Question: The owners corporation refused to approve an owner’s request for renovations due to unpaid levies. Is this reasonable?
A lot owner has not paid strata levies for years. They have requested approval to install timber flooring. The owners corporation refused the request for renovations, due to the lot owner’s unpaid levies.
The owner went ahead with the renovations regardless and installed the flooring. What can the owners corporation do?
Answer: It is always wise to treat separate matters separately.
Tim Sara, Strata Choice:
It is always wise to treat separate matters separately.
For example, section 110(2) of the Strata Schemes Management Act 2015 (NSW) (‘the Act’) requires an owners corporation to not unreasonably withhold approval for minor renovations (which includes installing wooden or hard floors).
To remedy this, an owner can seek orders from the NSW Civil & Administrative Tribunal for unreasonably withholding approval. A tribunal member would likely question the link between levy payments and a flooring application. There are legal mechanisms for an owners corporation to follow to recover unpaid levies and that would be the appropriate remedy for addressing that matter.
There are legal avenues to address unauthorised works in strata schemes, and the avenue depends on the type of works. Hard flooring is considered a minor renovation under section 110 of the Act.
Shane Williamson, Williamson Lawyers:
Legal advice should be sought, however, generally speaking:
Section 111 of the Act states that the owner of a lot may not carry out work on the common property unless authorised to do so.
Section 132 of the Act provides that, if the NSW Civil & Administrative Tribunal is satisfied that the work caused damage to the common property or another lot, the Tribunal may make an order requiring the owner to rectify the damage or pay for the cost of the repairs.
There are a number of factors that need to be considered before action is taken pursuant to either of these sections, such as, for example:
- the type of floor covering in place before the timber flooring was installed and whether it was part of the common property;
- are there any by-laws which may authorise the work;
- whether the timber flooring is compliant, for example, is acoustic underlay required, and if so, has compliant underlay been installed; and
- if there is damage to the common property, what is the damage and how should it be rectified?
However, section 126(2) of the Act gives the lot owner the right to seek an order from the NSW Civil & Administrative Tribunal approving minor renovations already made if the Tribunal considers that the owners corporation has unreasonably refused to consent to the minor renovations. This is referred to in the Act as a “work approval order”.
Weighing up all of the above, if the owners corporation takes action pursuant to section 111, the owner of the lot will likely respond with a counter-action under section 126(2) seeking a work approval order. However, if the owners corporation can prove there is damage to the common property (it will require expert evidence to prove this), the owners corporation may succeed in having the owner rectify the damage pursuant to section 132 of the Act.
Once you have considered all of the relevant factors, a good starting point to resolve the matter would be to apply for mediation with NSW Fair Trading. Following is a link to the application form: Applying for strata mediation.
This post appears in Strata News #640.
Tim Sara
Strata Choice
E: tsara@stratachoice.com.au
P: 1300 322 213
Shane Williamson
Williamson Lawyers Pty Ltd
E: shane@williamsonlawyers.com.au
P: 0404 045 605
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