January 15, 2020 at 6:31 pm #29054SandyMember
Thanks ts1904. I completely agree with your points and have been arguing that position (special resolution and by-law for all major works).
However there continues to be a strong view in my strata that section 111(c) allows the OC to write into our by-law that major works applications can be considered on a case-by-case basis with the potential for some to be approved via ordinary resolution without a by-law.
I don’t have enough legal knowledge to combat that argument. What do the words in 111(c) mean: ‘or in any other manner authorised by the by-laws’?
SandyJanuary 17, 2020 at 4:19 pm #29070Amanda FarmerExpert
On the waterproofing point, it may or may not fall under 108, but nor does it fall under 109 or 110. Arguable whether it falls under 142 (special privilege…?? maybe)
What is clear is that it requires a special resolution. I think we’re all agreed there. For the reasons ts1904 sets out, a by-law is also preferable – for record-keeping and traceability purposes. That’s why you’ll find most lawyers and good strata managers recommending a by-law, notwithstanding the law isn’t there to back it up.
I am a bit lost as to how 111 can authorise the strata committee to approve works involving waterproofing. It needs a special resolution.
Amanda.January 17, 2020 at 5:02 pm #29073SandyMember
What has been argued in my strata is that the final words in section 111(c):
by an approval of the owners corporation given by special resolution or in any other manner authorised by the by-laws
can be used to write into a by-law, such as a renovations by-law, that major works must be approved by resolution of the owners corporation and may require a special resolution, with the implication that the latter would be decided on a case-by-case basis.
In your view, what do the words ‘or in any other manner authorised by the by-laws’ in section 111(c) mean?
thank you again
SandyJanuary 22, 2020 at 9:56 pm #29189Amanda FarmerExpert
I accept that the s 111(c) wording is broad, but an attempt to pass a by-law that says (for example) that the strata committee can approve renovation works involving waterproofing would in my view be a by-law that conflicts with the Act. Section 136(2) applies to invalidate the by-law:
(2) A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.
Such a by-law is (in my view) inconsistent with the Act because the Act already provides a regime by which renovation works can be approved by the strata committee, and this is in section 110. Waterproofing is expressly excluded from that regime.
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