Ineffective Strata Minority Cram Down Rule Creates Problems

October 4, 2023 Edward Dever

The Queensland Government may wish to cast an eye towards NSW before finalising amendments to its strata legislation which will permit 75% of owners to terminate uneconomic community title schemes.

On 24 August 2023, the Body Corporate and Community Management and Other Legislation Amendment Bill 2023 was introduced into the Queensland Parliament. The Bill was referred to the Legal Affairs and Safety Committee for detailed consideration. The closing date for written submissions was a mere nine days later on 2 September. The Qld Law Society raised concerns in their submission regarding the short timeframe.

Under the proposed Queensland amendments, minority unit owners may be forced to sell their units in circumstances where there are economic reasons for terminating the scheme supported by 75% of the scheme owners.

This reform was described as "deliver[ing] a key action of the 2022 Queensland Housing Summit by reforming the BCCM Act to allow for termination of uneconomic community titles schemes to facilitate renewal and redevelopment."

The Bill's Explanatory Notes specifically refer to "having regard to the New South Wales approach."

The only problem is that terminating schemes in NSW has not been that simple with only a handful of schemes apparently managing to negotiate a sale. Developers are now saying they "aren't interested in buying older buildings unless there’s 100 per cent agreement from owners to sell."

Designed to protect the elderly owner from unscrupulous developers, at least in one instance in NSW, the reverse seems to have occurred - protecting a rival developer from the building's elderly owners. The NSW amendments have not prevented strategic blocking attempts by competing developers.

The NSW Minister for Better Regulation and Fair Trading has vowed to fix the glitches. “The NSW government is committed to updating and reforming this system, including fixing the loopholes that have made it out of date."

Perhaps the Queensland Government will revisit its amendments before passing a Bill with baked-in glitches, at least based on the NSW experience.

The Legal Affairs and Safety Committee is due to hand down its Report on 6 October.

This law was meant to solve Sydney’s housing crisis. It’s left owners devastated

Legal Affairs And Safety Committee - Body Corporate and Community Management and Other Legislation Amendment Bill 2023

October 2023

The content of this publication is intended to provide a general overview on matters which may be of interest. It is not intended to be comprehensive. It does not constitute advice in relation to particular circumstances nor does it constitute the provision of legal services, legal advice or financial product advice.

Pets in Apartments - NSW Update

July 27, 2021 Edward Dever

Some interesting comments in the post-Cooper March 2021 decision in McGregor v The Owners – Strata Plan No 74896 [2021] NSWCATCD 1.

This NCAT matter involved the refusal by an owners corporation for a dog to be kept in an apartment block which was part of a larger complex, each block with separate by-laws and all subject to a community management statement.

The applicant dog owners were self represented. And that was probably their downfall.

The by-laws expressly prohibited dogs but not other pets such as cats, with an exception in the townhouse by-laws for small dogs which were permitted in the townhouse section of the complex.

The applicants placed significant reliance on the decision of the NSW Court of Appeal in Cooper. In that case, the effect of the Court’s decision was that a “blanket ban” on the keeping of pets was “harsh, unconscionable or oppressive”.

The applicants' prime application was misconceived as it sought relief under Section 157 of the Strata Schemes Management Act which allows the Tribunal to approve a pet where the by-laws permit a pet with owners corporation approval and that approval has been unreasonably withheld. Neither of these conditions was met.

The applicants also chose the wrong by-law to request the Tribunal to declare as invalid. The applicants should also have included the Community Association as a respondent.

In the circumstances, it was not necessary for the Tribunal to consider the effect of Cooper on the relevant by-law but the Tribunal did note that the by-law did not, in any event, constitute a “blanket ban” of the type considered in that decision.

It will be interesting to see whether other owners corporations seek to distinguish Cooper on the basis that their by-laws, while prohibiting dogs, do not prohibit other animals.

July 2021

Residential Property - NSW Proposes Support To Eliminate Evictions and Rent Strikes

April 13, 2020 Edward Dever

The NSW Government has proposed the following initiatives during COVID19:

Amount - $220 million for residential tenancy relief.

Eligibility - Applies to tenants who have lost at least 25% of their income.

Rent deferral - Any unpaid rent accrues as arrears and needs to be eventually paid by the tenant.

Moratorium - Interim 60-day moratorium for new applications to NSW Civil and Administrative Tribunal for forced evictions over COVID-19-related rent arrears.

Land Tax - Waiving land tax or providing up to a 25% rebate if accommodating tenants under financial stress.

This article sketches some broad strokes. It will be interesting to see the detail on exactly who qualifies and the limits of any relief.

NSW Government to announce $440 million coronavirus rental assistance with moratorium on forced evictions

https://www.abc.net.au/news/2020-04-13/nsw-coronavirus-to-announce-440-million-dollar-rental-assistance/12143646

April 2020