1 April 2021
Strata Managers as Fiduciaries
A paper by Gary Bugden OAM. April 2021. Preliminaries 1. Coverage In this paper I will consider: what we mean by a “fiduciary”; how to determine if a fiduciary relationship…
In our one-year-old building, two apartments had patios added to their outdoor living areas. When I asked about the approval of the patios, the plans, etc., I was informed the selling agent had given approval. The decision was made without consent from other owners, as the agent was the only committee member at that time. Can the agent do this?
The roof of one of the patios is causing light to reflect into the apartment above. Is this now our committee’s issue to solve?
This question is a Patio Pandora’s Box! There is a raft of potential issues here. At the outset, I strongly recommend you get legal advice from a strata lawyer as soon as practicable and within the 3 months allowed to challenge body corporate decisions.
If we assume that the sort of patio we are talking about is a roofed structure, and the owner of the adjacent lot/s already has the right to use the land on which the patios have been put, the range of ‘approvals’ required could be, at the least, a committee approval under a by-law about ‘external appearance‘ changes to the lot/s, and at the worst, the requirement of a resolution without dissent to be passed at a general meeting to approve encroachment of part of the roof structure into the adjoining common property airspace.
A BCCM form 12, requesting copies of body corporate records, or even better, an inspection of the body corporate records for you by an experienced search agent, should elicit the relevant documents (or as sometimes happens, show that the relevant documents don’t exist!). Once you have the documents, you will be well armed to talk to your strata lawyer including about:
Over and above that, you could also discuss both the likely ongoing nuisance issue and the potential for a breach of the development approval for the scheme, which often comes from either (fully or partly) enclosing a balcony outdoor space or adding to the total area of land ‘under roof’. You can do this all yourself at your cost, or you can seek to enlist the assistance of your committee.
There are (very) good reasons the committee should dig into the issue, including (for example):
From personal experience, I might add that structures like these installed after establishment of the community titles scheme are almost always constructed in a way that breaches waterproofing measures, such as membranes. Early identification of such a breach and addressing it before the damage is done downstairs, is something any sensible committee should do.
This article by Queensland Partner Michael Kleinschmidt first appeared in the September edition of The QLD Strata Magazine from LookUpStrata Pty Ltd.