This Q&A is about renovating your apartment, altering common property and changing the appearance of the lot has.
Table of Contents:
- QUESTION: In our building, there are many instances where improvements have been done on common property without approval. How do we manage this?
- QUESTION: As part of the renovation approval process, is the Body Corporate legally entitled to ask an owner to pay for an EGM?
- QUESTION: One owner in our three lot scheme has split their lot and created two units. As far as I know, no approval was sought or provided. Is this lawful?
- QUESTION: The owners of the penthouse want to retrofit a lift at their own expense. Do we have to agree or can we refuse?
- QUESTION: Why do we have to pay our body corporate a $200 admin fee for all applications and submissions?
- QUESTION: How do we seek urgent orders to stop a resident from renovations during a busy holiday period?
- QUESTION: I’ve applied for approval to change flooring. What rights do I have if I have not been responded to within the appropriate time?
- QUESTION: Before moving into a townhouse, we have some maintenance and repairs to carry out within our unit. Do we need to get permission from our Body Corporate?
- QUESTION: If doors and windows are not on common property, is the “minor improvement” value applicable?
- QUESTION: Can the BCC tell me where I can (and can’t) put pot plants in my exclusive use courtyard? I want to use the plants as a screen as I have been denied approval for other forms of screening.
- QUESTION: After reading the recent article about QLD Owner Improvement, would it be possible to follow-up on three additional issues regarding improvements / alterations?
- QUESTION: Although our renovations have been approved, the committee is questioning whether a change is “structural” and requires an engineers report.
- QUESTION: Can a lot owner apply to have one side of a duplex painted which includes their unit or does it have to apply to the whole building or part thereof?
- QUESTION: Can Real Estate agents place real estate signs for sale or rent on common property without approval from the body corporate committee?
- QUESTION: We want to install a bike anchor for our E bike in our underground parking space. Would we be able to do this without Body Corporate approval?
- 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: In our building, there are many instances where improvements have been done on common property without approval. How do we manage this?
The prior owner installed an air conditioner servicing only my lot on a common property wall. The Body Corporate committee minutes do not have any record of approval for this installation. There was no mention in the sales contract of the improvement/installation or that I was responsible for rectifying any issue associated with this modification.
Who is responsible for the maintenance of that air conditioner on the common property? Is there something I could have done prior to purchasing the unit that would have alerted me to this situation? Why didn’t the selling agent notify me?
There are many other examples of improvements on common property like this throughout the building. Most of the lots are rented and the committee just lets people do what they want. There is no follow up to ensure the correct processes have been undertaken, no record of applications for improvements.
What do we do to rectify this situation so the changes that have been made to the complex are either recorded properly or rectified? Do we need to have a report or inspection done?
Answer: The committee could do a walk around to review current improvements and cross check the records.
Some committees are very proactive and will act on non-compliance with by-laws, such as an air conditioner installed on common property without approval. However, some are not. Also, they may not be aware of the issue, particularly if they do not live on site.
As the air conditioner is for your unit, then yes, you are responsible for it. You may wish to send an application for approval to the body corporate, which should then be on the records as an improvement to common property.
If you have an interest in what is happening in your scheme you may wish to nominate for your committee and be a pro-active member. The committee could do a walk around to review current improvements and cross check the records. It would be good for them to communicate with the residents on the particular by-law requirements and ask that residents send in applications for approval. You can also communicate this to your current committee.
You do have an option as an owner to request the body corporate to enforce the by-laws on a particular occupier for a particular breach. This is done via a BCCM Form 1, the process and form can be found on the website of the Commissioner for Body Corporate and Community Management. It is important to note that committees who focus on engaging ALL residents can go a long way to transforming a building into a harmonious place to live.
This post appears in the December 2021 edition of The QLD Strata Magazine.
Question: As part of the renovation approval process, is the Body Corporate legally entitled to ask an owner to pay for an EGM?
Answer: The rationale here is that it is the owner benefitting from the meeting rather than the body corporate so they can be asked to cover the costs. If the owner doesn’t want to pay, they can wait.
