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  • #40853
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    4atRW
    Flatchatter

    We are a self managed block of 4. Two sets of owners want to replace all of their aging windows. The other two don’t.

    I realize that windows come under common areas. We wonder if we can setup a by-law which transfers responsibility and costs of window repair and replacements to owners.

    • This topic was modified 2 months, 3 weeks ago by .
    #40866
    Jimmy-T
    Jimmy-T
    Keymaster

    Most blocks want to retain collective ownership of windows and the like because they can more easily control the design and look of the windows, and make sure they are doing their job in protecting common property.

    You could possibly pass a by-law provided everyone agrees (four units of roughly equal unit entitlements effectively need unanimous agreement, since a vote of 25 per cent against would sink any by-law).

    But why would the people with the widows that need replacing do so at their own expense when it could be shared?

    On the other hand, if it makes the difference between getting it done or not …

    Just make sure your by-law contains clauses ensuring that any changes to the look of the windows are agreed by a majority of owners and agreement that the lot owners will repair the windows at their own expense immediately after defects or maintenance issues become apparent.

    #42251
    Avatar
    4atRW
    Flatchatter
    Chat-starter

    Thanks for your good advice
    We want to know more about the new by law.
    Is it better to have these drafted by a professional?
    Any idea on cost? Could you recommend someone in Sydney?
    Thanks

    • This reply was modified 1 month, 3 weeks ago by .
    #42259
    Jimmy-T
    Jimmy-T
    Keymaster

    I would say, yes, in this case, you would much better to get a strata lawyer to draft the by-law and I can’t go past our sponsors Sachs Gerace Broome who will do a good job for a reasonable fee.

    As for cost, I’d guess around $1000 (but don’t quote me on that).

    So make sure you have 100 percent vote in favour before you do it.  Might be easier and cheaper for all concerned to force the issue by getting everyone’s windows fixed at the same time.

    • This reply was modified 1 month, 3 weeks ago by .
    #42332
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    Flame Tree
    Flatchatter

    Seems like a over-reaction setting up a by-law that will get used once ever blue moon. Would you not be better to just write it up as a egm/agm Motion with the detail in the explanatory guff and just pass that? As I recently stated I don’t like complex-partial replacements which can be a real hassle over time as things change such as local requirements, parts redundancy, style preferences, engineering changes etc.

    #42353
    Jimmy-T
    Jimmy-T
    Keymaster

    There may be a third option which would be to create a “window” fund only for the repair of the windows belonging to the units that have opted out for now, to be spent when they need it.

    But really, there are very few options that make more financial sense than persauding the backsliders just to get it done.

    A spreadhseet that showed how much it would costs to get four sets of windows done at once, including scaffolding etc etc, compared to doing it all twice, and adding in a figure for inflation for the second round, might be persuasive.

    • This reply was modified 1 month, 3 weeks ago by .
    #42359
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    4atRW
    Flatchatter
    Chat-starter

    Thanks for you advice Flame Tree

    I agree that the by-law seems excessive. I also like the idea of using the AGM motion, but I’m not sure how it would work. The scenario is that the 2 owners (units 1 and 3) who want to go ahead with repairs are happy to pay for them out of their own pockets, but don’t want to pay again (from the Strata sinking fund) if new owners in units 2 and 4 want repairs to be paid for from the Strata sinking fund and a special levy. The by-law seems the only way to protect owners 1 and 3 from potentially paying twice.

    #42371
    Jimmy-T
    Jimmy-T
    Keymaster

    Flame Tree wrote:

    Seems like a over-reaction setting up a by-law that will get used once ever blue moon. Would you not be better to just write it up as a egm/agm Motion with the detail in the explanatory guff and just pass that?

    General meeting motions do not have the power to ascribe responsibilty for common property to individual owners. You would need every owner to agree to this in a legally binding agreement passed as a special resolution or by-law.  That is the law (Section 108) and you can’t just ignore it because it seems excessive.

    That is the only way to avoid subsequent owners coming in and saying they don’t agree with the arrangement and that it doesn’t stand up to scrutiny from a legal point of view and they want the owners corp to fix their windows, meaning the owners who have already paid for their own windows have to pay twice.

    That said, I reckon we are over-thinking this.  The Act says common property has to be repaired.  If the other owners won’t agree, then either or both of the owners with faulty windows can take the owners corp to NCAT and seek orders.

    And again, it’s a matter of sitting down with a spread sheet and explaining to the recalcitrants how much more it’s going to cost if they don’t just go ahead and pay for the repairs collectively.  Otherwise a by-law  or special resolution with each owner taking responsibility for their own windows is the simplest and least expensive way forward.

    • This reply was modified 1 month, 2 weeks ago by .
    #42377
    Jimmy-T
    Jimmy-T
    Keymaster

    One final thought, if you trawl through the last 10 years of Flat Chat you’ll find a stack of posts from owners who’ve had to deal with the fallout from previous arrangements that were done on a nod and a wink, but didn’t stand up to the test when new owners came in and applied basic strata law to their situation.  Get it right, right at the start, and save yourself grief down the track.

