Question: Our Committee received an enforcement to “repair, rectify, demolish or remove” a common property structure. Did they have authority to demolish and dispose of the common property without first obtaining approval?
Our Committee is in receipt of a local government Enforcement notice that requires the Body Corporate to “repair, rectify, demolish or remove” a common property structure so that it is no longer dangerous or dilapidated.
Did the Committee have the authority to demolish and dispose of the common property and approve expenditure for the work (which was more than twice the Committee’s spending limit), without first obtaining proprietors’ approval at a general meeting? There was an adequate time in which to obtain quotations and call an EGM before the compliance date. The relevant legislation is BUGTA.
Answer: The committee may intend to ratify the decision at the next AGM.
There are a few different approval elements to determine if a general meeting was required to properly authorise such a decision.
Committee spending
Section 47 of the Building Units and Group Titles Act 1980 (Qld) provides that the committee can expend funds:
- which is below its spending limit ($200 for each lot in the scheme if not amended); or
- to comply with a notice served on the body corporate by the local government.
Accordingly, the committee would have been authorised to spend the funds required to demolish the common property structure even if it exceeded the spending limit.
Improvement works
Approval of the physical works to improve (change) the common property would have only needed general meeting approval if the cost was more than $2,000 for each lot in the scheme. I suspect this was not the case.
Restricted matter
The final question is whether the decision to remove the structure was a restricted matter. A restricted matter is a decision that cannot be made by the committee and required a general meeting. Such a type of decision extends to any matter which seeks to alter the rights, privileges or obligations of proprietors.
If owners were making use of the structure – which has now been removed – this would seemingly be a change to the privileges of owners that attached to the structure such that a general meeting would be required.
However, I suspect that if this issue made its way to a referee, at worst, the referee would provide the body corporate with the opportunity to seek ratification at general meeting prior to any other action being taken – particularly in light of the consequences of non-compliance with the enforcement notice. It may be the case that the committee also intends to ratify the decision at the next annual general meeting in any event. This is generally an acceptable course of action for the committee to take.
This post appears in the March 2023 edition of The QLD Strata Magazine.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753