These questions about the decision-making process for common property alterations have been answered by Tony Johnson, Stratarama and Tyson D’Sylva, Ace Body Corporate Management.
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- QUESTION: A lot owner has made common property alterations to a gate without seeking approval. Shouldn’t all owners have been consulted before any modifications were made? Are owners able to make changes to common property without consent?
- QUESTION: To my understanding, every owner has equal right and say for any issue related to common property alterations, including any change regarding its use etc. and could be vetoed by a single vote in the meeting.
- QUESTION: Does a new owner have the right to make common property alterations, such as installing solar, without seeking body corporate permission?
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Question: A lot owner has made common property alterations to a gate without seeking approval. Shouldn’t all owners have been consulted before any modifications were made? Are owners able to make changes to common property without consent?
One of the lot owner in our complex has modified the common area gate which we use to access our property. They have installed a closing spring. This makes it very difficult to bring items in and out of the property. They did this without asking anyone or seeking any approval.
Shouldn’t all owners have been consulted before any common property alterations were made? Are owners able to make changes to common property without consent?
Answer: If the gate is common/original and accessed by several, then the gate should not be altered without coming back to the group for discussion and voting.
You note that it is a common area gate, however, refer to it being a gate used to access her property. The first thing to ascertain would be to find out whether or not that gate is a common gate or whether it was a gate installed to service only that unit, and/ or whether it was a gate installed by this owner (or previous Owner) at their own cost and at their request. Check the Articles or past minutes to determine whether this gate is original or in fact was a later installation by the unit.
Does the gate service multiple Owners/ Residents accessing the common area?
Assuming that the gate is common/original and accessed by several, then the gate should not be altered without coming back to the group for discussion and voting. The gate should be able to be repaired but modified to change the way it is used would not be appropriate without review by the group.
It would seem that at face value, someone has likely taken this action believing that they are doing the right thing to ensure that the gate is shut. It would perhaps be best to approach them and/or other owners in a friendly manner to discuss the alteration and the concerns you have. If you have a Strata Manager in place, they will be able to assist you in directing your concerns to the other members of the group.
This post appears in Strata News #354.
Tony Johnson
Stratarama
SCA (SA) Strata Community Manager of the Year 2018, 2017 & 2016
E: [email protected]
Question: To my understanding, every owner has equal right and say for any issue related to common property alterations, including any change regarding its use etc. and could be vetoed by a single vote in the meeting.
The garden area of the strata belongs to the ‘common area’ of the strata corporation. To my understanding, every owner has equal right and say for any issue related to common property alterations, including any change regarding its use etc. and could be vetoed by a single vote in the meeting. I understand there is no such thing as majority votes for decision making on what concerns alterations to the common area.
If this is the correct interpretation of common property alterations, what happens to issues like removing well established, healthy trees and replacing them with something else? If others decide to chop down the trees, could a single owner veto that decision?
I look forward to your answer if you could assist in this regard.
Answer: General maintenance matters do not require a special or unanimous resolution. A single vote cannot overrule a majority decision on such matters.
The common areas of the Strata Corporation will be outlined in your Strata plan. Assuming that the Garden areas you are referring to are not marked as unit subsidiaries on the plans, then they are common.
Each Owner is entitled to vote on matters regarding the property, however, few matters require a unanimous vote. The works you are referring to are simple landscaping or gardening decisions and not a changing of the use of the common area. The garden bed remains a garden, with simply a decision on pruning, planting, etc. These general maintenance matters do not require a special or unanimous resolution. A single vote cannot overrule a majority decision on such matters.
Below is a breakdown of the Types of resolutions and what they are required for. Hopefully, you will find this information, taken from the Strata Title Legal Guide for South Australia, helpful.
TYPES OF RESOLUTIONS
Ordinary resolutions
An ordinary resolution is one passed at a properly organised meeting of the corporation by a simple majority of the votes of unit owners present and voting on the resolution [s 3]. Decisions of a strata corporation are made by ordinary resolution unless the Act or articles specify otherwise.
Special resolutions
Special resolutions must be proposed by at least 14 days written notice to all unit owners, including the terms of the proposed resolution and the reasons for the proposed resolution [s 3(1)(a)].
A special resolution is required to:
- change or adopt new articles [s 19(2)]
- authorise the construction , alteration, demolition or removal of a building or structure, or authorise changes to the external appearance of a building by a unit owner [s 29(1)(b)]
- approve any special insurance [s 31(3)].
A special resolution is achieved if the resolution is passed at a properly convened meeting of the strata corporation and the number of votes (if any) cast against the resolution is 25% or less of the total number of votes that could be cast at a meeting at which all unit owners are present and entitled to vote [s 3(1)(a)].
Unanimous resolutions
A unanimous resolution is the same as a special resolution but passed without any dissenting (opposing) vote, that is nobody must vote against the resolution. Any unit owner who does not attend (or send a proxy to vote), or attends and chooses not to vote, is not counted as a dissenting vote.