There is no reason why not and this would be fairly common if the EGM was being held for the benefit of that lot owner.
Consider a renovation application that exceeded $3000. In this case approval should be granted at a general meeting. The owner has made a submission and has the option of waiting until the next general meeting for a response. However, this meeting could be many months away. In that circumstance the owner could be asked to pay the costs of the EGM if they wanted it to be held sooner. The rationale here is that it is the owner benefitting from the meeting rather than the body corporate so they can be asked to cover the costs. If the owner doesn’t want to pay, they can wait.
The same theory can be applied to items such as holding a VOC to approve a pet application. The application benefits the individual owner, who usually wants an answer quickly, so the costs of holding this vote should be paid by the applicant.
This post appears in Strata News #527.
Question: One owner in our three lot scheme has split their lot and created two units. As far as I know, no approval was sought or provided. Is this lawful?
I recently purchased a 3 level townhouse in a small complex. We are self-managed by one of the three owners. The person undertaking the manager’s role has split their lot into two units by enclosing part of the garage and office/bedroom on the ground floor, creating a separate unit with its own entrance, kitchen/living area, laundry, bathroom and bedroom. The owner now lets out the upstairs three-bedroom townhouse and the separate ground floor unit.
There is no Body Corporate Committee approval for this change and the body corporate records provided at the time of purchase show no reference to this structural change or change of material used.
I have requested access to the body corporate records to review whether this structural change was approved by the body corporate and I have been refused access.
Is there anything in the BCCM Act or Regulations that would cover such a material change of use in converting a single lot into a multi-use dwelling? What effect would such change have on the levies and would the body corporate need a new community management statement and bylaws to cover the change? As the next step, am I best to lodge a dispute?
Answer: You may need to obtain a copy of the development approval conditions and planning overlays.
There are a few points here:
- Firstly, an owner cannot be refused access to body corporate records. That may be worth following up on to facilitate any further action to be taken.
- There is nothing necessarily in the body corporate legislation that would prevent the works or use of the lot in that way. However, this will depend on what the by-laws provide for and the type of survey plan. Once that is known, there may be an angle to take in that regard.
- Whether the use of the lot in that manner is lawful depends on what council’s requirements are. To check this, you may need to obtain a copy of the development approval conditions and planning overlays.
This post appears in the November 2021 edition of The QLD Strata Magazine.
Question: The owners of the penthouse want to retrofit a lift at their own expense. Do we have to agree or can we refuse?
We live on the ground floor of a fifty-year-old, three-storey block on the Gold Coast.
The owners of the penthouse on level 3 want to retrofit a lift at their own expense because they are ageing. We feel this will compromise the integrity of the sea views and our building.
The penthouse owner said we are required by law to allow him to expedite the installation of a lift, giving them access to their unit. They currently access their unit by a staircase. Is this a legal requirement on behalf of all the other lot owners or can we refuse this request?
Answer: The approval for that is dependent upon the value of the works and also factors such as whether it would cause a nuisance.
There are, it seems, a few details missing in this query. Is the penthouse owner wanting to make an improvement to common property, presumably? Assuming yes, then the approval for that is dependent upon the value of the works and also factors such as whether it would cause a nuisance. Remember that ‘nuisance’ can involve a visual nuisance.
Your comment about the proposed lift impacting upon the ‘integrity of sea views and our building’ is worth exploring. How do you know that? Do you have an expert opinion which supports that view? Do you have plans from the penthouse owner which you have been able to have assessed for views? Has a structural engineer provided an opinion about the ‘integrity of the building’ as a result of the proposed lift installation? If the answer to any of these is ‘I don’t know’ or ‘No’, then you will need further information to support your view.
You would also need to take into account the fact they are using the stairs currently. Are the owners, occupants or their invitees mobility impaired? If so, is it reasonable for the request to be denied when you know there are mobility issues?
