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WA: Q&A Can one owner stop a senseless strata decision?

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This article is about council of owners decision making and what lot owners can do to challenge this.

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Question: We are replacing the pool lining of our pool. Are there any legislative restrictions on the colour lining we can have?

We are replacing the pool lining of our pool. Are there conditions on what colour we can choose?

Some of us would like a change from the standard light blue to a darker blue with flecks of silver.

We’ve been told that because there are more than 20 residents over eight levels, we are restricted to the standard light blue. Is this correct?

Answer: The works should comply with relevant government regulations.

In general, there are no specific by-laws or regulations stipulated in the Strata Titles Act 1985 or Strata titles (General) Regulations 2019 that clarify any regulations on a pool lining colour in a strata scheme. However, the works should comply with any relevant government regulations.

First, it would be ideal to seek appropriate advice on the classification of the aquatic facility in your strata scheme and its use, as different regulations and requirements for each classification may apply.

With the assumption that the strata company is engaging a qualified contractor to carry out the replacement of the pool lining, it is suggested that the contractor also exercise due diligence and review any necessary regulations with the selection of the pool lining colour to ensure it is compliant, before submitting a quote.

Some suggestions on where you may like to seek further information:

refer to document; Health (Aquatic Facilities) Regulations 2007

Or it may be best to contact your local government office. They may be able to point you in the right direction for seeking appropriate information.

Ashlee Whitwell
Emerson Raine
E: [email protected]
P: 08 9707 3843

This post appears in the March 2023 edition of The WA Strata Magazine.

Question: Our request for permission to install an air conditioner has been refused due to concerns about the overload on our MDF. Although the Council is looking into this, it’s been 3 months. How do we get this moving along?

We are the property managers for a unit in a WA strata scheme. The landlord would like to install a split system air conditioner in their lot. We’ve requested via the strata manager, approval from the Council of Owners for the installation of the air conditioner as the compressor has to be fitted on the outside wall of the unit.

The Council of Owners has refused approval because they think the main electrical distribution board may not cope with the extra load. There are other air con units installed by other owners and surely it is up to the Council of Owners to upgrade the MDF. Our request was submitted over 3 months ago and we are still waiting on a reply.

Recently, I emailed the strata manager giving her 7 days’ notice to reply with an update or we will take the issue to SAT. Her response was that the MDF hasn’t been assessed but the matter will be bought up at the next AGM. My landlords want a response now. Before we know it summer will be here and they risk losing our tenants due to the extreme heat, especially in the main bedroom.

Do we have a case if we go to SAT? Surely residents are entitled to have air conditioning in a unit, especially as other unit owners have been allowed to install air conditioning in theirs. What are reasonable timeframes for a request like this?

Answer: When a Strata Company receives an application for alteration, voting on the application must open within 35 days of the application being received.

This is a difficult question to answer as there are so many variables to be considered such as – is the external unit on common property or external part lot.

The concern that the electrical infrastructure may not be sufficient enough to support the addition is something faced by many schemes at this time, in particular surrounding the installation of EV charges. My advice would be to work with the strata company on this. I would encourage your strata company to devise a plan to facilitate an upgrade to the infrastructure so that there is a clear and reasonable plan and timeframe for this to occur. Such a plan should take into account estimated future electrical demand as well.

Given a recent State Administrative Tribunal Decision where the attachment of lattice was considered a structural alteration I suggest the air-conditioning installation is, in any case, a structural alteration. Understanding that, historically, it would most likely not have been treated as such. Case law now suggests otherwise but I disclose that I am not a lawyer and the advice given here is based on experience only. I recommend seeking legal advice in any case.

Assuming that you’re in a strata title scheme comprising of more than two lots, Section 87 of the ACT states that a resolution without dissent of the Strata Scheme is required to approve structural alterations unless you have the prior written consent of all owners in the scheme. In the case of having prior written approval from all lot owners, you would need to serve those approvals on the Strata Scheme.

In the case of such an application, an owner can only vote against the application if the reason for the vote against is one listed below. A vote against must provide the reason to be valid.

  1. that the carrying out of the proposal will breach the plot ratio restrictions or open space requirements for the lot; or

  2. in the case of a lot that is not a vacant lot, that the carrying out of the proposal —

    1. will result in a structure that is visible from outside the lot and that is not in keeping with the rest of the development; or

    2. may affect the structural soundness of a building; or

    3. may interfere with a statutory easement; or

    4. that the carrying out of the proposal will contravene a specified by-law or specified by-laws of the strata company; or

    5. that the carrying out of the proposal may interfere with a short form easement or restrictive covenant or any other easement or covenant affecting the parcel that is shown on the scheme plan or registered against the parcel.

