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Common Property - Trees & Airconditioners
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shedsrus
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27/06/2018 - 11:17 am
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Hi FlatChatters, apologies for the length of this but hopefully it all relates and makes some sense.

I have read through a number of CP issues here in an attempt to answer my current problems and believe I have the answer but would like confirmation, if possible, on a few points.

Scenario 1:

In preparation for landscaping works a couple of year ago a new owner-couple asked about planting a particular tree species around their Lot.

Other longer-term owners advised not to do this as this species had caused problems previously in the 14-year strata’s life and had been removed. Advice from the landscaper also stated not to do it in the intended location due to potential problems with storm-water pipe location directly under plus block retaining-walls in close proximity.

Subsequently, the owners went ahead with the plantings.

At out next AGM (2017) their actions were raised and, following some discussion, a narrow majority agreed to let the trees remain on the proviso that the Lot-owners took responsibility for all maintenance & repairs to the trees plus repair any CP damage caused by the trees.

Our latest (2018) AGM is upon us. Having read the minutes of the last AGM, which we must accept as true and correct, I see that the previous meeting appears to have agreed to only maintenance of the trees and nothing else.

Given that I believed we had wanted and agreed that the strata was not to be responsible for damage caused by the trees, the minutes appear not to be true and correct.

Question(s):

  • Have I a fair case for objecting to the minutes as-published?
  • Can the meeting ignore my understanding and leave the situation as-is?
  • If the minutes are amended, is a by-law required to place the onus back on the owners or is some other “special” approval available that has legal merit?

NOTE: I have read an amount around the subject and interpret things to mean we would absolutely need a by-law (at some cost) plus a signed document from the owners agreeing to our requirements.

  • Is my understanding correct?
  • Who gets to pay all the costs of by-laws and legals?

Scenario 2:

Another, first-floor, owner is wanting to install an aircon unit.

Their intended place for the compressor is affixed to an external wall of the relevant bedroom, some three-plus metres above the ground.

Background:

There is a small balcony outside the bedroom which could be utilized but this has been converted into a secluded garden space and so-far the owners are refusing to consider it as an option.

Another owner has compressors installed at ground-level, the location of one of which could accommodate a second unit with no issues, but the applicant is averse to paying the extra cost for pipe-work and electricals and I have issues with the visual aspect of conduits running everywhere.

If the compressor goes on the wall I have concerns about this being a precedent for other installs and, whilst this one may not be so obvious, other owners may want to do the same using similar, but far more visible locations.

Research has raised the potential need for council approval due to the intended height of the compressor install and my local certifier has gone some way to agreeing but would need to check more fully, at a cost.

Question(s):

  • Has anyone experience of this particular scenario and what was the result?
  • It would appear a by-law would need to be created plus, as per the above tree issue, a document agreeing to responsibilities and signed by the Lot owner. Is that correct?
  • If council approval is required is it the OC who foots the bill or the lot owner?
  • Can the OC insist the compressor go on the balcony?

Thanks in advance.

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JimmyT
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27/06/2018 - 2:51 pm
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shedsrus said

Question(s):

Have I a fair case for objecting to the minutes as-published?

If they are not accurate and don’t reflect the resolution at the previous AGM, then yes.  The easiest thing would be to have them amended before the meeting, if possible.

Can the meeting ignore my understanding and leave the situation as-is?

Yes, but that would leave owners open to accusations of not acting in good faith which could make them personally liable if they have knowingly ignored the facts and then it costs the OC as a consequence.  Make sure you have something in writing that you can send to your secretary and have at least noted at the meeting.

If the minutes are amended, is a by-law required to place the onus back on the owners or is some other “special” approval available that has legal merit?

Yes.  You need a special resolution by-law that makes sure the current owners and anyone they sell to takes responsibility for the trees.  If they refuse, rip the trees out.

NOTE: I have read an amount around the subject and interpret things to mean we would absolutely need a by-law (at some cost) plus a signed document from the owners agreeing to our requirements. Is my understanding correct?