If the committee is considering this request (which they may, again depending on the value of the works and the other factors noted above) then yes, they are required to consider the request within 6 weeks, with a further 6 weeks possible if they need to seek further, reasonable information. Otherwise, if it has to go to a general meeting of all owners, there is no particular timeframe on the calling of that, other than if the penthouse owners obtain 25% of the signatures of all owners to force an extraordinary general meeting.
By now I think you would have gleaned from the above that this is far from a simple or black and white scenario and a fair bit of additional information – from all sides – is likely to be needed. The committee would be well advised to seek some legal advice prior to them making any decisions in relation to this matter.
Question: Why do we have to pay our body corporate a $200 admin fee for all applications and submissions?
As new body corporate owners, we are confused about how body corporate works. When asked about how we apply for a general lot alteration approval oor body corporate has stated that we need to lodge the application via their website and pay a $200 admin fee each time.
According to their website, this fee also applies to almost all other applications. Why can’t we find out who is on the committee of our 8 townhouse body corporate and simply send them the application instead?
Answer: It doesn’t seem unreasonable that they may charge for an application to be processed.
The body corporate will have engaged a managing agency to assist with the administration of the site. Presumably, the managing agency is acting within the boundaries of its agreement and owners will have been aware of the conditions of the company when appointing them as managers.
It doesn’t seem unreasonable that they may charge for an application to be processed. Handling such proposals is unlikely to be part of a standard service in the contract agreement and it will take the managing agency some time to process the application, receive committee votes or comments and provide you with a written response. The records of this and the final response will become part of the formal records of the body corporate and would be used by all parties in the event of a dispute. I can see how some owners may think this is not that important at the time they are making the application as they just want to get it done, but the clear documentation of applications is a key part of body corporate management and if it is done well contributes to the efficient running of the site.
It is also reasonable that such fees are passed on to individual owners. After all, you will be the person benefitting from the process of the application and other owners wouldn’t want to pay for this. Equally, you won’t be paying for other owners requests when they are looking to get a new pet, bathroom, by-law and so on.
In most cases, you should be able to access general information about your site without cost. Your managing agency may be happy to provide this – just contact your manager and ask – or you may be able to access the information via an online portal. You can send the committee an email via your manager and ask them to pass it on – they will. If you really need to, you could do an inspection of the books and records and gain access that way. If you try to circumvent the established procedures you may get a mixed response – committee members are volunteers who rely on body corporate managers to help run the scheme and that seems to be what is happening here.
This post appears in the October 2021 edition of The QLD Strata Magazine.
Question: How do we seek urgent orders to stop a resident from renovations during a busy holiday period?
We have bought into a complex of 5 at a popular beachside resort. An owner has started renovating his unit internally without Body Corporate permission. We are going into the school holiday season and have our unit rented back to back for the next 4 weeks. He has now sort permission and submitted a 10-week schedule to complete the renovation before Christmas.
Two owners are happy for him to go ahead, two owners (who holiday rent) want it suspended until after the school holidays. What can we do? Is an EGM the answer? Jackhammering is due to commence Monday!
Answer: Urgent problems demand urgent solutions.
Urgent problems demand urgent solutions. The Commissioner’s Office provides a dispute resolution service that includes adjudication. In appropriate circumstances, adjudicators can make interim orders, known in other jurisdictions as injunctions. Interim orders preserve the status quo until the primary dispute can be determined. An owner commencing renovations without approval, when approval is required, might be such a primary dispute. An interim order in that case would restrain the commencement of the works until the primary dispute is determined. As with any dispute, we do recommend that you obtain considered legal advice.
This post appears in the October 2021 edition of The QLD Strata Magazine.
Question: I’ve applied for approval to change the flooring. What rights do I have if I have not been responded to within the appropriate time?
I currently have an application with my Body Corporate Committee to install hard flooring in place of carpet. The bylaws state that hard flooring must be less than 62 dB and include soundproofing underlay with a 5mm thickness to be installed under any hard flooring.
I have submitted the application for flooring with an acoustic report from the manufacturer of 52 dB and 5 mm Acoustic rubber underlay to be installed.
