within their fenced courtyards. There are also some with automated garage doors. Our by-laws are of the generic variety, lifted straight from the enabling legislation. There being no special by-laws, all of those “improvements” must be illegal. Last year, we paid for maintenance & replacements of some of those doors out of our admin fund. That too must have been illegal. I can’t find anything to the contrary in either the SSMA or the OFT web site. What do you say people?
@daphne diaphanous said:
There are also some with automated garage doors.If the garage doors are original or installed by the Strata then they are the Strata responsibility (including the opening mechanism, motor, rails, springs, etc which are within the lot). The only exception is the remote which is considered owners responsibility.
If owners have installed a automatic opener to the original door it is the owners responsibility (except the actual door). If owners have replaced the garage door with new door and opener then that owner has full responsibility for door and opener (until lot sold), then responsibility returns to the Strata BUT only for the door (not the automatic opener). This assumed no notion passed approving change.
If strata passed an ordinary motion granting permission for the change but didn’t ask for a bylaw then the Strata remain responsible for both the new door and automatic opener.
This to me seems to leave NSW strata wide open to abuse by unscrupulous owners who know the rules and exploit them.
Dear kiwipaul, you haven’t really answered my question. As far as I can see, all the alterations & additions to common property must come with a special by-law, not just an AGM (we don’t have GMs or EGMs) agreed permission. Oh, and I forgot to mention the pergolas. However, I agree with you that NSW SSMA is open to abuse all the way. They (our EC & the SM) are clobbering an elderly widow with a heart condition at the Tribunal to remove her a/c from the common wall (she had it installed last year) to her back wall. All of the clobberers, bar the SM, have all three “improvements” & nary a special by-law in sight.
@daphne diaphanous said:
They (our EC & the SM) are clobbering an elderly widow with a heart condition at the Tribunal to remove her a/c from the common wall (she had it installed last year) to her back wall. All of the clobberers, bar the SM, have all three “improvements” & nary a special by-law in sight.BUT did the OC or EC pass an ordinary resolution approving any of these improvements because if they did then they have got approval for their alterations with the OC having to maintain them (due to their being NO SBL defining maintenance responsibilities). This to me is a crazy situation.
The good news is the Tribunal case will fail (IMHO) if the widow can show others have been granted permission and she has been denied. Just get her to submit a motion to EC or OC asking for retrospective approval for a/c. If the other clobberers did not seek approval she doesn’t even need to seek permission because they cannot apply the bylaws selectively.
My feeling is 90% of alterations don’t ask for approval, 9% seek approval and 1% do the correct thing and get an SBL passed. This is based on what happens in my Strata in QLD (where the onus is on the owner for maintaining any alteration done by owner and only an ordinary motion approving change is required).
Kiwipaul said: BUT did the OC or EC pass an ordinary resolution approving any of these improvements because if they did then they have got approval for their alterations with the OC having to maintain them (due to their being NO SBL defining maintenance responsibilities). This to me is a crazy situation.
Perhaps the Strata Schemes Management Bill’‘s use of the phrase “common property rights by-law” will overcome the understandable confusion that currently exists about special resolutions of an Owners Corporation automatically leading to or requiring special by-laws.
Changes and additions to the common property of a Plan can only receive the consent of an O/C if >75% of those in attendance at a General Meeting, both personally and by proxy, vote in favour – and where that percentage is determined from the units of entitlement (UOE) of those voting and the aggregate UOE of the Plan (i.e. a “poll vote”); that’s a special resolution. Under this scenario the works can proceed, and the O/C is responsible for the on-going maintenance and repair of whatever it is that’s been consented and thereby attached / added to its common property.
Only where an O/C wants to make the current and future Owner/s of the consented changes (instead of itself) responsible for its on-going maintenance and repair, and the current Owner agrees with that proposition in writing, is it then necessary for a new by-law to be prepared and Registered on the Strata Title for the Plan; that’s a special by-law (SBL).
If an O/C believes that the nature or type of the consented works may result in future identical applications by its Owners, with each of those having to come before a General Meeting, then it may make the SBL generically applicable (i.e. to all Owners) and thereby delegate future decisions of that nature or type to meetings of its Executive Committee.
It’s due to this confusion and the fact that Owners in our Plan would routinely go ahead with alterations and additions to common property areas of their lots without first seeking the O/C’s consent, that years ago we created a registered a SBL that required the O/C (read: “me”) to create and maintain a Register of Additions and Changes to Common Property, and that contains provisions that in essence state that anything that’s not in the Register is the responsibility of the Owner from time-to-time of the Lot (where the addition / charge occurred). It works a treat!
@Whale said:
Changes and additions to the common property of a Plan can only receive the consent of an O/C if >75% of those in attendance at a General Meeting, both personally and by proxy, vote in favour – and where that percentage is determined from the units of entitlement (UOE) of those voting and the aggregate UOE of the Plan (i.e. a “poll vote”); that’s a special resolution. Under this scenario the works can proceed, and the O/C is responsible for the on-going maintenance and repair of whatever it is that’s been consented and thereby attached / added to its common property.
OK so only the OC can approve changes to the common property by a vote of 75% in favor and if that happens then the OC accepts responsibility for the ongoing maintenance of the item approved (if no SBL registered). This is not difficult because most owners would not realize the implication of granting permission for the change and so vote in favor thus lumbering the Strata with the ongoing maintenance. The only thing the proposer has to do is make sure it is voted as a special resolution rather than a ordinary resolution.
But what happens if an owner says he received the 75% approval 10 years ago for an a/c unit which has now failed and he wants the OC to replace it. I serious doubt many keep an ongoing record as you do and the chances of finding a copy of the motion from 10 years ago is remote. So the OC is lumbered with the replacement cost.
The onus should be on the lot owner to prove it.
Also what happens when a new owner buys a lot the responsibility of the owner who did the changes vanishes once a new owner appears.
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