Question: Do actions/decisions taken in the preceding years override body corporate by laws?
Our small body corporate of 6 detached lots each with a separately fenced property and a common property driveway was formed in 2009. Being small and formed relatively recently, there is not a large amount in the sinking fund.
Do actions/decisions taken in the preceding years override body corporate by laws? Two situations have recently arisen:
- Individual owners have always undertaken their own gutter cleaning, but now a newer owner, who has not cleaned their gutters, is blaming the body corporate for water ingress due to a build up of leaves. They are requesting the body corporate cover subsequent repairs as the body corporate did not organise or pay for the gutters to be cleaned.
- Another new owner is demanding body corporate pay for the removal of a tree on his exclusive use area, citing it is a safety hazard. In the past, 3 owners have all paid for trees to be removed from their properties as the trees were very large and planted close to the houses.
Does this constitute a precedent that can be adhered to?
Can a vote be taken to deny the requests for the body corporate to pay for these repairs?
Answer: If the gutters are body corporate responsibility and the body corporate hasn’t maintained them then it seems there is a reasonable claim against the body corporate.
The question to be asked is whether the works required are body corporate responsibility under the terms or the legislation and your current CMS. If the answer is yes, the body corporate is obligated to undertake the works. If not, not.
Precedent doesn’t really come into play unless that precedent changed the by-laws. For this reason, owners really shouldn’t make up their own local rules as it is hard to apply them consistently over time. New owners purchasing into the scheme can only know the official rules and that’s all they have to and expect to adhere do.
In the case of the gutter cleaning, you should check the rules for your scheme considering whether it is a standard or building format plan and any exclusive use areas to help determine if the guttering is a body corporate responsibility. It isn’t always easy to work out, but your body corporate manager should be able to assist or you can check the BCCM guides on responsibility.
If the gutters are body corporate responsibility and the body corporate hasn’t maintained them then it seems there is a reasonable claim against the body corporate. If not, there may be a counter claim against the owner if any body corporate property has been damaged. The legislation is a two way street.
For the tree in an exclusive use area – this sounds like an owner’s issue as owners are responsible for maintenance costs of items inside an exclusive use area. The BCCM has a good training module on this topic: Online Training – Unit 4 – Maintenance.
Perhaps the body corporate could require the owner to remove the tree if it is a safety risk to the site?
In terms of whether votes can be taken to approve or disapprove payments, the answer is yes. This could be through either a Committee meeting or general meeting of owners. However, if the outcome of the vote contravenes the by-laws or the legislation there could be problems. The vote may be challenged and overturned. There can be disputes, costs and a good deal of unhappiness. Owners should always seek to vote in adherence to the law rather than on the basis of what feels right or what has happened in the past. This can be harder than it sounds.
Precedence is an interesting idea in body corporate as ideas around it can complicate many decisions. My view is that whatever has happened in the past, the body corporate still has to make the best and most informed decision it can in the present. So, if bad decisions were made yesterday that is not a rationale for continuing to make them today. And, if the current laws don’t fit a desired outcome, it is better to seek to a change to those laws now, rather than looking to bend or ignore the laws.
This post appears in Strata News #608.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924