My application has clearly met the requirements of the by-laws however the committee seems to be delaying the decision to provide consent. We are nearing 6 weeks and the committee has since approved my other requests which were on the same email request.
The decision is holding up other works.
I have made several enquiries to the Body Corporate manager as to what the delay is and have only been provided with generic responses in the likes of “we’ve forwarded this to your committee”.
I just want to know what avenues/rights do I have if I have not been provided with a response in the appropriate time frame?
Answer: If it gets to the point where you’ve made a submission and after six weeks, you haven’t heard anything back it’s considered that the motion is defeated
The last part of the question is ‘What are the avenues or rights of the applicant?’. As an individual lot owner, you are entitled to make an application to the committee. You’re entitled to submit (up to six motions per yea) [https://www.lookupstrata.com.au/qld-submitting-motion-to-committee/]r to the committee. The committee has to consider those within six weeks or provide you with the reason why not, or request an extension of some kind. You should activate that part of the legislation. Make a formal application, a proper motion, and then force the committee into having some kind of committee meeting or VOC so that you can get a formal decision one way or another. That’s an avenue open to all lot owners.
Six weeks is quite a long time. It doesn’t always fit with people’s building schedule plans, but that’s what it is. You have to deal with that.
From the community’s perspective, they may agonise over these kinds of applications. It’s not so much the application, but they’re worried about the impact on the person below your unit. Will adding this type of flooring have an impact on that individual? There’s a lot of uncertainty. If you searched up the issue on the internet, you could hear nightmare stories. Committees are a group of individuals who generally have the best interests of the owners at heart. So sometimes, when they are taking a long time to decide, it’s because they’re trying to do the right thing, but they might want to have a definite pathway towards doing that. There might have been problems in the building in the past where people have said, my application is fine and then it’s turned out that there have been problems after the fact. So I think we have to be kind of sympathetic to that kind of issue.
In this case, the lot owner has made an application and the committee should really consider having a vote on it. If they choose to vote no, then the lot owner has right to go to the commissioner’s office.
What I might touch on with this issue is that there is a school of thought that these kinds of flooring renovations don’t need to have approval because it’s whether or not the floors in question are considered the common property or whether they touch the common property or not. I’ve heard some arguments that say, well, if you’ve got the noise bylaw in place, and I hope every building does, that bylaw is sufficient in and of itself as a regulation because the lot owners are not allowed to have the high level of noise transfer from one lot to the other. That’s a school of thought, I don’t know if it really applies. I think it’s worthwhile people making the applications and trying to show as much due consideration to their neighbours as they can.
Submitting Motions and Response Times
In the past, you could submit ideas and questions and things like this and they could go into the void and never be responded to. Obviously, that was a fairly unsatisfying situation. So, (QLD legislation changed in March 2021) [https://www.lookupstrata.com.au/qld-getting-ready-march-strata-reforms/] which now permits owners to submit up to six motions per year to the committee’s consideration and the committee has got six weeks to make a determination, or they can ask the lot owner for an extension beyond that six weeks.
If you’ve made a submission and after six weeks, you haven’t heard anything back, it’s considered that the motion is defeated and you proceed on that basis. If you’re unhappy with this outcome, which you probably would be as an applicant, then you could go to the commissioner’s office and follow through on that basis
I think it’s a very good piece of legislation, and we’ve been encouraging owners to use it more and more where possible because it creates a situation where a decision has to be made. What might have happened in the past, if people ask questions, ‘Can I do this? Is this okay? Is that okay?’ it gets a little bit vague, and then answers come back which are a little bit vague. This goes on for three or four weeks, and then a month, two months and three months and before, you know, a year’s gone by and nothing’s really happening. Everyone’s kind of frustrated and given up.
Having a motion, having a meeting, a decision has to be recorded one way or the other, for better or worse. That gives people a very definite and clear avenue for how to proceed in the event that they’re unhappy with the final decision. I think that’s a good thing for the industry and I would encourage all owners who want an issue discussed to take that pathway because you will get a definite answer. You might get the answer you want, but you will get a definite answer.