If you submit this application for alteration, the Strata Company must convene a general meeting for consideration of your application. Your application must contain certain information as provided for by Section 89(1) of the Act and Regulation 75 being:

  1. For the purposes of section 89(1), the following information is prescribed —

    1. plans and specifications for the structural alteration;
      the additional information prescribed for the type of structural alteration concerned by this regulation.

  2. The following additional information is prescribed for a structural alteration of a lot on a strata plan —
    1. the plot ratio restrictions and open space requirements in relation to the parcel;

    2. the pro rata entitlements of the lot;

    3. if the application is approved, the area of the structure, including the area of all existing and proposed structures to be taken into account for the purposes of calculating the plot ratio restrictions and open space requirements;

    4. whether or not the carrying out of the proposal will breach the pro rata entitlements of the lot and, if it does, the percentage and area by which the pro rata entitlements of the lot is exceeded;

    5. the location and dimensions of the proposed structure upon its completion in relation to any existing structure on the lot or to the boundaries of the lot;

    6. any contravention of the by-laws of the strata company, whether of a permanent or temporary nature, which is likely to occur during or as a result of the erection, alteration or extension of the structure, and any proposed manner of dealing with that contravention;

    7. any likely interruption to or interference with any statutory easement, short form easement or restrictive covenant or any other easement or restrictive covenant affecting the parcel that is shown on the scheme plan or registered against the parcel, whether of a permanent or temporary nature;

    8. whether the structural alteration of the lot changes the boundaries of the lot and whether the applicant has sought advice from a licensed surveyor about the effect of the structural alteration.

When a Strata Company receives an application for alteration, voting on the application must open within 35 days of the application being received. If it does not, the applicant can convene a general meeting as if it was being convened by the strata company and do as nearly as possible as if it were being convened by the Strata Company, understanding that the applicant may not hold all the same information about owners.

Regardless if the Strata Company has not, at the expiration of 77 days from receiving the application, made a written objection to the alteration or made a written objection that does not provide the grounds of the objection being one permitted for a vote against the application then the application becomes deemed approved.

Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999

This post appears in Strata News #620.

Question: My strata has major capital works to carry out around the complex. At the general meeting, we opted for the loan although we have sufficient funds to finance repairs ourselves. Can our Strata company can impose a loan on me?

To ensure compliance with legislation, my strata company took a strata loan to finance major capital works around the complex. At the general meeting, we opted for the loan although we have sufficient funds to finance repairs ourselves.

The strata manager sent us an invoice requesting us to pay instalments for the strata loan. When I asked the strata manager to provide me with an itemised invoice, I was advised that is too hard (lots of accounting) and the Council’s approval was needed. Please advise if Strata company can impose a loan on me.

Answer: The Strata Titles Act does allow a Strata Company to take out a loan provided it has been motioned and passed i.e. has been agreed.

The Strata Titles Act does allow a Strata Company to take out a loan provided it has been motioned and passed i.e. has been agreed. It is noted in your question that in General Meeting it was agreed to opt for the loan, and if a majority of Owners agreed then yes it is passed and the Strata Company can then take out the loan. In regards to the invoice you are being sent it would have also been agreed at the meeting as to the levy amounts and dates.

Jamie Horner
Empire Estate Agents
E: [email protected]
P: (08) 9262 0400

This post appears in Strata News #616.

Question: Our scheme has washing machines. The maintenance of the machines has been outsourced to a contractor and charges for use have been introduced. Can residents be charged a fee to use items of common property?

Our scheme has washing machines. Over time the strata company has introduced and now increased the price of using the machines. The maintenance of the machines has been outsourced to a contractor.

When I purchased my unit there was no mention of any additional costs above my levies. There is no bylaw about additional costs associated with the washing machines.

Can residents be charged a fee to use items of common property? Where can I find information about the decision making process to adopt this practice in our building?

Answer: Without passing a by-law, I would argue that the scheme cannot charge owners to use the machines and the strata company needs to budget for this expense in the levies.

The scheme should introduce a by-law and as the by-law would relate to the payment of money by an owner, it would likely be classified as a governance by-law under the definition in section 3 of the STA.

The scheme has a positive obligation under Section 91 to keep in good serviceable repair, properly maintain and, if necessary renew and replace common property and this would include the washing machines, assuming they were originally provided as part of the scheme on registration.

I’m also assuming that the strata company made a decision that rather than maintain the machines and thus pay for this expense through increased levies, they removed this expense by outsourcing the provision and/or maintenance of the machines to a third party. The third party provides this service by charging residents for the use of the machines. Without passing a by-law, I would argue that the scheme cannot charge owners to use the machines and the strata company needs to budget for this expense in the levies, regardless of whether all of the owners are subsiding this cost for only a few users of the machines.

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

This post appears in the October 2022 edition of The WA Strata Magazine.

