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This owner is an architect (retired) who is making very expensive renovations (about $200,000) to the unit his wife inherited in our strata. He received permission in 2009 to do a number of things, but now the work is in progress and he has changed a number of things that were not approved:
1. taking out a brick column between 2 sliding doors as access to the balcony and extended that opening to include another window at the side (he did get permission to enclose a part of the balcony)
2. had plans to extend the balcony floor slab to meet the edge of the building (about 500mm) – no permission
3. has put his hot water tank up in the ceiling cavity of the laundry – no permission (and not in his plans)
4. has removed part of the front entrance (about 500mm) to enlarge the door area so he could bring in a large ‘fridge. The original door has been taken to the tip – no permission and not in his plans
What can we do with this man? He says he showed the plans to the Committee before building commenced – not true. He rushed the plans to STM offices to get them stamped before going to Council.
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All these alterations require not just the approval of the committee but the approval by Special Resolution of the OC and a relevant bylaw passed ensuring that he accepts responsibility for the ongoing maintenance of these alterations.
Advise him (Sec or SM gives him written notice) that he must stop immediately all work on his lot and give him say 28 days to organize a SR motion to be approved by the OC to these alteration and a suitable bylaw drawn up at his cost and then approved by the OC and registered at NCAT.
If he fails to do so you can advise him that the EC will take him to NCAT to get ALL the renovations to common property removed at his cost.
Votes by the EC or OC would be required for some of these actions but if a bylaw is not registered before he sells the alterations to common property become the OC responsibility to maintain.
Kathsoo – all that’s substantially correct, but as neither your Executive Committee (E/C) nor Strata Manager appear to be doing anything about your neighbour’s renovations and his changes to the Common Property, you need to personally:
1) apply for mediation of the issues HERE
2) apply for adjudication under Clause 138 HERE; and,
3) seek interim orders for the neighbour’s works to be immediately stopped HERE making sure that you attach copies of minutes outlining what the E/C did approve, and why you believe the interim orders are urgent!
Note that the application for interim orders needs to be lodged concurrently with those for mediation and adjudication (e.g. in the same envelope), as in that way those orders can be served on your neighbour immediately to stop his renovation activities, thus allowing the mediation and adjudication processes to take their sweet time while you seek the active support of any other owners who feel as you do!
If in doubt, contact the New South Wales Civil and Administrative Tribunal on 1300 006 228 – tell them that you want to lodge an Application for Interim Orders, why, and why that’s urgent.
Sorry to hijack but I have a similar problem – but more advanced. This owner made numerous unapproved alterations to common property, such as replacing all their windows and doors (in a different style and with double glazing), and installing a “security partition” on the wall between their balcony and the next.
They also installed aircon even though the motion was denied at the AGM.
They were issued with Notices to Comply (in December I believe) which were ignored. The EC recently decided to proceed to mediation/adjudication but the owners have now put their property on the market for auction very soon.
Is it true that once it’s sold it it’s too late to seek rectification of the damage/restoration? Does this responsibility not fall on the new owner?
They have (just now) drafted a by-law taking responsibility for ongoing upkeep. If it’s true that the matter simply ends when the current owner sells, in the absence of any time to commence legal action should we just accept that by-law and accept the different appearance?
jezzie – the very first thing that your Owners Corporation (O/C) needs to do, like right now, is write to the Auction Agent to formally advise that alterations to both the lot and to the common property (include known details) have been undertaken by the current Proprietor without the prior consent of the O/C, that the matter is currently before the NSW Administrative and Appeals Tribunal (NCAT), and that unless an appropriate Special By-Law is Registered prior to settlement then the O/C requires any future Proprietor to at their expense to restore the common property to its pre-renovation state.
You may want to obtain some legal assistance with the drafting of the above; perhaps have your E/C Secretary or Strata Manager contact one of FlatChat’s sponsors HERE.