Unanimous resolutions are required when:
- acquiring, dealing with or disposing of real property [s26(3)]
- granting to a unit owner exclusive use of part of the common property for a specified period [s 26(4)]
- distributing surplus funds from the sale of land [s 26(6)]
- determining contributions other than on the basis of unit entitlement [s 27(3)]
- permitting a unit owner to grant a lease or license over part of the unit to someone other than another unit owner (but no authorisation is required in relation to a lease or licence over the whole of a unit) [s 44(2)(b)]
- amending the strata plan [s 12]
- amalgamating with another adjacent strata plan [s 16].
This post appears in Strata News #192.
Tony Johnson
Stratarama
SCA (SA) Strata Community Manager of the Year 2018, 2017 & 2016
E: [email protected]
Question: Does a new owner have the right to make common property alterations, such as installing solar, without seeking body corporate permission?
I am an older tenant who has proxy authority (from my son, the lot owner) in a small group of 3 units.
15 months ago a new part-owner has bought into one of the units. This new owner seems very overbearing and acts as if she is the manager of the units workings without the authority or agreement of the other owners.
This new owner has her parents living in this unit as tenants, but this new owner has gone ahead without written permission to make common property alterations within the area that is their lot and close common ground to their own unit such as put in gardens and taken up pavers where there was lawn in the common area near their unit. When they have visitors they allow the visitors to park on the driveway infringing on other units. They have also put up solar panels on their roof without written notice to other owners, only a part verbal notice of their intentions.
This may be due to no knowledge of Strata legal guidelines. This new part-owner is very dominating & intimidating and unpleasant to deal with.
Being only 3 units there is no manager but rather the owners are self-managing.
Does new owner have the right to make common property alterations without seeking body corporate permission or can they just do their own thing?
Answer: You are aware that most common property alterations will require the approval of the corporation and I am sure you have been doing this in the past.
We find this is uncommon with professionally managed units but rather common in self-managed units.
You are aware that most make common property alterations will require the approval of the corporation and I am sure you have been doing this in the past.
When new people come into the strata they may not be aware of what is required and you may need to call for a meeting to explain what strata living is all about.
If you find that the person is not so easy to get along with, then you may find yourself in need for a Professional Strata Management to help you through these issues.
Remember when choosing a strata manager, make sure you choose one that is a member of the Strata Community Association (SCA), as this is the peak industry body for strata managers.
This post appears in Strata News #163.
Tyson D’Sylva
Ace Body Corporate Management
T: 08 8342 1544
E: [email protected]
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question from SA about common property alterations or something to add to the article? Leave a comment below.
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As an owner occupier can I have a say about the type of gardens surrounding my unit? The caretaker manager employee does not know anything about gardening or plants, only to mow and do the edging. He wants to fill the village with Australian natives which are low maintenance for him. I would like bright flowering plants around my unit.. he told me that if I want to remove established plants and replace them, I would have to do it myself as it is not in his ‘job description’. I had to get my family to come and help me do this.
I find this ambiguous because I rented out my unit for a short while and the tenant was allowed to decimate my 10+ year old established gardens without penalty which was clearly against by-laws. I believe the decimation devalued my unit as well. The original gardens were one of the reasons I bought the unit..
I just want to know where I stand as I have moved back into my unit and I want the gardens that I want to have. I feel that as the owners own the common property and if they are actually living here, and not as investors, they are entitled to have what they want surrounding their unit especially if it will beautify the area.
I moved out of my strata titled garden unit in late 2018 on temporary basis. I wanted to be live closer to my daughter for a little while and get away from village life. I rented out the unit through a real estate agent and the tenant moved in and within two weeks of moving in she approached the village manager and got him to rip out all the gardens surrounding my unit. These were well established gardens of many years and required very little maintenance – there were hedges, succulents, ferns, cordylines etc.. and it made the unit quite private and very green. I only found out about this recently from a woman living there as I had not been back to the village since I moved out. I cannot believe that this has happened and I was very distressed when I found out. I asked the then caretaker manager when I left that if the tenant wanted to change the garden could he please let me know first and he agreed to do this in an email, but he did not. He left the job a couple of weeks ago and there is a new manager there now. I did not know about the gardens til after he had left.
I have seen photos of the gardens as they appear now and they look awful, completely bare. I was in shock and still am and can’t get it off my mind. How can such a thing happen. The gardens are common area but surround my unit but I as an owner own these common areas along with other owners. Surely I could have been advised about such a major change… it was not just a tidy up, it took days to do it. I have written and complained to the Strata Managers and also to the Caretaker Managers and neither have even bothered to reply. Surely there must be some common sense shown by the village manager in cases like this where the change is so great and requested by a tenant who is not even managed by them. I feel it has probably devalued the unit as the gardens were lovely.
