- This topic has 10 replies, 5 voices, and was last updated 2 years, 10 months ago by .
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Hi Forum
Is there a section of the Act that protects an individual owner when that owners lot is adversely affected by the addition or change to common property.
- This topic was modified 2 years, 10 months ago by .
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We’ll need more detail. Does it directly affect your lot or indirectly? For instance, have they moved a fence on to lot property or built a structure that now overshadows your property without touching it?
Your question is a bit vague which is I think why no one has answered it.
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.
- This reply was modified 2 years, 10 months ago by .
From your description, it seems you have been adversely affected by the common property addition.
And you possibly have a case against the OC.
However it’s not as clear cut as pointing to a section of the act and getting relief.
You should engage a good strata lawyer to advise you. If you decide to pursue this action, then it’s probably going to be an expensive exercise because of the technical nature of the dispute.
As a matter of interest, what outcome do you want?
Somewhere in the SSMA I recall reading that a CP addition must not impact the livability of an individuals lot.
I can’t find that in those words but it doesn’t mean that the responsibility doesn’t exist in a combination of a number of sections of the SSMA, the Regulations and the Strata Schemes Development Act.
You really need to speak to an experienced strata lawyer and there are a couple of excellent ones advertising at the top of this page.
Just make sure that if you do end up at NCAT, you apply for costs.
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.
Since you have mentioned your age, I understand your hesitancy in tackling the issue head on. A fight against the OC is draining enough on younger and fitter people.
Unfortunately, the law does not deal with what is morally right, only what is right in law.
Even if there was some clause inthe act for your dilemma, it’s often necessary to take legal action to enforce your rights.
A good lawyer will be your best asset, but be aware that legal action will take significantly longer than you expect; it will be costly to you since you have to pay your lawyers and experts before you are awarded costs, and there is no guarantee of success.
Before talking to your lawyer, read s.90 of NSW SSMA carefully and you’ll see that you might be able to get the OC’s costs charged only to the culprits, perhaps the committee members.
Before talking to your lawyer, read s.90 of NSW SSMA carefully and you’ll see that you might be able to get the OC’s costs charged only to the culprits, perhaps the committee members.
Section 90 is there to prevent owners who take legal action or are subject to it, and win their cases, from being charged their share of the legal fees that would normally be distributed according to unit entitlements. I have never heard of committee members being isolated and charged with the costs of legal action they have either instigated or defended.
The committee acts as representatives of the whole owners corporation (Section 36) while Section 260 specifically states that the officers and members of the strata committee, if they have made an error in good faith and within the restrictions of strata law, can’t be subjected to any “action, liability, claim or demand.”
If costs were awarded, then they would be against the whole owners corporation with the possible exception, under section 90, of the plaintiffs. If the other owners have a problem with that, then they should think more carefully about who to elect as committee members.
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.
I agree with ‘Talk to a lawyer’.
I suspect that the remedy might come from common law or other legislation, not specifically strata legislation. The OC is one ‘legal person’ who has done something that had an adverse effect on another person (you).
I think you would be greatly helped by having some sort of expert report that documents and demonstrates the effect of the portico on your unit, even if you think it is all pretty obvious. I have the impression from a few visits to the Tribunal that they very much prefer having a sworn expert witness who can provide technical advice. They don’t seem to like nearly so much well reasoned and evidenced arguments from non-experts, even if those non-experts are intelligent and the technical matter is not ‘rocket science’.
I would also assume on the face of it that it was not obvious before that the addition of the portico would have any adverse effect on any unit but it was an obvious benefit to the owners generally. IE I think it can be assumed that there was no malice involved. However, that should not mean that there should not be some sort of compensating remedy now that it seems there was a detrimental effect to you.
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