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Our AGM (to be held shortly) is to consider a change to the balconies, which in a couple of places have deteriorated and are in need of repair. The basis stated on the motion is stated as “a necessary repair”.
The proposal consist of a change to the balustrade, raising the new balustrade level (height) to be consistent with the current standard. That is fine.
However the proposal ALSO includes the addition of “Screens” to all the balconies, which are not currently part of the building common property.
This I understand is to help shield a couple of Lots on the Western Side from the “afternoon Summer sun”, and I understand was desired to be included by the current Strata Secretary who owns a Lot on the “Western side of the building”
Most Lots are not affected by this and several Lot owners are asking “Why is the “Shade” being included when it was not part of the original balcony, adds considerably to the cost and does not impact them.
1) Is the Motion required to be specified as a “SPECIAL RESOLUTION” requiring a 75% approval rate, because of the inclusion of the additional Balcony Screens, which would involves an “IMPROVEMENT / ADDITION to the common property”. (Its currently NOT stated as a Special Resolution)
2) Is the resolution with the Screens included “Out of Order” and as such should not be put”, & how would NCAT likely consider the matter.
3) Can the Motion still be considered by amending the motion, excluding the Balcony Screens ?
In my opinion your assessment is correct. Perhaps the Secretary already knows this …. and wants to do something a bit ‘cheeky’ hoping that no one will notice!
The Motion should be ruled Out of Order unless the second part of the Motion (i.e. the sun screens) is removed.
The Motion contains 2 separate issues and therefore should be separated into 2 Motions.
One Motion should deal with the Maintenance and Repair of the balustrade. The second Motion should deal with the Improvements to the Common property (with voting by Special Resolution).
If the Special Resolution fails then the Owners who wish to install sun screens can always submit individual Motions and By-laws to cover the improvements to common property, and pay for this improvement themselves.
Something to consider when approving the sun shades is whether the sun shades will offend the the architect’s original vision of the development. See here: https://www.lookupstrata.com.au/nsw-sun-shades-for-apartment-balconies/
I agree with Lady Penelope, there are two separate issues here, and the addition of the sun screens is an improvement to the common property.
If the two owners want those sun screens then they should be seeking approval to have them installed at their cost, with the attendant exclusive use by-law which makes them responsible for those sun screens.
Thanks Lady Penelope & Scotlandx for your input – greatly appreciated.
A second look and re-reading of the Agenda items and attachments (quotes), while being in essence as indicated above, may need a slightly different approach.
The Motion is actually: “That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to all balconies on accordance with XXX Consulting’s amended report (attached)”.
Quotes ranged from $53k to $87k.
Problem is that the XXX Consultants report DID NOT recommend Shades / Screens but each quote included them, presumably from a schedule of works provided. Only one has detailed cost breakup.
I still believe the Motion is OUT OF ORDER and needs a separate “Special Resolution” to cover the addition to Common property.
The consultants report noted in its preamble “The purpose of the inspection was to identify any areas of the slab for repairs prior to balustrade replacement”, indicating to us that the decision to replace the balcony has already been made. It did note some issued with some balconies (not all).
At a July EGM, a similar motion was proposed (with a single quote which included shades / screens sourced by the Strata Secretary) and was defeated, with the meeting requesting the SM to find out what the specific problem was with the balconies, and report back.
Its now appears to have developed a life of its own in line with the Secretary’s apparent desire (new balconies & shades).
I believe the SMgr at the AGM is unlikely to permit a change to the motion, and another Lot owner has suggested a Lot owners register a dispute for mediation with NCAT on the matter prior to the AGM to get the issue in a situation where it will be harder to circumvent.
Also the Current Committee does not hold meetings (suggested by the SMgr) and we believe there are many things that have been done which would normally require meetings. Lot owners are in the dark.
I sent a Motion to the S/Mgr well prior to the agenda being sent out requesting a Ctee member give a verbal summary of matters dealt with, but it (cheekily..) did not get onto the Agenda.
I have formed the view that it is likely that two parties are being cheeky… as you put it Lady Penelope, but it has serious consequences.
Your additional input would be appreciated.
Winston – You stated that the Agenda Motion includes the following:
“That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to all balconies on accordance with XXX Consulting’s amended report (attached)”.
I note particularly the word “necessary”. The sun shades would not be deemed to be necessary. Only the repair and maintenance of the actual balconies would be deemed to be “necessary”.
Incidentally, it is unclear from the Motion whether all balconies will need work or only those balconies that have been identified in the Consultant’s report. You may need to get this clarified at the meeting or in the amendment.
You are totally within your rights to raise the issue that either the wording of the Motion be changed (i.e. the Motion is amended) or that the Motion be ruled Out of Order.
From the OFT web site is this:
“Motions on the agenda may be amended at the meeting, except for:
- the subject matter of the motion
- motions determined wholly by pre-meeting electronic voting.
A person who may vote at the meeting may ask for a motion to be amended.”
In my opinion the Motion could be amended in the following way:
“That the Owners Corporation review and accept one of the quotations received to carry out the necessary balcony works to
all the identified balconies in accordance with XXX Consulting’s amended report (attached) and that the shades/screens are to be removed from the scope of works of the accepted quotation as these items are a SSMA 2015 [s108] “improvement”.
NB: The subject matter of the Motion has not changed.
You will need to raise a Motion at the AGM to amend the existing Motion. A Motion to amend a Motion is the only time that Notice is not required at a General Meeting. (See SSMA 2015 [Schedule 1 Section 18]. With the support of the other disgruntled owners you should be able to have the Motion amended.
If not amended then the Motion should be ruled Out of Order. Schedule 1 Section 19 states:
Chairperson may rule certain motions out of order
The chairperson at a meeting may rule a motion out of order if:
(b) any requirement of this Act to include the form of the motion in the notice of the meeting has not been complied with.
The inclusion of the sunshades in the quotes Motion is unlawful as sunshades are not a SSMA 2015 [s 106] and [s 119] repair.
Sunshades are a [s 108] improvement. As such a separate Special Resolution Motion should be passed that authorizes either (1) the owner’s corporation to make the improvement or (2) authorizes the owner to make the improvement and subsequently the owner makes a by-law providing for maintenance of the owner’s sun shades and the common property to which it is affixed.
Make it clear that unless the Motion is changed or ruled Out of Order that you and others will immediately seek an NCAT Interim Order to prevent any of the works from being carried out, or you will seek Mediation and Adjudication through NCAT.
Make sure that only those who are Financial (i.e. have no strata debt) are permitted to vote.
Can you get yourself elected to the Committee and remove those who are not fulfilling their responsibilities satisfactorily?
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