This Q&A about changing the appearance of the lot has been answered by Frank Higginson and Chris Irons, Hynes Legal.
Jump directly to the QUESTION you are after:
- QUESTION: Would installing sliding external balcony shutters within the balcony railing constitute an improvement to the common property or to the owner’s lot?
- QUESTION: We’ve been inundated with emails from our Body Corporate Manager about our unlawful renovations to our exclusive use courtyard. Do we need to make a retrospective application at the next AGM?
- QUESTION: Do I need body corporate permission to drill a hole in a brick wall inside my until to attach a bookcase? Would this be classed as common property, or lot property?
- QUESTION: We have received an email from our Committee demanding we remove a garden shed immediately. What does changing the external appearance of the Lot mean? Do we have to comply?
- QUESTION: Can a lot owner drill holes through common property verandahs to have a telephone installed in his unit on the top floor without permission from the body corporate?
- QUESTION: What permission is required to carry out a renovation of our unit? The renovation will be extensive and we will be changing the appearance of the lot.
- QUESTION: The Secretary of our Body Corporate Committee has applied for body corporate approval to install shutters after receiving a ‘No’ a few years ago. As the decision will change the appearance of the lot, is this right?
Question: Would installing sliding external balcony shutters within the balcony railing constitute an improvement to the common property or to the owner’s lot?
Would installing sliding external balcony shutters affixed by a track to either/both ceiling and flooring of any particular balcony in our complex but installed within the balcony railing constitute an improvement to the common property by a lot owner or merely be an improvement to the owner’s lot?
Our by-laws state owners must first seek Committee approval to make common property, boundary, structural or lot improvements or change the external appearance of their lot, however, the Act, so far as I’m aware, states any common property improvement by an owner that exceeds $3000, detracts from the appearance of a lot or is likely a breach of the owner’s duties as an occupier must go to a general meeting as an ordinary resolution.
Logically, if our Committee develops clear product specifications and conditions around the installing of external balcony shutters that comply fully with any statutory/regulatory requirements and all owners agree them at a general meeting, any complying owner request should be able to be green lighted by Committee without having to go to a general meeting.
Unless installation’s deemed an improvement to common property by the lot owner?
Answer: While you might be sure your proposal isn’t affecting common property in any way, the committee may take a different view.
The key issue here is what is and isn’t common property. From experience I know that this is rarely a straightforward determination and even where it seems blatantly obvious something is common property, it turns out not to be (or vice versa).
If you haven’t already done so you should check and double-check the plans for your lot regarding the extent of its boundaries. Assuming you’ve clarified the proposed improvement is within your lot and has no impact on common property, then you don’t need body corporate approval for that. You would need to ensure you comply with any relevant by-laws. You’ve identified there may be some by-laws that are relevant here and that you may need to seek approval for your improvement. You might also need to consider if your proposed improvement would constitute a nuisance under section 167 of the Body Corporate and Community Management Act 1997. ‘Nuisance’ here isn’t just about noisy parties. Nuisance is about the use of the lot and one way that might happen in this case is, for example, if the reflection and glare off your proposed shutters caused an issue for another lot.
Bear in mind also that even though you might be 100% of the view your proposal isn’t affecting common property in any way, the committee may take a different view and this in turn can give rise to a dispute.
Bottom line: assuming that something is/isn’t common property can be a big risk. I’ve seen so many disputes around this topic. You may be well served seeking some specific legal advice.
This post appears in Strata News #370
Question: We’ve been inundated with emails from our Body Corporate Manager about our unlawful renovations to our exclusive use courtyard. Do we need to make a retrospective application at the next AGM?
We only moved into our strata unit a few months ago and we have been inundated with emails, and now a legal letter, about our unlawful renovations to our exclusive use courtyard.
Is the Body Corporate Manager there to be an advocate for us or are they there just to take our fees and issue notices regarding building faults etc?