Yes.  A by-law of this kind can only be passed with the written approval of the other party

Who gets to pay all the costs of by-laws and legals?

They do – after all, they are tho ones who are benefitting and no one else is

Scenario 2:

Another, first-floor, owner is wanting to install an aircon unit. Their intended place for the compressor is affixed to an external wall of the relevant bedroom, some three-plus metres above the ground.

Question(s):

It would appear a by-law would need to be created plus, as per the above tree issue, a document agreeing to responsibilities and signed by the Lot owner. Is that correct?

Probably, if it’s going to be installed on common property (e.g, a wall)

If council approval is required is it the OC who foots the bill or the lot owner?

The lot owner.  They want the permission so they pay for it.

Can the OC insist the compressor go on the balcony?

No, not directly, but they can refuse permission for it to go anywhere else, either because it would be on common property or because it would be visible from outside the lot.

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shedsrus
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03/07/2018 - 10:40 am
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Thanks Jimmy for your input here.

Our AGM was held last night and the results for both scenarios were equitable to all parties – motion redrafted at meeting, responsibility for trees agreed-to and air-con going on the balcony.

The thing is, it was only by quoting what I found here on Flat Chat and your words during the discussions that we eventually gained confirmation from our Strata Manager of what was required to tie everything down. Without the knowledge we didn’t know what questions to ask to end up with a valid and enforceable vote.

All that’s left to do now is manage the owner wanting to re-configure their balcony to enclose it and make it part of their bedroom.

Anything I need to know there?

Thanks again.

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JimmyT
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03/07/2018 - 12:52 pm
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shedsrus said
All that’s left to do now is manage the owner wanting to re-configure their balcony to enclose it and make it part of their bedroom. Anything I need to know there?

Firstly, this will require council planning approval because it is changing the floor plan of the apartment AND changing the external appearance of the block.  The Strata Committee’s response to the DA application is usually taken very seriously by the council.

Then there is your own internal machinations.  The Owners Corp is perfectly entitled to approve or deny applications to change the outward appearance of the building (council approval notwithstanding) and to decide whether it wants common property (the balcony) to be taken over in their way (ditto) and under what circumstances, such as written agreement by the lot owners to maintain and repair in perpetuity.

In other words – if your committee doesn’t want it, they can block it.  If they don’t mind, then they need to make sure all the special resolutions are in place to protect the Owners Corporation going forward.

BTW, your strata manager should be giving you all this information. If they aren’t, why are you employing them?

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twosailram
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04/07/2018 - 2:38 pm
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Re some of the issues raised, whilst apparently solved for Shedrus, others may have similar situations.

Re minutes, the problem of having them changed before the meeting is copies of the minutes would have been distributed after the relevant meeting, and you cannot control accurate amendment of each copy issued.

A better way is normally at the start of AGM, EGM, SC meetings, there is a motion to accept the previous minutes. If they are in error, one normally draws attention to the error, and if agreed by those who attended the previous meeting, the amendment is written into the minutes of the current meeting by the secretary.

Re by-laws affecting common property, one Section of the Act is particularly relevant is 149, which allows the OC to go to the tribunal to get a by-law registered even when the concerned owner refuses consent for the by-law.

Also, re air conditioner compressors, most councils use the state rule that limits wall hung units to max height 1.8 m above ground

refer link https://www.legislation.nsw.gov.au/#/view/EPI/2008/572/part2/div1/subdiv3

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JimmyT
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04/07/2018 - 4:32 pm
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twosailram said
Re minutes, the problem of having them changed before the meeting is copies of the minutes would have been distributed after the relevant meeting, and you cannot control accurate amendment of each copy issued.

This applies to strata committee minutes but the problem with AGM minutes is that not every scheme issues them until the next AGM, by definition, a year later, by which time any inaccuracies may not only have been forgotten but acted upon.

It might be better for schemes to adopt a protocol by which a draft of the AGM minutes is issued before the next committee meeting so that owners have a chance to dispute and discuss any that are felt to be inaccurate, with the AGM still able to vote on the final draft.

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