22/06/2019 at 5:28 pm #38265
So as a small (six unit) OC we’ve been fairly lassiez faire on getting things done and giving approval. Basically if it’s your unit you are responsible. This includes things that would normally be considered common property such as the roof, walls and external fixtures e.g. car port. All units are ground level and single story with their own backyard.
If someone wanted to do something that involved their joined neighbour then it was discussed between the parties involved and got done.
Several owners have cooperated on things such as replacing their roof tiles and other major repairs without OC involvement.
When an owner wanted to install roller shutters on their windows no one had a problem as long as the colouring was complementary to the building. The only comment when completed was, ‘I also want to get them and will when I can afford it‘.
Things such as fences/external pipes/driveway/insurance and common property garden are maintained by the OC.
The new reality: two out of six owners have died (natural causes in their old age) and their units will soon be sold. At least one of them will require major renovations with several items that would ordinarily be considered common property needing major repairs. E.g. their roof needs complete retiling and there are visible cracks in an external wall.
We want to continue on as we always have with the new owner bearing full responsibility for their unit, noting that other owners have done similar work without seeking OC funds.
If the OC were required to fund these items there would need to be a special levy and a great deal of resentment by the remaining owners.
So, how do we continue as we have with formal notice to prospective buyers that they will be responsible for all the costs of the required renovations without OC funds being made available?
We will be having an AGM next month and it would be good to get this finalised before any ‘for sale’ notices are posted.22/06/2019 at 5:33 pm #38267
I assume you are in NSW, in which case I don’t know the answer. I would be looking to see if you have a provision like in the ACT’s Unit Titles (Management) Act s.25 whereby “An owners corporation for a units plan may, by special resolution, exempt itself from 1 or more maintenance obligations … if the exemption is not reasonably likely to have a significant adverse effect on (a) the appearance of the common property; or (b) the safety of occupiers of the units or of the public.”
Consistent with this provision, our OC adopted a rule (aka by-law) that required unit owners to maintain their individual paths and driveways that connected to the shared paths and roads: “The unit owner must ensure that their individual access structures do not unreasonably interfere with the reasonable use and enjoyment of the common property by other unit owners or have any significant adverse effect on the appearance of the common property or the safety of occupiers of the units or of the public”, deliberately echoing the words of the Act. We did not want the OC to assume responsibility for people’s paths where they crossed a few meters of common property, especially as some were cheap but entirely adequate simple gravel paths/driveways while others were concrete or expensive pavers or stone or bitumen or involved steps etc.
22/06/2019 at 8:52 pm #38270
- This reply was modified 3 weeks, 3 days ago by Sir Humphrey.
Vicres is in Victoria.
In Victoria a “unit” is usually a free standing home (a villa) in a horizontal strata subdivision.
Vicres needs to check their Plan of Subdivision but typically in such developments the lot structures belong to the lot and are not common property.22/06/2019 at 9:35 pm #38272
I agree with Austman. Check your development plan.
A similar situation exists in QLD where developments such as villas and some townhouses can be registered under a Standard Format Plan. Maintenance responsibilities are very different from Building Format Plans. Building Format Plans usually apply to multi storey developments, and some town houses.
However, if roof maintenance is part of the OC responsibility and there is no By-law etc that indicates otherwise then the ‘new’ owners have a legal right to request that the OC undertakes its responsibilities.
I can understand the other ‘old’ owner’s concerns however, the ‘new’ owners were not party to the original ‘gentleman’s agreement’ made between all of the previous owners and they probably had no knowledge of them when they purchased their Lot. You may be able to win the ‘new’ owner’s agreement to the previous maintenance but they would not be compelled to agree if they chose not to.
In principle the Owners Corporation <u>must</u> maintain the common property. My suggestion is that if an agreement can be reached with the ‘new’ owners then a By-law (approved by Special Resolution) be created ASAP to prevent this situation from arising again, as suggested by SH.
Seek legal advice when writing this By-law as it may be challenged if not carefully constructed. Be aware that there are some situations where an OC cannot opt out of their duty to maintain the common property, even with a By-law, and these include situations where the safety of any building, structure or common property in the strata scheme are involved.22/06/2019 at 10:23 pm #38273
Ah. I missed that ‘Vicres’ might have suggested Victoria (slaps forehead). So, Victoria has some distinction like the ACT’s class A and class B units?
In the system I am familiar with, class B, is generally townhouses, generally horizontal strata, and the unit owner is responsible for repair and maintenance of the structures. IE. my roof and walls are mine to maintain. In the case of a party wall with an adjoined neighbour we have a shared responsibility for the wall.
In contrast, ‘Class A’ is generally vertical strata, typically blocks of flats/apartments, and you only ‘own’ the volume of air in the unit.22/06/2019 at 10:53 pm #38274
I missed it too, SH.
Victoria has the additional interesting conundrum of the ‘benefits principle’.
“The bottom line is this:
Before issuing the special levy the OC was required to consider whether the works wholly or substantially for the benefit of some or one, but not all, of the lots;
- if not, fees must be based on lot liability;
- if so, fees must be charged on the basis that the lot owner of the lot that benefits more pays more.
- if the OC fails to consider to consider the application of the legal principle it has committed a fatal error and the fees are not payable.
The OC must act in good faith and exercising due care and diligence (see Grundl [at 16]) and honestly and reasonably in considering whether the benefit principle applies (see Grundl [at 20]).”26/06/2019 at 7:42 am #38308
Thanks all, as my non-de-plume suggests I am in Victoria and as noted by SH it would appear to be a Class B type with all horizontal residences and one adjoining wall between them. E.g. 1&2, 3&4 etcetera.
Will do some more research and let you know how we proceed.