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Posted 26 July 2017
Category: Strata, Renovations
As strata schemes age, it is a common occurrence for lot owners to wish to renovate their units. However, it is often a source of conflict between the owner and the owners corporation over what require approval and what areas of common property are able to be affected by the works or granted rights over.
An owners corporation can refuse requests for owners wishing to perform works at any time in any circumstances.
There is no requirement for an owners corporation to provide reasons why an owner’s works are approved or refused.
When considering an owners request to undertake works, an owners corporation may wish to take into account such things including:
If an owners corporation refuses a request, an owner can seek orders under section 126(1) of the Strata Schemes Management Act 2015 to:
if the Tribunal considers that the owners corporation has unreasonably refused its consent to the minor renovations or alterations or repairs.
An owner can also seek orders under s 149(1)(a) of the Strata Schemes Management Act 2015 that the owners corporation has unreasonably refused to make a common property rights by-law. The Tribunal can only make orders of this nature when:
When considering the question of whether the owners has unreasonably refused to make a common property rights by-law, the Tribunal will balance the interests of all owners in the use and enjoyment of their lots and common property against the rights and reasonable expectations of any owner deriving or anticipating a benefit under a common property rights by-law.
In the case of Ainsworth v Albrecht  HCA 40, the High Court considered the question of when it was reasonable to refuse the making of an exclusive use by-law in a community title scheme in Queensland.
The facts concerned a lot owner’s wish to amalgamate two balconies in his townhouse together with the associated common property.
In this instance, the majority of the Court deemed that it was not to determine whether the outcome of the vote was a reasonable balancing of competing considerations but whether the opposition of lot owners to the proposal was unreasonable.
The Court held at paragraph 64 that the test for determining whether opposition to a motion was unreasonable was that:
“The proposal in question was apt to create a reasonable apprehension that it would affect adversely the property rights of opponents of the proposal and the enjoyment of those rights. In these circumstances, opposition of the lot owners who dissented from the proposal could not be said to be unreasonable. “
The Court also provided an inexhaustive list of factors that it could consider in determining whether opposition to a motion was unreasonable including:
Depending on whether you are seeking to undertake works within a strata scheme or whether your owners corporation wishes to preclude an owner from undertaking works or obtaining an area of common property, it is wise to obtain specialist legal advice if you want to obtain the best results.
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.