If the applications for mediation and adjudication have been submitted to the NCAT (of which the former CTTT is a part), then I’d let those take their course whilst whatever it is that the renovating Proprietors have proposed in their draft Special By-Law is being given careful consideration by the Executive Committee and the Strata Manager.
Clearly I’m unaware of what Special By-Laws are already in place at your Plan or what it is that these Proprietors have drafted, but I’ll assume that no Special By-Law of relevance is in place, and that as the first thing that the “renovators” need to do is to write to the O/C formally agreeing to be responsible for the ongoing maintenance of everything that they’ve renovated and/or changed and/or added to, I’m wondering if it’s that letter that you’re referring to (?).
If it is, once that letter is received by the O/C an appropriate Special By-Law (SBL) can be drafted to incorporate that provision and anything else that the O/C determines, such as the “renovators” payment for the costs of the necessary General Meeting to consider and vote on the SBL, for the drafting and Registration of the SBL, and perhaps an annual payment to the O/C by the current and all future Proprietors of the lot to account for any increased value due to the renovations and common property changes that aren’t reflected in its current units of entitlement / levies.
It’s extremely important for the SBL to be properly drafted, as once done it can’t be undone without the written consent of the then Proprietor of the lot, and YES it needs to be worded to apply to all future Proprietors to avoid the O/C becoming responsible for everything renovated post the upcoming Auction.
That’s why in order to be legal any SBL needs to be consented to by ≥75% of Proprietors present both personally and by proxy at a General Meeting, with that percentage being determined from the units of entitlement (UOE) of those voting and the aggregate UOE for the Strata Plan, and be Registered on the Strata Title by NSW Land & Property Information (inc. the former Land Titles Office).
So as you’ll see, there are quite a few hoops for these “renovators” and the O/C to jump through – and that’s why that advice to the Auction Agent needs to be provided quickly.
Thanks Whale, I appreciate your quick response. The Applications for Mediation & Adjudication have not yet been written. I fear it may be too late for that.
We requested our SM get their lawyer to write to the Selling Agent (after I received that advice from the SM of my other property) but as NCAT matters are not yet in train the letter may not have had enough bite.
We do already have some SBLs in our strata (such as for my renovations) and the SBL the renovators have drafted appears to be appropriate/similar in its wording.
I don’t think there is any intention to hold a GM between now and Auction Day (16/4), the owners propose it to be put to vote at the next meeting (Sept) but they won’t be around!
My concerns are thus:
1) If we let it go through with “only” a SBL, what precedent for changing the appearance of the lot are we setting? We are basically saying that anyone can change whatever they like, as long as they do a SBL.
2) I can’t find any mention of recourse/penalty if someone proceeds to do something that was denied at an AGM. I find it staggering that eg. I request permission to turn my balcony into a deck >motion denied >I do it anyway > just write a SBL >all good.
Thanks again for any input. (Receiving third-hand info from our SM’s lawyer is making things a little unclear.)
Cheers
@Whale said:
jezzie – the very first thing that your Owners Corporation (O/C) needs to do, like right now, is write to the Auction Agent to formally advise that alterations to both the lot and to the common property (include known details) have been undertaken by the current Proprietor without the prior consent of the O/C, that the matter is currently before the NSW Administrative and Appeals Tribunal (NCAT), and that unless an appropriate Special By-Law is Registered prior to settlement then the O/C requires any future Proprietor to at their expense to restore the common property to its pre-renovation state.You may want to obtain some legal assistance with the drafting of the above; perhaps have your E/C Secretary or Strata Manager contact one of FlatChat’s sponsors HERE.
I am just reiterating this first part of what Whale wrote because it is vitally important that you get this on the record in some form NOW. If you can also hold a quick EC meeting and have the letter accepted into the minutes, so much the better. This puts the onus straight back on to any future purchaser’s solicitors or strata search company to inform them and they can’t come back in the future and say they didn’t know. That in turn should get your recalcitrant owner to do something about this.