What do you think about something like being allowed to happen. I feel there should be a rule that when changes of this magnitude are made the owners should be advised beforehand. The tenant was only two weeks into her tenancy apparently. I myself am renting and I would never dream of changing anything without prior approval. In hindsight I should have put a clause in the lease… but it never entered my mind that this could happen.
There will be an inspection by the RE agent in a couple of weeks and I intend to go there and see what has happened myself and also check the inside of the unit for any other changes. The tenant told my friend that she intended to buy the unit out from under me (which will never happen)… so obviously she thought it was hers already. Her lease will not be renewed.
Hi Jenny
We have received the following reply from Tyson D’Sylva, Ace Body Corporate Management:
Thank you for your comments as it appears much of the question you have answered yourself.
Firstly it appears this is more of a tenant issue rather than a body corporate matter.
Yes if your agreement was more specific maybe this would not have happened. Also if the property manager educated the tenant of their responsibilities and boundaries this may not have occurred. It also appears there was a display of unclear management by the caretaker of maybe not knowing what the process is regarding changes. I don’t think there is one cause to this problem but multiple communication / education flaws.
The best thing you can do now is to raise this with the committee to see how this happened or your managing agent and see what action can be taken, however, it may be too little too late.
I’m the Secretary of a broad acre Strata property and although we are self-managed everything generally ticks along quite well. There are three Units on 75 acres. Each Unit has an autonomous 4 acres around their Units and the remaining 63 acres is common property.
Recently there have been instances with one Unit holder who is quite overbearing and who has acted without the authority or agreement of the other owners. This person placed a gate valve and a padlock and chain on a water pipe coming from the common water tank and which goes exclusively to another Unit. An action, which he argues, is justified because the other Unit was stealing his purchased water. [He was authorised by the other Units to store water in the common tank when the dam, which supplies the common tank, was empty.] I can assure you, his water was not being stolen, because the other Unit holder is me. :l
I’ve read the SA Strata Title Legal Guide with reference to pipework: “Common property includes any pipe .. that is not for the exclusive use of a Unit [any that service only one Unit are considered part of that Unit, not common property.] [s5(6), p5]
I believe the pipe in question is ‘part of the Unit, not common property’ because while the pipe does cross common land and go up to the common tank, it’s purpose is to receive water and return it to one Unit. I’d greatly appreciate any help regarding this matter. Thank you for your kindness.
At the beginning of this year I purchased a unit with my daughter as tenant. I repeated get voting slips from the company managing the units asking for a vote on sundry maintenance matters. From what I have rad this is outside the rules for SA that seem to require such decisions to be taken at meetings. I have raised this with the managers but they ignore the matter. The other 5 owners seem to be quite happy for this process to continue and just routinely vote no. That’s until today when I was advised of a yes majority. Am I correct and if so to whom do I now complain?
Hi Graham
We have received the following comment back from Tony Johnson, Horner Management:
This is a tough question as technically postal votes are not recognised by the Act, however, some groups use this practice to make decisions mid-year in between their meetings.
If you don’t agree with postal votes you can request a meeting be called to discuss such situations, however, in order to call a meeting you need to meet the criteria for calling a General Meeting (I will provide these below).
Owners may with these meetings, simply Return their proxy forms and not attend the meeting, which is essentially the same as putting in a postal vote.
Some Groups may prefer ballots to remove the possibility of feeling pressured into a certain decision. The use of a ballot system can remove additional costs to groups in some instances, by avoiding meeting fees. If you’re worried about not having the chance to discuss your thoughts or issues about the maintenance items you can ask your strata manager to forward your thoughts on the matter and encourage the other owners to contact you to discuss.
Below is a breakdown of the methods for calling a General meeting, which you may find helpful. This information has been taken from the Strata Title Legal Guide for SA.
A general meeting can be called by the secretary, or any two members of the management committee, or one fifth of the unit owners, or by order of the Magistrates Court [s 33(2)]. An application to the Magistrates Court (minor civil action jurisdiction) to call a general meeting can be made by the owner or occupier of a unit, a person who has contracted to purchase a unit, or any other person bound by the articles of the strata corporation (except for persons invited to or visiting the site) [s 41AA].
I am the presiding officer and secretary of a small 3 unit strata complex, we are self-managed so that means I do all the work on a voluntary basis. There is generally not a lot to do but a lot of disagreement occur when the other 2 units do things without the full knowledge of the strata regulation and insist that it is there right to do so. We have to live together and if I insist on following the rules that means to take legal action which in course will increase a feeling of discontent.
Because of your various Q&A I have been able to print out topics and confirm my comments. No real solution was ever found but it does give me some support.
So thank you for your publication.
Hi Edith
Thank you so much for your feedback. We are very happy to hear you find value in the Q&A articles and in LookUpStrata.