The following question is from an NSW strata lot owner enquiring about alterations to common property in NSW. Thank you to Leanne Habib, Premium Strata for providing a response.
Question: This site recently replied to an SA question about Common Property Alterations. Is the response also applicable for alterations to common property in NSW?
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I recently read the SA article about common property alterations and a single lot owner’s vote overruling a majority decision. When reading the post, I wondered whether the reply is also applicable when it comes to alterations to common property here in NSW.
The SA post can be found here – SA: Q&A Common Property Alterations – Can a single owner veto a decision?
Answer: The balance of decision making power by an owners corporation is by simple majority.
Changes to common property in NSW and Types of Resolutions
The NSW position regarding changes to common property are as follows:
- Repair & maintenance of the common property = majority vote by ordinary resolution of the Owners Corporation
- Enhancement of the common property, additions to, altering or erecting structures upon the common property = special resolution of the Owners Corporation
- Structural changes, works which affect the external appearance of a lot or which detrimentally affects the safety of the building or any works which involve waterproofing = a by-law is required such by-law to be passed by special resolution of the Owners Corporation (and then registered on the folio of the common property)
In NSW, unless a unanimous or special resolution is expressly required, then the matter may be resolved by simple majority ie an ordinary resolution.
In NSW few unanimous resolutions remain.
A unanimous resolution is one which is passed and against which no vote is cast (unfinancial owners may vote).
Matters for unanimous resolution include:
- distribution of surplus funds
- amending or repealing an Order from NCAT
- various building insurance provisions
- waiver of capital work fund requirement for a 2 lot scheme.
A special resolution (a motion passed and against which no more than 25% of the value of votes are cast against – unfinancial owners cannot vote) is required as per the above and, among other things:
- any “dealings” with the common property eg transfer, leasing, licencing, subdivision, consolidation, exclusive use of common property etc,
- an Owners Corporation absolving itself of the requirement to repair & maintain the common property
- vacation of a strata committee member(s) or officer(s) office
- any and all by-laws and any repeals and amendments thereof
So, the balance of decision making power by an owners corporation is by simple majority (again, unfinancial owners cannot vote).
This post appears in Strata News #199
Question: Disabled Access – Can I Install a stair lift on common property?
I am considering paying for the installation of a stair lift on common property, covering 3 flights of steps. I am disabled as I am an arm amputee and suffer from an osteoarthritic ankle.
In the event that the proposal for disabled access is not well received by the Owners Corporation, would I have recourse to have a stair lift installed and maintained (and removed/made good when I vacate) at my expense?
Answer: Consent of the Owners Corporation via a special resolution and special by-law would be required
The proposed installation of a stair lift will involve alterations to common property, hence consent of the Owners Corporation via a special resolution and special by-law would be required. Council approval may also be required.
The purpose of the by law is to transfer the responsibility of repair and maintenance of any alterations to common property to the registered owner arranging the alterations. The by law is the only mechanism to transfer responsibility of common property and indemnify the Owners Corporation for such responsibility. The by law would also set out the terms of approval, one of which would be to cover the cost of installation and removal of the stair lift as proposed by the owner.
Therefore without the consent of the Owners Corporation by way of special a by-law the proposed works cannot proceed.
In conclusion, if the Owners Corporation does not provide its consent by way of the special by-law, the owner cannot proceed with the alterations to common property, however, can apply to the NSW Civil and Administrative Tribunal (NCAT). It should be noted that the Owner has the duty to prove that the Owners Corporation has been unreasonable with its decision and as such have unreasonably withheld its consent to the proposed works.
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Read next:
- NSW: Q&A Exclusive use of common property. No access! Really…..?
- NSW: Q&A Does the Owners Corporation Have a Duty to Define Common Property?
Leanne Habib
Premium Strata
P: 02 9281 6440
E: info@premiumstrata.com.au
You can connect with Leanne & Premium Strata on Facebook, Twitter & LinkedIn.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Visit our Maintenance and Common Property OR NSW Strata Legislation
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