This post appears in Strata News #505.
Question: Before moving into a townhouse, we have some maintenance and repairs to carry out within our unit. Do we need to get permission from our Body Corporate?
Before moving into a townhouse, we have some maintenance and repairs to carry out within our unit. Do we need to get permission from our Body Corporate? We are looking to:-
- Permanently close a window by putting a fibre sheet and plastering it. This window faces our courtyard and not the common area.
- Install a range hood, which will require a new exhaust vent to be created on a wall. This wall already has a couple of exhaust vents from two other units.
Answer: ‘It depends’ is the answer to both questions.
“It depends” is the answer to both questions. It depends on your plan of subdivision, applicable regulation module, whether your proposed changes encroach onto common property and what the by-laws saw.
If it’s a townhouse then it’s likely you’re what’s called a standard format plan. You should be able to tell the regulation module and by-laws from your purchase documents, assuming they include what’s called the Community Management Statement.
So with all of that in mind and noting that a definitive answer isn’t possible at the moment, I’d say that on (1), if it’s within the boundary of your lot, you may not need approval, depending on any by-laws regarding appearance and on (2), if installation is going to occur on common property – and it sounds like it is – then you may need approval.
This post appears in the July 2021 edition of The QLD Strata Magazine.
Question: If doors and windows are not on common property, is the “minor improvement” value applicable?
If doors and windows are within the Owners Lot (not on common property), is the “minor improvement” value applicable? I understand the impact of adding a security entrance door to Lot Appearance which requires approval but I would like to add Crimsafe to all doors and windows of my lot (well over $3,000) in installed value. Why does a committee ordinary resolution determine my level of security?
Answer: An improvement to a lot is only regulated by the by-laws.
An improvement to a lot is only regulated by the by-laws. This means that the minor improvement rules do not apply (as that only relates to common property improvements). One thing to check though is that the building is not created in a building format plan with the front door (or any of the windows) being the boundary. If that is the case then the outside of the door (or window) would be common property.
This post appears in the June 2021 edition of The QLD Strata Magazine.
Question: Can the BCC tell me where I can (and can’t) put pot plants in my exclusive use courtyard? I want to use the plants as a screen as I have been denied approval for other forms of screening.
Answer: As a general rule, the body corporate is permitted to dictate the external appearance of the lot to maintain aesthetic consistency.
This will depend on:
- What your exclusive use by-law allows for; and
- Any other by-laws affecting the external appearance of the lot.
The issue seems to centre around the screening as opposed to the placement of pot plants. As a general rule, the body corporate is permitted to dictate the external appearance of the lot to maintain aesthetic consistency. However, if the screening does not particularly detract from the external appearance (or is needed for some form of privacy) it may be unreasonable for the committee to prevent any form of screening being installed.
This post appears in the May 2021 edition of The QLD Strata Magazine.
Question: After reading the recent article about QLD Owner Improvements, would it be possible to follow up on three additional issues regarding improvements/alterations?
While I appreciate the difficulty in writing articles like this: QLD Owner Improvements is knowing where to stop and what to leave out, I think it would be useful to do a follow-up about three additional issues regarding improvements/alterations:
- the need to consider 3rd party regulators eg the local council re DAs and BAs, QFES, electrical etc;
- the problem if the improvement to common property amounts to an exclusion of use by other owners etc; and
- the need to include the improvements by an owner to common property in a special register, as part of the corporate memory.
Answer: Those are good points.
Those are good points.
On each point:
- I always recommend that any approval given by a body corporate is conditional upon obtaining any additional required consents from statutory bodies (such as council and the like).
- This is a regular issue and a source of many disputes as approval to an improvement that affects common property will necessitate seeking some form of use right, usually through exclusive use (it could also be given through a lease or licence). The test that has been adopted in the Commissioner’s Office as to whether a use right is needed is whether the improvement on common property is substantial, permanent or could interfere with another person’s use of the common property.