I contacted the Commissioner’s Office and they advised us to make a retrospective application at the next AGM.
I’ve also contacted our Body Corporate Manager and she said to fill out 3 separate applications and submit them.
Answer: While you have to comply with by-laws, the body corporate also has an obligation to properly enforce them.
The body corporate manager is not your advocate. They are there to act upon the instructions of the committee and provide advice and information to owners and occupiers as necessary. They are appointed by the body corporate under a contract.
When you become a lot owner, you have rights but you also take on obligations under legislation and what you might be used to doing in a house, for example, is not necessarily what you can do in a body corporate. You are part of a collective and your renovation, which might seem straightforward to you, may actually impinge upon common property. There are often approval processes to go through.
By-laws are the legally-enforceable rules which apply to everyone living in your building. By-laws can also regulate how exclusive use areas are to be used. While you have to comply with by-laws, the body corporate also has an obligation to properly enforce them.
It sounds like you’ve been given advice about how to proceed from this point. Just a note on the Commissioner’s Office – as the former Commissioner, I can tell you that while it is also not an advocate for you, it is impartial and is there to provide you information which you can then use to hopefully resolve the situation. If you find that isn’t working and you’re experiencing further difficulties, you may need to seek legal advice. I know you say you don’t want to get bogged down in the legalities but that may be necessary if things can’t be resolved.
This post appears in Strata News #343.
Question: Do I need body corporate permission to drill a hole in a brick wall inside my until to attach a bookcase? Would this be classed as common property, or lot property?
What is classed as common property and what I need body corporate permission to change?
Do I need body corporate permission to drill a hole in a brick wall inside my until to attach a bookcase? Would this be classed as common property, or lot property?
My unit block appears to be a Building Format Plan as it is a block of 6 units built in the 80s.
Answer: Sometimes what appears to be your lot may not be.
Knowing what is common property and what is the lot owner’s responsibility is a challenging issue at times and one which can’t be answered based on the information you’ve provided.
Your first port of call is to obtain the plan of subdivision, as you say it ‘appears’ to be a building format plan. You do need to know for sure which plan applies, as that goes towards determining what is and isn’t common property.
Generally, if something is within the boundaries of your lot, you are responsible for it but you shouldn’t just assume that to be the case, as sometimes what appears to be your lot may not be.
This post appears in Strata News #337.
Read More: Common Property Boundaries
Question: We have received an email from our Committee demanding we remove a garden shed immediately. What does changing the external appearance of the Lot mean? Do we have to comply?
Our CMS By-laws state:
General appearance of Lots.
An owner or occupier of a Lot must not in any way alter the exterior appearance of the Lot, nor cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.
- No variation to appearance.
Subject to By-law Sale of Lots, an owner or occupier of a Lot must not do anything to vary the external appearance of the Lot or Common Property without the prior written consent of the Committee.
We have received an email from our Committee demanding we remove a garden shed (interestingly under By-Law Sale of Lots) immediately. We did erect it without consent but have subsequently sought approval on two occasions, each request was met with a No reply.
My question is ‘what does vary the external appearance of the Lot’ mean. I note many units in this complex have balcony furniture, wall clocks, umbrellas and potted plants / vertical gardens on their balconies, all of which I believe alter the exterior appearance of their Lots.
We do not intend to remove the shed hoping that the dispute will progress to conciliation and on to adjudication as we believe our Committee is serving for the benefit the ‘select few’.
Answer: This would be based largely on conduct and what is just and equitable.
I think it is hard to say the external appearance of the lot isn’t altered by the construction of a shed. Having said that, the committee does need to be reasonable and act with consistency.
To the extent the ‘no’ is not based on reasonable grounds or they are super lax around other appearance altering changes, then the owner may have a case. This is one of those ones that will be based largely on conduct and what is just and equitable.
This post appears in Strata News #312
Question: Can a lot owner drill holes through common property verandahs to have a telephone installed in his unit on the top floor without permission from the body corporate?