    #42421
    Jimmy-T
    Jimmy-T
    Keymaster

    I am now feeling a bit dim – this is a lot simpler than it seems … provided nobody pays for their own windows to be fixed.

    If the owners corp pays for the windows to be fixed (as it should) then it will all even out when the other owners need their widows repaired.  If they don’t want the windows fixed, that’s up to them … but the windows aren’t theirs to begin with.  They’re common property.

    So forget all this stuff about paying for the windows yourself. Raise the money from levies to pay for the windows and do it again later when the other windows start to fail.  Nobody loses, nobody pays twice – it’s really that simple.

    #42799
    Avatar
    bluehouse
    Flatchatter

    4atRW, you can get a special by-law to enable those owners who wish to install new windows to pay for their own windows. But as far as I am aware there is no way to make the windows of the other owners stop being common property against those owners will, so those who want new windows now will have to pay (via strata fund or levy) down the track when the remaining owners need new windows. In a four lot scheme all owners would need to agree if you want a special by-law to pass responsibility for windows to individual owners to cover all of you, and it would not be in the remaining owners best interests to do so.

    Note that the special by-law would have to pass responsibility for the common property to the owner, so they are able to pay for the windows themselves, but the owner of their lot would then also be responsible for any future repairs and replacements.

    To add to Jimmy’s warning above and as someone in a scheme where many things were agreed to informally in the past, without special by-laws, it can be a nightmare to untangle issues down the track. New owners who have no way of knowing about the informal arrangements (because they aren’t included in the by-laws) are quite fairly able to apply strata law to get their normal rights (such as to have windows repaired by strata) and the informal agreements can’t stand up to that.

    #42801
    Avatar
    bluehouse
    Flatchatter

    I think there is also an issue of whether the replacements are needed or just desired. 4AT RW did not say the windows need repairing, they only said some want to replace them.

    It makes a difference to options to proceed whether you can say the windows need replacing. If there are problems caused by the condition of the windows, or they are faulty, it is Strata’s responsibility to repair or replace them because they are common property – no question about it.

    You can vote on how, and who fixes them, but it is not optional whether they are fixed, and fixed in a reasonably short time frame. Then Jimmy’s last post is the simple way ahead – when it is needed, the other owners can have theirs fixed down the track.

    But if it is a value judgement (eg aesthetics) about whether people want them replaced, and why, then different owners may disagree about the need for it, and have different opinions on the spending of Strata funds on a non vital problem.

    Which is the case here?

    • This reply was modified 1 month, 2 weeks ago by .
    #43068
    Avatar
    4atRW
    Flatchatter
    Chat-starter

    Jimmy and Bluehouse, thanks for your valuable and helpful advice on this.
    A big part of the problem is that the sinking fund doesn’t contain sufficient funds for the repairs ($40k for all 4 units), so a special levy would be needed. Two owners are content with their windows, hence the stalemate.

    We want a solution that makes everyone happy.

    Am I right in saying that the by-law solution is the best way forward? That is, a by-law transferring window responsibility from common property to owners.

    • This reply was modified 1 month ago by .
    #43085
    Jimmy-T
    Jimmy-T
    Keymaster

    In your circumstances, a special resolution by-law may be the best way forward, but you’d have to include certain provisions.

    1. That ALL owners agreed and signed up to it.

    2. That this would apply to the lots into the future, regardless of the terms of sale of a property.

    3. That the owners would agree to keep the windows in good repair, both visually and physically.

    4. That individual owners would not change or replace the windows without the prior agreement of the other lot owners – this is to maintain uniformity of appearance.  Fashions in window designs (especially prefabricated windows) change as different materials are used.  You don’t want the the face of your building to look cock-eyed from outside.

    Now, having said that, you’re probably going to need a lawyer to draft your by-law and that’s another expense. Sooner or later you are going to have to raid the biscuit tin and it might be worth working out what the total costs per unit are going to be in the various scenarios, then sitting down and talking it through.

    In the worst case, you might end up taking yourselves to NCAT to force a special levy, and you want to avoid that if you possibly can.

     

    • This reply was modified 1 month ago by .
    #43089
    Avatar
    kaindub
    Flatchatter

    It’s unlikely a bylaw transferring Windows to owner property would be legal or upheld by NCAT unless all owners agreed. That means all 4 owners , not just the usual 75%, would have to agree to the bylaw.

    If the windows of the affected lot owners are in a state of disrepair, then they must be fixed. That’s the obligation of the OC. If there are insufficient funds, then a special levy needs to be raised. It’s no defence of the OC to claim lack of money.

    But it seems to me that two owners want the Windows replaced largely on aesthetic grounds. In that case the owners can pay for it themselves.

    A bylaw may not be necessary, if the OC decides to own and maintain the Windows in the future. The other owners and the OC are getting replacement windows at no cost, putting off a cost of the future. And if the Windows are installed correctly, the maintenance in the medium term will be less than if they were not replaced.

    The owners paying for the Windows my feel aggrieved in the future if the other Windows are replaced by the OC at the OC cost.

    Final word. An owner does not own the common property. An owner may be dissatisfied with the style, colour or aesthetic of the common property but one bought into the strata on an “as it is” basis. To expect that the common property can be changed to suit their tastes is folly.

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