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Hello all,
After many years of Strata Ownership I have steadily become more and more active on my Strata Committees but still have alot to learn. That’s what led me to this forum which I hope to become an active member on.
At the last AGM being the only one in attendance I inherited all 3 office bearers positions. One of the motions was to review the existing By-Laws by the end of November which i understand to be standard. I have taken this on due to the constant mismanagement by the existing Strata Agent and wrong advice we have been getting.
After reviewing the By-Laws I have found that there is an existing special By-Law for exclusive use of common property ( A balcony was built on top of the laundry roof for one units specific use). We are also using the Schedule 1 By-Laws.
I would like to amend the By-Laws taking in some of the new ones, leaving some of the old ones and putting in new ones.
The new By-Law I would like to put in is to make a hot water tank and some Air Conditioner Units compliant. There is a hot water tank for one of the lots that has been moved onto common property. There are also some AC units that have been installed on common property. No one has any issues with them and unfortunately the wrong advice was given by the strata manager that if no one has any issues with it you can go ahead and do it. I have since learnt that this is in fact wrong. What I want to avoid is someone new in the future making an issue about them such as a topic that was posted earlier this morning:
http://www.flatchat.com.au/forum/common-property/air-conditioning-unit-1/
I have done a search on the above mentioned issues and although I have found similar posts I have not found anything that answers my questions. Thank you in advance.
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Are you saying that you want to provide that the hot water tank and air conditioner units that have been installed without approval are ok?
The question then is – do you want to persuade the owners of the relevant lots responsible for those items going forward? This would require a special by-law for the respective items whereby each owner agrees that they are responsible for them. Each by-law would require a special resolution of the OC (you can also do an omnibus by-law)
The alternative is to acknowledge that they form part of the common property but as things stand, assuming there are no by-laws, that is the legal position anyway. I would suggest that is not a good idea. However, if they do form part of the common property the OC can remove them, which is a good bargaining chip to have when you are looking at persuading the relevant owners to agree to a by-law.
An omnibus by-law is one exclusive use by-law that covers all of the owners, and it then specifies the works/items to which it applies. So you have the one by-law and you say for Lot X this covers the air conditioner, for Lot Y this covers the hot water system etc. It can be less messy than having multiple special by-laws.
The owners of the items may take responsibility for them but legally they aren’t responsible, and it doesn’t bind successors in title, because there is no by-law.
I suggest you get a lawyer to help you.
I am in a building where it was do as you please. Of the 12 units, 4 installed air cons on common property. Years hence, another owner requested an aircon and a special bylaw was drafted.
The by-law, as written, is retrospective in that it makes the previous installs now the responsibility of the owners for repair and not the OC which could have been the case.
You just need to be sure that the relevant owners have consented to the by-laws, otherwise they aren’t enforceable. That is – where you introduce a by-law that applies to something that is already there, the current owner has to specifically consent to it.
@scotlandx said:
Where you introduce a by-law that applies to something that is already there, the current owner has to specifically consent to it.But, and please correct me if I’m wrong, if they won’t consent, you can tell them to get it off common property. Right?
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.
Yes that’s right, refer what I said above:
However, if they do form part of the common property the OC can remove them, which is a good bargaining chip to have when you are looking at persuading the relevant owners to agree to a by-law.
However you can’t enforce a by-law that has been unilaterally imposed without the owner’s consent.
I have a neighbour who bought their property, which had a reverse cycle air conditioning unit placed on common property. As far as I know, the unit has been there for some years prior to my neigbour moving in.
No-one can verify if there was approval or not from the SC or OC as to whether the unit could be placed there. And there is no bylaw specially concerned with AC units. There are, of course, old bylaws about “damaging” common property.
The current SC has now asked the new owner to remove the unit and repair the common property. What are their options regarding this?
In the absence of a by-law, this is now common property. The Owners Corp can remove the A/C unit and repair common property at their (the OC’s) own expense.
Alternatively, if the lot owner wants it repaired the the OC doesn’t have any fundamental objection, they can allow the lot owner to do so provided they agree to a special resolution by-law giving them ongoing responsibility for its upkeep.
The one thing that should not happen is that the lot owner gets the a/c repaired or replaced at OC expense.
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.
We had a by-law review and passed special resolutions at our recent AGM. I know they need to be registered but I was astonished when our strata manager (a large company) wanted $400 from what appears to be an ad-hoc company to register the by-laws. I would have thought you sent a PDF or a photocopy to the Land Titles people with a cheque for $10.
What’s right, please?
$400 is quite reasonable, registering by-laws is not simple, and the LPI won’t accept a pdf or photocopy. The document has to be signed by an authorised person and have the OC seal affixed, and you have to provide the certificate of title for the property. The LPI fee for lodgement is $138.80.
@strats all said:
Sounds like it may be a little bit out of my depth at the moment so I think I will just consult a lawyer to help with the new by-laws.A good place to start is to compare your current by-laws with the new model by-laws in Schedule 3 of the strata regulations.
Having said that, consulting an experienced strata lawyer (not just your local solicitor) will set you on the right road and pay dividends in the future.
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.
What do you do if new bylaws are deliberately not discussed at an SC meeting?
Our OC adopted the following as part of a longer rule (ACT-speak for bylaw):
… 7) The unit owner must at the owner’s cost repair and maintain any other item installed on common property and used only for the benefit of the unit. The unit owner must ensure that the item does not unreasonably interfere with the reasonable use and enjoyment of the common property by other unit owners or cause any significant adverse effect on the appearance of the common property or the safety of occupiers of the units or of the public, regardless of whether that installation has or has not been authorised by the OC. Examples of such items include, but are not limited to, air-conditioning systems, hot-water systems and awnings.
(8) The OC reserves the right to repair, replace or remove any of the items mentioned in sub-rules (1) through (7), and to remediate any loss or damage to the common property of the OC caused by the owner’s breach of those sub-rules, if that breach is not rectified within a reasonable time after a written request is made by the OC to rectify the breach. The unit owner must pay the costs of and incidental to the OC and its employees and agents to rectify the breach, which is recoverable by the OC as a debt due by the unit owner.
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