- This is an often overlooked requirement as the module necessitates this. Some form of assistance is provided as any approval ought to be evidenced by a resolution – which should also stay on the body corporate record.
This post appears in Strata News #469.
Question: Although our renovations have been approved, the committee is questioning whether a change is “structural” and requires an engineers report.
We applied for and were approved for internal renovations three years ago. We are Building format.
The committee passed a motion approx 6 years ago that any structural modification needs an engineers report. This was never made by law.
Is this motion enforceable?
We removed a non-load-bearing wall at the end of the kitchen bench.
My builder’s opinion is that the modification is not structural and therefore outside the control of the motion.
Is there a legal definition of what constitutes a “structural” modification?
Answer: Even if the works were structural, the body corporate would need to approve the works unless it was reasonable not to.
The motion that was passed would not be enforceable unless it was adopted as a by-law – which requires a special resolution.
Even if that were the case, and even if the works were structural, the body corporate would need to approve the works unless it was reasonable not to. If no other lot or common property is affected, it would be difficult for the body corporate to justify a refusal.
To determine if the works are structural I would need some further information, including whether the wall contained any utility infrastructure.
This post appears in Strata News #465.
Question: Can a lot owner apply to have one side of a duplex painted which includes their unit or does it have to apply to the whole building or part thereof?
Answer: The owner can make an application, but there is no obligation for the committee or owners to approve it.
The owner can make an application, but there is no obligation for the committee or owners to approve it. Is there a specific reason why that part of the building would need painting and the others wouldn’t? If so, the motion may be reasonable. If not, it may be better to consider a quote for painting the whole site. If the funds are due to be paid from the body corporate it’s hard to see owners agreeing to a proposal like this if there were a vote on the matter.
It’s worth remembering that the laws on owner submitted motions changed as part of the new legislation that was introduced on March 1.
Please see the below blog on owner submitted committee meeting motions. That may give some direction on how to handle the matter: Owner Submitted Committee Meeting Motions
This post appears in Strata News #435.
Question: Can Real Estate agents place real estate signs for sale or rent on common property without approval from the body corporate committee?
Answer: Unless directed in a by-law, signs placed on the common property require the approval of the body corporate.
Unless directed in a by-law signs placed on the common property require the approval of the body corporate. Property agents should always check on the right to do this or risk having the sign removed.
In this instance, it may be possible to agree a standing order between the body corporate and the agent to reduce the need to make the same request repeatedly in the event that the body corporate assents to the signage. Even so that is still something that would need to be discussed and approved.
This post appears in Strata News #435.
Question: We want to install a bike anchor for our E bike in our underground parking space. Would we be able to do this without Body Corporate approval?
Our underground parking space is part of our title in a CMS building. We want to install a bike anchor for our expensive E bike. This is a 200mm round disc and is 20mm high in the centre. This requires two 12mm wide holes to be drilled 60mm into the parking space floor within our lot.
As this is not a structural change and as the work will be within our titled lot, would we be able to do this without Body Corporate approval? There is a By-law allowing a lot owner to install a locking or safety devise to protect the lot against intruders, would this be applicable? There is nothing in the By-laws restricting the use of the car park to only being used by cars.
Answer: I think you need to consider the terms of your by-law
I think the key here is the by-law you mention. Does that by-law require you to obtain committee approval first? Then there is separate issue of whether your anchor is a ‘locking or safety device’. Sounds like it might be, but it also might be open to interpretation.
Your query suggests that there is an exclusive use by-law at play. If that’s the case then I’d refer you to section 174 of the Standard Module (equivalent provisions of other modules) which deals with improvements under an exclusive use by-law. Depending on the value of the intended improvement, approval may only be made by ordinary resolution at a general meeting.
So I think you need to consider the terms of your by-law, the value of your improvement and perhaps, if you haven’t already done so, open up a discussion with your committee about what you hope to do. You may also need legal advice, as interpreting a by-law can be complex and subjective.
This post appears in Strata News #423
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.
Have a question about changing the appearance of a lot or something to add to the article? Leave a comment below.
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