We received an unsolicited approach from a developer to acquire our strata scheme. Are we required to decline formally?
Our strata scheme has 12 lots. We received an unsolicited request from a developer to acquire the scheme in one line.
Our strata committee has decided it is not viable because at least 40% of lot owners, and likely more, will not sell.
Neither the Strata Schemes Development Act 2015 nor the Registrar General's information page covers the process for declining an initial approach. Both only state that the strata committee must decide if the proposal is viable, and if it is not, it lapses.
Are we required to notify the developer that the owners corporation has declined formally? Where can we find legislation or a ruling that deals with declining an initial expression of interest?
There is no requirement to decline an unsolicited approach formally.
From the facts provided, there has been an invitation to treat, and not an offer. In commercial contexts (litigation is different), there is no requirement to decline an offer (or an invitation to treat). By not accepting, it is not accepted. But, as a courtesy, a reply should be provided.
Legislation, rulings, and guidance are made in respect of specific issues and to change the default position of the law. The general and default position of the law is that by not accepting an offer, it is not accepted. From the information given, there doesn't appear to be any oversight.
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Matthew is a Partner of Kerin Strata Lawyers. He graduated Laws from UNSW with Honours and has practiced as a solicitor since 2014. He has acted for and advised clients in a range of matters, including in disputes with respect to strata, building & construction, insurance, contracts, trusts, consumer law, and class actions. He is a Member of the Australian College of Strata Lawyers (MACSL).
In addition to legal practice, Matthew is a frequent contributor to LookUpStrata, the Law Society Journal, and Ethics & Standards Quarterly. He was also a contributor to Wolters Kluwer’s Australian Company Law Commentary and an author to LexisNexis’ Practical Guidance for Total and Permanent Disablement Insurance.
Matthew is an active member of the Law Society of New South Wales and was appointed by the President of the Law Society of New South Wales to its: Business Law Committee since 2021, where Matthew has particular interest in building and construction legislation and strata legislation; and Costs Committee since 2023. In 2024, Matthew was awarded Highly Commended Committee Member of the Year by the Law Society.
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