Question: The Strata Company in our 5 lot scheme has been maintaining one lot’s roses. This places a financial burden on me. There are no bylaws in place for this. What recourse do I have?

Our 5 lot Strata company maintains Lot No 2 roses. The roses are not on common property. This item has been raised at our annual general meeting as to who’s responsibility it is to maintain the roses, as the roses have been considered part of the entry statement.

The cost to maintain these roses is excessive. Owners are required to decide on whether the strata company maintains the roses or not. If yes, we are strongly encouraged to lodge a by-law. I was the owner who raised concerns and I’m worried I will be outvoted. I am a new owner.

This maintenance of a lot owner’s roses places a financial burden on me. What recourse do I have?

Answer: The Strata Company, at this stage, does not have the authority to expend strata company funds towards private property.

If the roses are within an individual lot area, then the ultimate responsibility to maintain the lot rests with the owner of that Lot (i.e Lot 2). The Strata Company, at this stage, does not have the authority to expend strata company funds towards private property.

If the Strata Company considers lodging a bylaw conferring the maintenance of that area to the strata company, it would be, in our opinion, a Governance Bylaw where a Resolution without Dissent is required; the owner lodging this question may vote against which would mean that the bylaw is not able to be registered.

We suggest that a bylaw be registered stating that the owner of Lot 2 must maintain the lot area gardens to an acceptable standard and if not done by the owner of Lot 2, the strata company may arrange for the works and charge the owner of Lot 2. Again, in our opinion that would be a Governance Bylaw requiring a Resolution without Dissent.

Please note that any changes to the bylaws of the Strata Company would require a consolidated set of bylaws to be registered with Landgate. The Strata Company may choose to obtain their own legal advice on the preparation of the consolidated bylaws.

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

This post appears in Strata News #599.

Question: Due to a recent break-in, access via a fire door has been restricted, causing residents inconvenience. Can a COO impose such a restriction?

Recently, we had a break-in into our underground garage. It looks like they gained access through the fire escape door on the street level and descended down the steps into the garage. They stole a number of items over 2 hours.

The door on the street is accessible by key. The lock on this door has been changed and the strata council have denied new keys to owners. This is inconvenient as the access is next to the bin room so you would normally put your rubbish in the bin and then use the access door to descend into the garage. No residents have to walk down the street and go in through the front door to the lift or open the garage gates to get to your vehicle. Can a COO impose such a restriction?

Answer: It is reasonable for the council of owners to take steps to improve the security and safety of those in the building.

Your question mentions that the door in question is a fire door. I will assume that the mechanism for the opening of the door from the inside has not changed from a fire safety perspective.

All lot owners are equally entitled to the use and enjoyment of common property unless the strata company by-laws provide otherwise (including an exclusive use by-law). Based on the information at hand, I will exclude the idea of restricting access to common property and assume there is access to common property but the exclusion of the use of this door provides inconvenience as appose to restricting access.

Section 91 of the STA1985 provides for the general duty of a Strata Company. Part of the reasonability of your council of owners is to ensure the Strata Company meets its obligations under section 91. Section 91 (1)(b) requires that the Strata Company controls and manages the common property for the benefit of all the owners of lots. Building security is a risk for consideration for any Strata Company and its council of owners.

Often councils must make tough decisions in order to do what they can to protect the security of those in the building. Given the circumstances provided, my opinion is that it would be a reasonable step for the council of owners to take in restricting who has external access to the door in question if they believe doing so would improve the security and safety of those in the building, provided that by doing so they are not restricting lot owner access to any area of common property that is not subject to by-law restriction in relation to use.

Luke Downie
Realmark
E: [email protected]
P: 08 9328 0999

This post appears in the August 2022 edition of The WA Strata Magazine.

Question: Are decisions made by a CoO arrived at by majority rule?

Answer: At meetings of the council, all matters must be determined by a simple majority vote.

Please refer to the standard Schedule 1 by-law 8.

8. Meetings of council

  1. At meetings of the council, all matters must be determined by a simple majority vote.

Shane White
Strata Title Consult
E: [email protected]

This post appears in Strata News #545.

Question: At the recent AGM, a motion was passed to spend $90K+ on a security upgrade. As a small group of owners who oppose due to lack of transparency around the decision, what can we do?

At the recent AGM, a motion was passed to spend $90K+ on a security upgrade, which includes a sizeable special levy to raise some of the funds. No details about the cost estimate or scope of works were provided to owners.

The vote was passed because few owners attended the AGM and many gave their proxy to the Strata Council. As a small group of owners who oppose this expensive security upgrade due to lack of transparency, higher maintenance priorities (eg water ingress), and low cash reserves, what independent avenue of appeal is left for us? Can we take the issue to SAT for adjudication? What are our other options?

