Thursday, 27th June 2019

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Stratajoy
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Joined: 22/02/2017

Hi - just wondering on the legality of creating a retrospective by-law to cover unauthorised works thay involve alteration to common property. Seems you can do whatever you like, have friends in the right places and all is OK! Not sure how this all fits into the Strata Act? Any help appreciated. SJ

billen ben
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Joined: 11/01/2012

65A retrospective approval of unauthorised work

 

When dealing with a s 65A matter in SCS 09/33122 Senior Member G Durie stated:

 

I have some doubt that the resolutions can be passed retrospectively. However, if they were not, Owners would be forced to demolish the work carried out, but then immediately install the doors again. In my opinion, that would put Owners to additional costs and would be a ludicrous path to follow.

 

Senior Member G Meadows in Wang  v Owners Corporation SP 69174  (Strata & Community Schemes) [2010] NSWCTTT 172 (29 April 2010)  

Again with respect, I agree with the adjudicator’s doubts, and in my opinion there is no power in the Strata Schemes Management Act 1996 permitting an owners corporation to retrospectively ratify work undertaken pursuant to section 65A of the Act.

 

And from 2EBR

 

40 Sections 45 and 65A are provisions of the third kind. They preclude particular action "unless" a particular form of resolution "has first been passed". Those two sections were introduced into the SSM Act by the Strata Schemes Management Amendment Act 2004 (NSW). Section 80D was added by the same amending Act. Its operative words, by contrast, are "unless a resolution is passed". The explicit requirement of s 45 and s 65A that the authorising resolution be passed before the action is taken ("has first been passed") was not adopted in s 80D ("is passed"). 2 Elizabeth Bay Road Pty Ltd v The Owners - Strata Plan No 73943 [2014] NSWCA 409

The paragraph is distinguishing s 80D from ss 45 and 65A. The 2EBR case focuses on retro approval of a s 80D matter. Retro approval of s 80D was allowed in this case but the distinguishing of section 65 A implies there can be no retro approval for s 65A.

 

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BurlFord
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Joined: 31/03/2016

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