Three things to know about decision-making in strata:
- Many strata decisions that seemingly offer owners a choice by voting are illusory
- This applies at both general meeting and committee level
- Discussion is needed about other strata aspects that could be set down in black-and-white law
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It was Henry Ford who once supposedly said of his Model T car: you can have any colour you like, so long as it’s black.
The illusion of choice has become a familiar feature of modern life, including in community living.
The illusion of choice in body corporate finances
From a strata perspective, take your Annual General Meeting for example.
You’re asked to vote through the proposed budgets for the next year: the administration fund, the sinking fund, what levies to strike each quarter…whatever it might be.
In theory there’s a choice in that vote, but in practice there actually isn’t.
Because if you don’t vote through those levies, anyone can apply to the Commissioner’s Office to seek an order that the levies be struck – and they will be struck, because a body corporate has a statutory obligation to be able to fund itself.
Common property must be kept in good repair and condition. Structural items must be kept in a structurally sound condition.
Common property must be insured.
These obligations – and the consequent costs that come with them – are not negotiable. So if a body corporate in general meeting chooses not to resolve to fund them you will almost certainly be forced to do so by an adjudicator upon the application of any lot owner.
This happens via an administrator being appointed to force bodies corporates to do what they have otherwise chosen not to do at general meeting.
If the roof is leaking and that’s a piece of common property, then it is a statutory obligation for the body corporate to keep it in good condition.
If the body corporate is not doing so, then it’s going to be forced to do so.
An administrator can strike levies against the owners to make those repairs despite the fact those owners voted not to repair the roof.
That’s the illusion of choice.
There’s a theory that you have an option in setting those budgets, but you actually don’t.
The illusion of choice and pets in body corporate
One issue that has really emphasised this point is the recent legislative reforms in relation to pets.
For just under 30 years, we’ve been operating on the basis that lawyers and adjudicators know what the rules are with regard to pets in buildings.
A raft of decisions that we’re all relatively familiar with have been made around rules for pets – these are all based on by-laws not being allowed to be oppressive or unreasonable. What those words mean with respect to pet approvals has been detailed in multiple adjudications.
The illusion of choice in this context was occupiers were obliged to seek permission from a committee to keep a pet. That request created the illusion that a committee could refuse that consent when the reality is that very few actually could.
In the last round of statutory reform in the modules, the State Government decided to effectively bring into legislation what adjudicators have been saying for 30 years.
And since then, pet disputes have fallen off a cliff.
Why?
Because everyone now knows what the rules are. They’re not left to guess what oppressive or unreasonable is. They’re told in black-and-white from a legislative perspective what the position is. The illusion of choice has largely been dispelled – there likely is none.
A point for discussion
From my perspective – and this is something that I think the whole strata community in Queensland is going to have to deal with – what else should we be looking to codify, to take away the disputation that’s created in a community title scheme by words like ‘oppressive’ or ‘unreasonable’?
It’s a discussion we should be ready to have.
Frank Higginson
Redchip Strata Law
E: FrankH@redchip.com.au
P: 07 3193 0500
This post appears in Strata News #795.
This article has been republished with permission from the author and first appeared on the Redchip Strata Law< website.
I have been an owner of a 1 bedroom apartment since 2008 in Mawson Lakes in South Australia. I am the original owner of my apartment. A building inspection report from a licensed professional 3 years ago has confirmed there are holes in the firewalls in the ceiling space on both sides for apartments 20 & 22. I am in apartment 21. The firewalls are common property as stated within the relevant strata legislation. [Body Corporate Manager] have the building inspection report, and many other emails I have sent them for a period of nearly 3 years. They have finally agreed to fix the firewalls. I have finally received confirmation in an email from the Body Corporate Manager. However, I cannot get a time frame or start date from the Management Committee. We have a sinking fund and administrative fund. If they continue to stall do you have any suggestions as to what I can do next. Would a Strata Lawyer be the best person to speak to?