Hypotheticals by Manny Wood Published in the Coffs Coast Advocate on 30 March 2019.
David is looking into purchasing a unit in a Strata complex.
David examines the contract and is pleased that it contains a special by-law granting him the right to park his vehicle on common property.
David exchanges contracts and the matter settles in April 2000.
Many years pass and one day David is advised by the body corporate that he does not have a right to park his vehicle on common property and he will need to park his vehicle elsewhere. Apart from the inconvenience, he is concerned about the effect of not having a parking-space on the value of his unit.
David investigates the matter and discovers that the body corporate conducted a meeting before the settlement of his purchase whereby a special resolution was passed to the effect that the by-law relating to parking on common property was repealed.
It is also revealed that the change to the by-laws was not registered until 2017.
David commences action against the body corporate in the Supreme Court.
David claims that the change required the consent of all unit owners and because this did not occur, the change is not binding.
At the hearing, the court reviews the evidence and finds that the written consent of all the owners was not obtained in relation to the repeal of the by-law. The court also finds that this was necessary to pass the special resolution.
However, the court also finds that under the legislation, “it is conclusively presumed after two years that all conditions and preliminary steps precedent to the repealing of a by-law have been complied with and performed”.
Unfortunately for David, the court follows the legislative provisions and dismisses his claim.
If you would like Manny to address a particular legal issue, send your request to manny.wood@ticliblaxland.com.au or call him on (02) 6648 7487.
