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Our EC have chosen to impose an additional by-law to our existing by-laws to make it difficult to enter lockable common property areas to which they have given access to their friends (who moved into the new complex of 21 early in the piece) and to which they are endeavouring to make it difficult for access by 2 x apartments in particular who have been denied access or storage in these areas. It reads:
SPECIAL BY LAW NO 2 Regulation of Keys
1. If there is any inconsitency between this by-law and any other by-law in force for the strata scheme, the provisions of this by-law shall preval to the extnt of that inconsistency.
2. Goes on with definitions
3. In addition to the POWERS, AUTHROITIES, DUTIES 7 FUNCTIONS confered or imposed on the Owners Corpoation pursuant to the Act, The Owners Corporation shall have the additional powers, authorities, duties and functions as follows:
a) The duty to store and regulate keys and
b) The power to control and manage the locked areas.
4. An Owner or Occupier wishing to access a Loced Area must make a request in writing to the Secretary of the Executive Committee
5. To be valid and effective, a request for access to a locked area must include the following information:
a) The name of the owner or occupier making the request
b) the Lot number of the owner or occupier making the request
c) reference to the locked area in question
d) the purpose of the intended access and
any other information required in the reasonable opinion of the EC
6. The EC must consider all reasonable requests for access and must notify the owner or occupier of its decision in writing within fourteen (14) days of receiving such a request
7. In considering whether to approve a request for access to a locked area, the EC must consider the following things:
a) safety of person accessing the locked area and
b) security of the property stored in the locked area
The above is not an exhaustive list. The EC may consider other factors when making a decision about a request for access to a locked area.
8. When approving a request, the EC may impose conditions on the approval including the following:
a) a nominated time and date for access
b) an appointed EC member to accompany the owner or occupier during access to a locked area and
c) a time limit for access
The above is not an exhaustive list. The EC may impose other conditions
9. An owner or occupier must not access or attempt to access a locked area other than as considered by this by-law.
This was put together by a firm of property lawyers [name withheld] .
Personally, I think this give the EC way too much control, it enables those who have personal items stored in these lockable common property areas exclusive use without paying for the privilege and it could mean they can dictate who can access other lockable areas like the games room or pool area. When is an EC a self serving EC and what do we do to prevent this onerous by-law being introduced. The EGM is tomorrow night (18th July) and they will have the numbers to vote for this as the people voting in favour are the ones who have items stored in these areas.
NB: This EGM was the outcome from mediation by Dept Fair Trading to resolve access to lockable common property areas.
Your input is appreciated
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Replies
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The simplest answer is to get 25 percent of owners to vote against it either in person or by proxy.
You are certainly entitled to ask the proposers at the meeting to cut through the jargon and explain a) what this really means and b) what the implications are for other areas and the general running of the building. It sounds like the EC is being empowered to lock off any areas of common property they see fit and that is going way too far.
You may have left it too late but I would also be proposing an amendment to say that anyone using common property for the storage of private property should pay reasonable rates (ie, a bit less than commercial rates) for doing so. This is common practice in other buildings.
The worst thing about this is that the EC appears to be asking owners to give it unlimited powers to impose conditions on access to common property as and when it sees fit – and that, I reckon, is legally a bit iffy.
However, the OC does have the power to establish by-laws limiting access to common property. The key questions in this case are why and who's benefitting and if it's only benefitting a select few, is that effectively defrauding the majority of owners.
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 is essentially an “empowering” by-law.
Under section 43 of the Strata Schemes Management Act 1996, by-laws may be made in relation to “the details of any common property of which the use is restricted”.
An owners corporation can also include conditions such as the executive committee approval with respect of access. However, you make a reasonable point in stating that the EC members currently on the committee may change therefore shifting this power to any new EC members in the future.
If you are going to propose to amend the by-law, you may want to suggest that the Strata Manager be delegated this power to avoid any conflicting interests of EC members.
Simone Balsara
Lawyer
TEYS Lawyers, The Strata Law Experts
02 9562 6500 – 1300 TEYSLAWYERS
Suite 73, Lower Deck, Jones Bay Wharf
26-32 Pirrama Rd, Pyrmont NSW 2009Thank you Simone however I fear the EC Committee are about to put ‘mates’ of theirs as Strata Managers replacing our current ones so there will never be a fair go for those in the complex not currently in favour. It seems they are determined to go to any length to ensure that 2 x units do not have their legal rights to anything because they do not like us. They are however, missing the point that one day this may all turn around and bite them – particularly when they are too old and sick to be on the EC anymore. You did not mention the ‘exclusive use’ of the lockable common property that the favoured ones have as well. This onerous by-law was actually suppose to address the issue after it was raised at mediation, however they have chosen only to address the issuance of keys. It seems some do not learn their lesson but in their blind hatred, continue to dig a deeper hole for themselves. I can only hope that some other Owners start to see them as we see them and start to question their behaviour. I live in faith. If you want the background to the Lockable Common Property Areas – you can view my input under Common Property. I thank you for your input. It is most useful and encouraging.
Macfadyen said:
Thank you Simone however I fear the EC Committee are about to put 'mates' of theirs as Strata Managers replacing our current ones so there will never be a fair go for those in the complex not currently in favour.
Here is one of the real problems in strata that neither the Act no CTTT will address; the clique running an SP as their little kingdom.
Is there anything that leads to more dysfunction in an OC than people looking after their mates while treating with disdain those not in favour.
Flat Chat is littered with account after account of people not “in” being treated as lepers; stories of those “in” having their nests feathered at the expense of others.I often state to CTTT that this sort of behavior is dysfunctional management but I would say the practice has become so common place and wide spread it is now an elephant in the room.
You have 3 options in response to this bylaw:-
1 get support from enough co owners in your building to repeal the bylaw
2 apply for approval to use the locked areas and if approval is denied go to the cttt to have the ec decision to withhold approval overturned on the basis that it is unreasonable
3 go to the cttt to have the bylaw overturned on the basis that it is illegal or beyond the power of the owners corp or should not have been made
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