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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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Thank you both kiwipaul & Whale. Due to the requirement of 5 year archival of strata documents, we are unlikely to be able to discover whether there were any resolutions regarding the additions at all. Unless of course, the individual owners are required to hold on to the permission/agreement documents as proof the works were approved. Does anyone know?
On a different note, there may be a way to equalise this situation where individual owners make additions & the rest of us are saddled with their maintenance. A strata lot owner with deep pockets, living in a similar situation anywhere in NSW could lodge an application at the Tribunal to demand that all lot owners in that strata must have the same alterations in order to preserve the pleasing uniformity of its appearance, therefore its value. Further, all such construction expenses be paid by its sinking fund & any related maintenance paid out of the admin fund just like the others, who, while they might have paid for their alterations, would have had the benefit of free maintenance out of the common funds over the years. The success of such an application would also benefit the incumbent government of the time that the purported fairness of its strata laws are there for all to see. Failing that, the application itself would be noticed widely, especially with a little help from the applicant, along with other interested parties in similar situations, creating a very, very important precedent. Since our legal system runs on precedents, even in minutely prescribed laws, it would make little difference whether the initial application were successful. I can just see the SPs lining up at the Tribunal. It would be interesting to hear from the specialist lawyers who read this forum. And dear Strata gurus, please pause a while before you attack your keyboards to call me a harebrained idiot.
cetacean pausing….
I think it’s time to put this thread to bed!
Dear Whale, during your cetacean pause, did you consider my question at all? Which was as follows:
“Due to the requirement of 5 year archival of strata documents, we are unlikely to be able to discover whether there were any resolutions regarding the additions at all. Unless of course, the individual owners are required to hold on to the permission/agreement documents as proof the works were approved. Does anyone know?”Let me step in here. If owners have received permission in the past for changes to common property, for them to have had any effect they would have had to have been registered as special resolution or exclusive use by-laws which would then have become part of the consolidated by-laws of the scheme.
In other words, if proper permission was given properly, the department of Lands would have a copy. If there were no by-laws or if they were never registered, and in the absence of any records to the contrary, permission was never officially given.
And i agree with Whale. we’ve run around these particular circles quite enough (especially since I find myself disagreeing with stuff I wrote earlier). This case is now closed.
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.
Thank you JimmyT. That was really all I wanted to know. All of you gurus are truly helpful. Reading the Act in light of your collective advice on various matters makes a lot more sense than it would otherwise.
Jimmy, [please delete previous post, as I mucked up the format].
I started reading (and contributing to) your Flat-Chat web site after reading your submissions to the Strata Review and thinking how insightful they were, particularly the one about putting the rights of the many ahead of the rights of the individual.
However, I stopped contributing in December after you stomped on, rather than just disagreed with, a couple of my contributions.
I think you’ve just done the same thing to Daphne’s recent contribution.
She may have done the wrong thing by resurrecting a year-old corpse instead of starting a new thread, but she hasn’t yet received an answer to her question, and I think you should allow threads to run until they die a natural death.
Particularly so, as your closing argument could be read to imply that special resolutions, rather than just special By-Laws, need to be registered with the Dept of Lands. That post will be around on the interweb forever.
In my opinion, the answer to Daphne’s question is:
1) Owners are not required to keep a copy of the OC’s permission to attach something to common property.
2) They are stupid if they don’t, but a lot of people are stupid.
3) Permission (to attach something to common property) can only be granted by special resolution of the OC.
4) Therefore it will be documented in the minutes.
5) OCs (and therefore SMs) are only required to keep agendas and minutes for 5 years.
6) This is a deficiency in the Act which the Gov has no intention of addressing.
7) However, a good OC or SM will keep them for the life on the scheme, but they may be “archived”.
8) You may have to pay the SM for retrieval from archive, or for your time on their premises searching through the retrieved archives.
9) If they are charging you regular “archive storage fees” but have actually destroyed the records, then they are committing fraud.
10) Not all “exclusive use rights” require a By-Law, particularly if the “exclusive use” is guaranteed by being inside a lot and the OC is prepared to maintain the attachment.
11) That’s why she wants to troll though the minutes.
Publish none, part or all if you like.
Your web site has really enabled me to clarify my thoughts on strata issues, and I was about to write a couple of posts (essays really) on two of the most troublesome notions which are frequently championed on your site, even by the gurus.
But, it’s your web site. If you want it to be a place where the same old stock answers are given to the same old stock questions asked by every newbie, rather than a discussion forum, then I won’t bother.
Having consumed sufficient of your home country’s chief export, I shall now retire to bed.
Lovely, lovely Kangaroo.
I was reading the second reading of SSMA amendment bill of 2004 this afternoon, but found hardly any mention of the 5 year archival provision which came in then. Strange really. I think it was meant to be that way (slipping under the radar), while they all raved about knickers hanging on balconies.
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