This Q&A about changing the appearance of the lot has been answered by Frank Higginson and Todd Garsden, Hynes Legal.
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.
Have a question about changing the appearance of a lot or something to add to the article? Leave a comment below.
This post appears in Strata News #167.
- QLD: Q&A Do We Need to Install Cages Around Air Conditioning Units on Balconies?
- QLD: The golden rules of by-law enforcement