Is it legal for an owner to have holes drilled through common property verandahs to have a telephone installed in his unit on top floor?
All this was done without Body Corporate approval & done very secretively.
It is a 3 Level building & concrete drillers have placed holes in levels 1, 2 & 3 verandahs. Not only is this altering common property but also changing the appearance of the lots.
Answer: This would need approval pursuant to the relevant module.
Assuming this is a lot in a building format plan, this would need approval pursuant to the relevant module (and most likely, depending on the by-laws, approval pursuant to those by-laws).
If an owner is concerned by the works, they should write to the committee asking them to enforce the by-laws / relevant module requiring approval.
This post appears in Strata News #244
Question: What permission is required to carry out a renovation of our unit? The renovation will be extensive and we will be changing the appearance of the lot.
I have a question regarding what permission required to carry out an extensive renovation of our unit on a group title of 6 units where we own the land where we will extend the unit.
The renovation consists of adding a bathroom and carport down one side extending 2m wide, extending the front to our boundary 1.6m with a new verandah, and therefore changing the appearance of the lot. The cost is approx $40k. Although this will change the look of the front of the unit, we have had an architect draw up the plans to be sure the design is keeping with the appearance of the exterior of the building and of other existing units.
There is a common property grassed area between the extension and the villa next door.
Do we have to get a resolution by dissent or can the committee simply approve our request? We have one agitator in the group and I feel this may cause an issue regarding the decision.
Answer: The starting point for us with this is whose land the works will be constructed on.
The starting point for us with this is whose land the works will be constructed on? Is it on the title to the property, or is it common property? If it is common property, is there a grant of exclusive use for it? If not, that will need to be part of the program.
After that, it then depends on the by-laws in terms of what has to happen, but my bet would be the by-laws would (or at least should) provide for an application to be made to the committee for the works. Subject to the amount spent on them and who the land is actually owned by, that might need approval at a general meeting as well.
So there could be a bit more to do for this one before the green light appears. I think the safest thing to do will be to engage with the committee and ask nicely.
This post appears in Strata News #212.
Question: The Secretary of our Body Corporate Committee has applied for body corporate approval to install shutters after receiving a ‘No’ a few years ago. As the decision will change the appearance of the lot, is this right?
About three years ago an owner sought permission to changing the appearance of the lot by installing shutters on the whole length of the inside of the glass balustrade on her balcony. This was taken to an EGM and voted against almost unanimously with a resounding NO as it detracted from the architect’s vision and integrity of the building and because of where they will be placed the wind is a real concern.
The person is now the Secretary of our Body Corporate Committee. Now she is on the committee, she applied for body corporate approval again and they voted yes she can do this. Of the four people that voted yes for the Secretary to install the shutters only one was an owner at the time of the EGM. The others are all new members who have joined since her last application to Change the appearance of her lot.
Where do we stand when it has already been voted on at an EGM with an all most unanimous NO? Unfortunately, the committee is stacked and does not have the interest of the building as a whole in its sights.
Answer: If an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.
There are a couple of topics that pop up here.
Firstly, if an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.
While a general meeting decision will ordinarily override a committee one, the new application for approval was made 3 years later and, provided the shutters are installed on her lot, it sounds like something the committee is empowered to decide under the by-laws.
If owners do not like the committee’s decision and want to challenge it, they can. However, they’ll need to be able to show that the legislation was not followed or that the decision was unreasonable.
Secondly, it isn’t clear from the query whether the secretary voted on her own motion. If she did, she shouldn’t have because of the conflict of interest provisions of the modules (section 53 of both the Standard and Accommodation Modules). However, if her vote is excluded and the numbers are such that the motion still would have passed, there would be little utility in challenging the motion on that basis.
The fact that lot ownership or committee composition has changed over time does not alter our view. An owner seeking body corporate approval for something will often put their request forward again in those circumstances.
This post appears in Strata News #167.
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