Question: We’d like to install a chair lift to access our apartment. Before we pay for a by-law and reports, is it a good idea to test the waters to see if we have enough Yes votes?
My wife has just had a double knee replacement. We are worried about how she will access our third-floor unit. There is no lift. We need to climb 45 stairs to get to our apartment. We are in our 60s and are considering installing a chair lift. Our strata manager has advised that approval to install a chair lift would require a special resolution.
We have obtained a chair lift quote and drawings. Before we pay for a by-law and more reports, can we put a motion on our upcoming AGM for agreement, in principle, from owners? Can we test the waters to see if we have enough Yes votes.
We don’t want to move as we love our apartment.
Answer: There is no reason why you cannot informally test the waters before you incur the expense of preparing a by-law, however, it may not be reliable.
From a legal perspective, there is no reason why you cannot informally test the waters before you incur the expense of preparing a by-law, however, it may not be reliable, for example:
- nothing is stopping an owner from subsequently changing their position when it comes time to vote, which they may well do after reviewing your by-law or if the owners corporation obtains legal advice or advice from a consultant;
- there is the risk that the owners who support the chair lift do not attend or vote at the meeting at which you seek approval of your by-law;
- depending upon how you go about it, testing the waters may give the impression that you are not firmly committed to having it installed. Discussions could be used against you should the owners corporation later oppose the installation of the chair lift;
- you have limited, if any, rights should the discussions not progress as you anticipated because a by-law is necessary to install the chair lift and you will not have provided a by-law.
Section 149 of the Strata Schemes Management Act 2015 provides the NSW Civil and Administrative Tribunal with the power to prescribe a change to the by-laws (i.e. make your by-law) if you can establish that the owners corporation has unreasonably refused to make the by-law.
Under section 149, the Tribunal must have regard to the interests of all owners in weighing up your rights and your reasonable expectation to install a chair lift.
If, despite the potential disadvantages, you still want to test the waters, in my view, it would be best to speak with owners individually to explain your access difficulties, disabilities, etc., show them the drawings, and enquire into whether they have any issues with installing the chair lift. Make a note of any issues raised.
However, if the chair lift is important to you, I suggest putting forward your by-law and best position from the outset. I would suggest you speak with a legal practitioner who has experience drafting similar by-laws, advise the legal practitioner of any issues raised by any of the other owners and ask the legal practitioner to advise on and address any factors which may cause the owners corporation to reasonably refuse the by-law.
The owners corporation will likely require you to pay for the installation, maintenance and repair of the chair lift. These are also factors you should discuss with the legal practitioner. Before you submit the by-law to the owners corporation for approval, you need to be sure you can comply with the by-law, including meeting all of the costs that may arise from it.
If approval is not granted at the general meeting, you should note what was discussed and the reasons the by-law was refused. You may then obtain legal advice and apply for a strata mediation with NSW Fair Trading before you make an application in the Tribunal pursuant to section 149 of the Strata Schemes Management Act 2015.
This post appears in the March 2023 edition of The NSW Strata Magazine.
Shane Williamson Williamson Lawyers Pty Ltd E: shane@williamsonlawyers.com.au P: 0404 045 605