This topic contains 3 replies, has 2 voices, and was last updated by Jimmy-T 2 years, 9 months ago.

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    who retains the property ownership once a by law has been approved? My understanding is that internal renovations, flooring etc that are contained within the air space of a lot are the owners responsibility thereafter.

    works such as tiling on a external surface, eg balcony building a car space enclosure on common property etc,  ..that forms part of the common property but with exclusive use of a lot owner still remain the property of the OC.

    when two lawyers dispute this ..what chance does an owner have to comply and submit a by law for approval? 

    very interested in your advice thank you 

    #25222
    Jimmy-T
    Jimmy-T
    Keymaster

    You need to separate the concepts of ownership and responsibility for maintenance. 

    The OC owns common property until such times as it sells or transfers ownership to another person or company.

    In terms of tiles on floors this SCA publication, Who’s Responsible, is very helpful, but basically it says tiles on the floor and external walls are the responsibility of owners.

    Exclusive use by-laws allow individual lot owners to enjoy exclusive use of parts of common property but, to be legally valid,  they must have a clause saying who is responsible for maintenance of the common property for which exclusive use has been allowed.

    The default position is that the OC is responsible unless the benefitting lot owner is named as being responsible in the by-law.  

    However, the intent of the law is for people taking over common property to take over responsibility for its maintenance but for the OC to retain responsibility if they are daft enough not to insist that is part of the by-law. That way, responsibility is always clear (if not entirely fair).

    All of the above is why exclusive use agreements made on a nod and a wink should never be entertained.  Sales of properties and changes of EC and OC membership leave both parties wide open to disputes that cost time, energy and money and are totally unnecessary.

    On the question of lawyers disagreeing, there are lawyers who work in strata, others who live in strata and a third group who’ve heard about strata.  All of them think they are experts but only one group is likely to give you the right answer … provided you ask the right question.

    #25223

    Thanks Jimmy.

    I have read the SCA but again there are a lot of so called” grey areas” . Ask the SM and they dodge  questions because they are not lawyers, although one was heard to recommend to OC not to pass a by law with amendments agreed to…i.e incorrect spelling. NCAT suggested this was a good compromise in order to find a resolution for all concerned.

    Yes i understand the difference. My understanding is that common areas that have exclusive use for one lot owner belng to OC as part of the strata plan. Maintenance refers to who has the ongoing maintenance of a lot.

    A change that requires a by law on the common area i.e. still remains as common area pertaining to that lot. However  the  change in the by law where the owner undertakes maintenance and repair of the changed surface  ( tiles/ pavers etc) that by law does not include change of ownership to owner as the undersurface still remains part of the OC property…i.e balcony structure, drainage etc.? 

    the lawyers involved…. Both leading strata lawyers! One, I suspect , who thrives on ongoing litigation! 

    what chance do we have? Going to NCAT? That is one flip of a coin where not everyone is a lawyer and often miss the critical and supplementary evidence.

    Thanks so much for your continued advice

    #25224
    Jimmy-T
    Jimmy-T
    Keymaster

    @justsaying said:

    the lawyers involved…. Both leading strata lawyers! One, I suspect , who thrives on ongoing litigation! 

    what chance do we have? Going to NCAT? That is one flip of a coin where not everyone is a lawyer and often miss the critical and supplementary evidence.

    Yes, there are differences in strata lawyers too – some like to fight and win, some prefer to mediate and reach some acceptable compromise. You pays your money, you makes your choice.

    The reason there are so many grey areas in strata law is that NCAT and its predecessor the CTTT were buffers that prevented courts from setting precedents that could be used as benchmarks in subsequent cases.

    You’ll find the few areas of rock-solid strata law, such as the OC’s duty to maintain and repair common property, come not from the law itself but from case law established in the Supreme and even higher courts.

    The fundamental question on your issue is “pain versus gain” – is it worth all the hassle, frustration and expense (in time and energy as well as fees) even when you know you are right?

    Never forget the litigating lawyer’s five favourite words: “It’s a matter of principle …”

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