These questions about the decision-making process for common property alterations have been answered by Tony Johnson, Horner Management and Tyson D’Sylva, Ace Body Corporate Management.
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.
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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
Horner Management
SCA (SA) Strata Community Manager of the Year 2018, 2017 & 2016
T: 08 8234 5777
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.
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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.