You could also get a builder to give you an estimate of how much it would cost to reinstate all the common property so you can put a financial figure on this and present it to them as a debt against the future sale of their property.
You don’t have to have everything all legal and ship shape at this stage. All you need is to make a valid claim and that will cause enough confusion to undermine the owner’s efforts to make this a clean sale. They seem determined to profit at their neighbours’ collective expense and you are entitled to do whatever is required to prevent this.
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.
jezzie – please follow Jimmy’s advice!
With regard to the Applications for Mediation (HERE) and Adjudication (HERE), neither is particularly onerous in terms of completion or of the information required, so if your Strata Manager can’t do that expeditiously (with the assistance of the E/C), then given the urgency do that yourself!
In answer to your questions, if your O/C was to “let it go through with only a SBL”, although I don’t know why it would do that given the information that you’ve provided, the wording of the document could very easily make it specific to the lot in question.
With regard to penalties, I would have thought that the issuing of Orders requiring the Proprietor to at their cost return the common property to its original state and the imposing of monetary penalties if they don’t do it within the prescribed timeframe, or a delayed sale and/or the Vendor having to adjust their sale price (↓) to allow the Purchaser the costs of making those changes would each be a sufficient disincentive.
Note also that if your Plan’s E/C doesn’t make a decision on how to address the “renovator’s” SBL within 2 months of receiving the draft, then under the provisions of Sect 138(2) they can themselves seek Orders to have a NCAT Adjudicator settle the matter, and goodness knows how that may go!
Good luck with it all!
What the?
Similar situation, been down the legal road n now the new Owners after 3 years of using CP, 50ish sqm no levies, no cost to them, will only do Exclusive Use and pay a stupidly minimal amount and no future levies!! on a sq. meterage not too far off the size of my apartment that they have stolen! My quarterly levies r $900, no pool, nothing, one lift. Our lawyer says we only have one option, bylaw Exclusive Use and no levies. Does not make sense to me,, I would rather see the area removed! These thieves have had use of 50sqm for 3years!
Whale, what is the annual payment you speak of?
I would give .. like to say my right arm but I would just be being silly, to find a way to get some money in our coffers from these thieves.
CBF
CBF – Sect 65A of the NSW Strata Schemes Management Act states at Cl.5(a) that “a By-Law made for the purposes of this section may require, for the maintenance of the common property, the payment of money by the owner concerned at specified times or as determined by the owners corporation…”
So when the Special By-Law (SBL) is drafted it’s quite appropriate and indeed customary for a provision to be included that requires the beneficiaries (of the SBL) to pay an amount to the Owners Corporation (O/C) each quarter that takes account, amongst other things, of any increased value to their Lot that’s arisen from the consented alterations / additions, and which is not reflected in that lot’s units of entitlement (UOE).
Whilst Cl.5(a) states that any payment is “for the maintenance of the common property”, that doesn’t mean the common property for which the beneficiary is made responsible under the SBL, but rather for the common property of the O/C where amounts for its proper maintenance and care are contributed to the Admin Fund by all Owners on the basis of their UOE.
BRILLIANT!Thanks Whale,
Made my day.
And I hope this info helps all.Big Cheers,
CBF
Hope the issue got solved for you guys jezzie and CPF. I can’t imagine what it must’ve been like to be stuck in a situation like this and I’m glad for sites like this that give such helpful advice. Anyway, can we archive this thread in storage for further references?
I’d just like to make one final comment about special resolution and exclusive use by-laws. One question that gets asked a lot is “where does it say that they person who wants the exclusive use has to pay the cost of the by-law and meetings, etc?”.
The answer is nowhere, but any owners corp that doesn’t force the owners who are benefitting from an SBL to pay for it, deserves to be fleeced in this way. It’s “user pays” and if the benefitting owner doesn’t want to pay, then don’t vote for their by-law and they don’t get exclusive use. It’s really that simple.
As for “anchoring” this in archives, the search button works really well so it will always be easy to find older posts.
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.
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