WA: Q&A Amending or Adding Buildings on Common Property

This article is about amending or adding buildings on common property in WA.

Table of Contents:

• QUESTION: Without consultation, can our strata CoO turn an unused garden space into a visitor car park? Is council approval required?
• QUESTION: Does the strata council require the authority of the strata company to amend or add buildings on the common property?

Question: Without consultation, can our strata CoO turn an unused garden space into a visitor car park? Is council approval required?

Our building has an unused common property garden area. There are currently no visitor bays in the complex. Without holding a general meeting or a formal special resolution vote, can our strata CoO turn this garden space into a visitor car park? They have insisted owners pay for the groundwork. Is council approval required?

Answer: The Strata Council may simply be undertaking works as requested by owners in the scheme.

This is an interesting question. There are a few components to the question which we need to break down.

Can the Strata Council turn a current area of common property from a garden into a visitor’s carpark?

Let’s look at the general duty of the Strata Company, which is outlined in Section 91 of the Strata Titles Act:

A strata company must –

2. control and manage the common property for the benefit of all the owners of lots; and
3. keep in good and serviceable repair, property maintain and, if necessary, renew and replace –
   
   1. the common property …
   2. any person property owned by the strata company
4. A strata company may improve or alter the common property in a manner that goes beyond what is required under subsection (1).

According to sub-section (2) above, yes, the strata company may improve or alter the common property beyond repair.

Can the strata company turn a garden into a visitor parking area without council approval?

Unfortunately, without knowing which Local Council this is or where within the complex the proposed parking bay is located, this cannot be answered. Each Local Council has their own rules as to what is permitted and it would be suggested that any Local Council laws are checked, eg if a section of a verge can be changed to a parking bay and what other rules they may have in place which need to be adhered to when changing areas within the complex (eg if a building permit is needed) or where the cost is above a certain value.

Can the Strata Council proceed with this work without holding a general meeting or special resolution vote?

The functions of the Council are outlined in Section 135(1) of the Strata Titles Act:

1. The functions of a strata company, subject to this Act and to any restriction imposed or direction given by ordinary resolution, are to be performed by the council of the strata company.

Yes, it is my opinion that the Strata Council may proceed to undertake improvement works to the common property as per Section 91(2), as long as the expenditure is within a certain amount as prescribed (by the Regulations – $500 per lot per annum above the budget expenditure amount). Or if the expenditure is above the prescribed amount, authorised by special resolution of the owners, which would be done through a General Meeting or an Outside Meeting Resolution.

If there are not sufficient funds for the expenditure and the Strata Council may need to raise a levy on the owners, then this would also need to be taken to a General Meeting of the owners for consideration.

Whilst not specifically mentioned, this also raises a question about engagement / communication with the owners. Have owners raised concerns with the Strata Council about the lack of visitor parking at the complex and were they asked to look at how they may incorporate visitor parking into the complex? If so, then the Strata Council may simply be undertaking works as requested by owners in the scheme.

It is important to remember that the Strata Council is normally a group of volunteers doing their best to maintain and enhance the asset value of the complex for the benefit of all owners. If this change is beneficial, it is my opinion that this should be communicated to the owners and owners should be encouraged to be engaged in the process.

Disclaimer – the above is provided as general information only and the owner or the Strata Company should seek legal advice about their matter.

Marietta Metzger
magixstrata
E: [email protected]
P: 08 6559 7498

This post appears in Strata News #621.

Question: Does the strata council require the authority of the strata company to amend or add buildings on the common property?

Answer: The Council cannot make the decision to improve common property if the expense of the improvements is more than $500 per lot.

One of the new things in the legislation that came about was section 91(2) which the strata company actually may improve or alter the common property. So, under the old legislation, you actually weren’t allowed to improve the common property. What you had, you were stuck with. You couldn’t value add to it.

With the amendments to the legislation, you’ve now actually got that ability to improve common property. A lot of large schemes with excess land now have an opportunity to better utilise that land and maybe improve it.

So yes, the strata company can improve common property. ‘Can the council make that decision?’, No, they need to pass a special resolution to be able to improve the common property if the expense of it is more than $500 per lot.

Sustainable infrastructure is a different resolution, it is an ordinary resolution. Again, one of the great things to come out from SCA recently is guidelines around how you can now add sustainable infrastructure to your scheme. These complement the section 87 applications for improvements and works to lots. I think a lot of people don’t understand that any structure being added to the scheme requires a section 87. It doesn’t have to be structural alterations, it’s just alterations of the lot. So by and large, they do have to make an application under Section 87, or if it’s a survey strata, section 88 to improve their lot, and that is the resolution without dissent. Alternatively, they can go to SAT under Section 90 and bypass the Strata Company if they want to.

Scott Bellerby
B Strata
E: [email protected]
P: 08 9382 7700

This post appears in the November 2021 edition of The WA Strata Magazine.

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