Answer: If the motion was passed as an Ordinary Resolution, the special levy should have been included in the Budget that was submitted for approval at the meeting.

Ideally we need some additional information to respond in detail to this query – for example, how many lots are in the strata scheme, and what was actually being proposed to be done as part of the ‘security upgrade’ (for example, does that mean new/improved fencing, automated gates, alarm systems, CCTV, security guard patrols, etc?).

If the motion was passed as an Ordinary Resolution (as per Section 133 of the Act) which is a simple majority of those present and represented by proxy who were entitled to vote at the meeting, Section 102 also applies in that the special levy should also have been included in the Budget that was submitted for approval at the meeting.

Depending on the details of the ‘security upgrade’, the provisions of Section 91 (2) may also need to be met, which means a Special Resolution rather than an Ordinary Resolution was needed.

Some clarity on the comments above, plus a professional legal opinion, would be beneficial before an application is made to the SAT.

Andrew Chambers
Chambers Franklyn Strata Management
E: [email protected]
P: 08 9200 4200

This post appears in Strata News #528.

Question: Our strata manager is proposing new spots for our bins. This whole idea rings safety issues for me and possible injury claim from our public liability insurance should it get the go ahead. How can I stop this?

What WA regulation would apply to not allowing the bins area to be relocated?

Our strata manager is proposing new spots for our bins. Instead of one designated area, he is looking to split the spot into three separate locates, all with access issues.

This whole idea rings safety issues for me and possible injury claim from our public liability insurance should it get the go ahead. The current bins area is easily accessible with no safety issues. Also, the relocation will require funds that I feel do not need to be spent.

This has all come about because a tenant and an owner want the bins moved. I’m looking for a Regulation, a specific area of reference to quote so this senseless plan gets stopped.

Answer: It is very important to note that any proposal for work to common property should come from the council of owners or the owners at a General Meeting.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

Firstly, you may find that there are regulations or restrictions imposed by the local council. As a first step, we would, therefore, encourage you to contact your local council to request further guidance on whether or not they have any restrictions in place regarding your bin area. This is likely to take factors into account such as what type of bins you have (are they household sulo bins or are they bulk bins) and whether the bins are collected from the bin area or whether they are required to be placed on the verge for collection.

Secondly, you have mentioned that the proposal to move the bins has come from your Strata Manager which you believe will create access issues and potential safety hazards. It is not clear from your enquiry whether or not there is an active council of owners and if the Strata Manager intends to make the decision, with or without authority.

It is firstly very important to note that any proposal for work to common property should come from the council of owners or the owners at a General Meeting. A Strata Manager is a service provider engaged to act on instruction received from the council of owners and therefore it’s important for you to identify whether or not the council of owners, or owners at a General Meeting, have initiated this proposal (rather than just one individual owner or tenant).

The Stata Manager does not have any authority to proceed with arranging work without being instructed to do so by the council of owners or by a resolution at a General Meeting.

Lastly, it is also important to familiarise yourself with Section 35 (1)(b) and (c) of the Strata Titles Act 1985 “Duties of strata companies” (note that the ‘strata company’ is all owners collectively, not to be confused with the Strata Manager) which states that the strata company shall control and manage the common property for the benefit of all proprietors (more commonly referred to as owners) and keep in good and serviceable repair, properly maintain and, where necessary, renew and replace the common property.

The Strata Titles Act 1985 does not include a provision for the strata company to ‘upgrade’ or ‘alter’ common property, only to manage, control, maintain, renew and replace. Depending on the circumstances of this particular case, relocating the bin area may require an alteration to the common property in which case the decision would need to be made at a General Meeting (at which all owners are invited to attend and vote) and legal advice should be sought on the type of resolution required at that meeting given there is no provision to make such a decision in the Strata Titles Act 1985.

Disclaimer: The above information is provided solely for general information purposes and should not be taken as constituting legal advice or advice that is specific to your particular circumstances. You may consider seeking independent legal advice to see if the information provided relates to your circumstances.

Strata Community Association WA (SCA WA) is the peak industry body representing people who own and work with strata property in Western Australia by providing education and advocacy. Our members consist of strata lot owners, council of owners’ members, professional Strata Managers and associated service providers. Strata is a complex area of the property industry and it can be difficult to navigate without having access to professional assistance. To support our members, we offer a member-only Advice Line that provides general advice, information and guidance. Join SCA WA today from only $60* per annum to gain access to the Advice Line and other member benefits. Contact us to find out more!

Strata Community Association WA
E: [email protected]
P: 08 9381 7084

This post appears in Strata News #208.

Have a question about stopping a senseless proposal to move the bins and potentially causing safety issue or something to add to the article? Leave a comment below.

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Please note this advice was provided prior to the proclamation of the new strata title amendments and will be updated in due course.

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