SA: Q&A Common Property Alterations – Allowed without consent?

These article is about the decision-making process for common property alterations.

Table of Contents:

• QUESTION: In my four lot strata scheme, the other three owners will not allow me to install solar panels. What are my options?


• QUESTION: With committee permission, is it possible to provide a professional beekeeper with a space for a beehive? The area is in a fenced corner of an unused lawn.


• 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?

Question: In my four lot strata scheme, the other three owners will not allow me to install solar panels. What are my options?

I own and live in a group of four strata units. At the two previous AGMs, I requested permission to put solar panels on my section of the roof. The three other owners vote no. The roof is sound and in good condition. Will strata laws in SA change and allow an owner to install solar panels?

Answer: Unit owners can apply to the Magistrates Court if they feel a corporation’s decision is unreasonable, oppressive or unjust.

Unfortunately, permission to install solar panels on the roof (common property) requires a special resolution. It is defeated if two or more owners vote against the motion in a group of four. If you feel the decision is unfair, you could request that a general meeting be called so you can discuss the proposal with the other unit owners to find out why they are objecting to the request.

If owners continue to vote against your request for solar panels, you can apply to the Magistrates Court under section 41A – Resolution of disputes. Unit owners can make an application under this section if they feel a decision of the corporation is unreasonable, oppressive or unjust.

Concerning amendments to the Strata Titles Act for all owners to install solar panels without approval, the Strata Titles Act is currently being reviewed. However, I do not believe there is any reference to solar panels in this draft.

Carrie McInerney Horner Management E: carrie@hornermanagement.com.au P: 08 8234 5777

This post appears in Strata News #653.

Question: With committee permission, is it possible to provide a professional beekeeper with a space for a beehive? The area is in a fenced corner of an unused lawn.

With committee permission, is it possible to provide a professional beekeeper with a space for a beehive? The area is in a fenced corner of a quarter-acre unused lawned area, far from foot traffic and out of sight, which would be maintained by the beekeeper and subject to a negotiated agreement between him and our strata. Are there any clauses in the legislation that would deny this placement?

Answer: If the Committee are happy to approve the use of the land for beekeeping, there should not be any issues if the land is allocated to a unit owner who is using the area.

If the Committee have been elected on behalf of the Corporation and are happy to approve the use of the land for beekeeping, there should not be any issues if the land is allocated to a unit owner who is using the area. However, in this instance, I am a little unsure if the area is going to be used by an owner or someone else and it appears it may actually be common property and not a yard subsidiary.

If the area is in fact common property, then your Committee do not have the power to authorise the exclusive use of common property and a unanimous resolution needs to be passed. The other question I would be asking is, are there any requirements under the council bylaws relating to beekeeping. I would be suggesting the council also be contacted before passing the approval.

Carrie McInerney Horner Management E: carrie@hornermanagement.com.au P: 08 8234 5777

This post appears in Strata News #550.

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.

Tony Johnson Stratarama SCA (SA) Strata Community Manager of the Year 2018, 2017 & 2016 E: Tony@stratarama.com.au

This post appears in Strata News #354.

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].

Tony Johnson Stratarama SCA (SA) Strata Community Manager of the Year 2018, 2017 & 2016 E: Tony@stratarama.com.au

This post appears in Strata News #192.

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.

Tyson D’Sylva Ace Body Corporate Management T: 08 8342 1544 E: tyson.d@acebodycorp.com.au

This post appears in Strata News #163.

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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Read Next:

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• SA: Q&A Strata Maintenance Responsibility – Who looks after balconies?

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