Question: Can the owners corporation apply a new by-law selectively to repairs? What can an owner do if they believe it has been applied unfairly?
The owners corporation sent a plumber to investigate a leak in my bathroom, and the plumber reported that the waterproofing had failed. They repaired the same bathroom in 2017 after a previous leak and installed new waterproofing.
In February 2024, the owners corporation paid in full for a similar shower leak in Unit 3. They now say I must pay for all repairs except the waterproofing, which they have capped at $1,000. They claim this is due to a by-law passed in 2023.
However, they did not apply this by-law to Unit 3’s repairs. They admit the committee made an error in that case, but are now applying the by-law to me. They did not tell me about the by-law when they sent the repair quote.
I have lived in this block for 36 years, and I am 76 years old.
Answer: A by-law of this nature would likely be invalid or have no force or effect.
The original waterproofing on the floor and external walls, or any waterproofing on the floor and external walls which has been replaced or repaired by the owners corporation is common property and the responsibility of the owners corporation to repair and maintain under section 106 of the Strata Schemes Management Act 2015 (‘the Act’).
It would appear that the owners corporation is taking responsibility for the waterproofing as they are offering to pay the costs for the replacement waterproofing. However, the owners corporation is claiming that a registered by-law makes you responsible for the repair of the lot property required due to the failure of the common property.
Section 106(5) of the Act provides that an owner can recover the reasonably foreseeable loss suffered as a result of the owner corporation’s failure to repair and maintain the common property. Any subsequent damage to the lot property caused by the failure of the common property waterproofing would be a reasonably foreseeable loss.
Section 122(6) of the Act provides that the owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any repair and maintenance works.
Therefore, if the common property waterproofing failed, the owners corporation is responsible for undertaking the repair to the waterproofing, any repair to the damage caused by the failure and any damage caused by undertaking the repair.
The by-law the owners corporation is referring to will need to be reviewed, however, it is highly likely that a by-law of this nature would be invalid or have no force or effect as it:
- Is inconsistent with sections 106(5) and 122(6) of the Act (section 136(2) of the Act provides that a by-law has no force or effect to the extent it is inconsistent with the Act);
- An attempt to contract out of sections 106(5) and 122(6) of the Act (section 270 of the Act provides that a by-law cannot operate to exclude any provision of the Act, i.e. a by-law cannot be used to contract out of the Act).
This post appears in Strata News #755.
Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226
Our building has more than 40 units but some units have toilets which have concealed (in-wall) cisterns within a common wall. Who is responsible for fixing the toilet cistern when it fails? Strata or the unit. Note there are currently no special by laws that discuss Sole benefit criteria to determine a Units responsibility for repairs to items located on Common Property as in this case. The current strata committee and strata manager are all divided on the issue.
An owner has cracked tiles in a bathroom. There is no water leak and water proofing is not compromised. Who is responsible to repair the broken tiles.
Hi
We suggest you watch this video by Tyrone Shandiman about water damage insurance claims and this recording of a session on NSW strata plans with Rod Smith. Both videos cover bathroom water leaks in detail and should assist.
Hi
We suggest you watch this recent video: NSW: Interpreting Your Strata Plan – Lot property and common property boundaries
My balcony slab has spalling concrete. I have reported to the strata in end of July this year. I got a really rude and personal reply from the SC says it was me causing part of the problem because I did not look after my balcony the way other owners do. But after I found out other balconies also have the same issue, the SC back off and the strata manager had arranged an engineer inspection done in the beginning of August. Two weeks later I hv chased up with the strata manager and he told me that our SC (3 lot owners) looks after the majority of the maintenance and repair. I was told they were trying to get more quotes. As time goes by, I’ve contacted the SM twice in every 3 weeks but all I got was the same answer. Up until the beginning of Sept, i emailed the SM and I was told the SC was going to give me a plan in the coming days but 3 weeks later when I contacted the SM again, I was told I need to be more patience, the SC is certain they will look into the matter and assured me the slab has no danger to use ( with no qualified check up).My question is with no future plan or even an estimated period of time when the repaired will be carried out. What options do I have as a lot owner?
Hi Kelly
This article should assist:
NSW: It’s Raining, It’s Pouring but You Still Need to Fix It!
when an owner tiles over the existing balcony tile twice and the existing tiles waterproofing fails has the owner taking over this repair responsibility by retiling the balcony .The retiling was done without owners corp. permission or a by law done.permission, or is either party responsible for their own pair, ie owner for removing and retiling the new tiles and owners corp. responsible for the tiles and waterproofing to the old tiles.
Hi Robert
Pierrette Khoury from Khoury Lawyers Pty Ltd has responded to your comment in the article above.
I am a member of an Owners Corporation Committee for a property consisting of 14 individual villas. I have a question regarding common property, specifically the void spaces in unattached villas and town houses. Our committee recently received a request for part compensation (50%) for the replacement of an air conditioning system based on the premise that that part of the system (ducting etc.) situated in the void space above the ceiling but underneath the roof is deemed to be common property. Individual A/C units are situated adjacent to individual villas and are not on common property. If the committee approves this expenditure it will set a precedent for future requests and will inevitably lead to an increase in future levies. Can you please clarify whether or not ‘void spaces’ in this situation are the responsibility of the owners corporation?
Our sinking fund has run out of money and we need alot of repairs done to common property – the window paint has all peeled off and in some cases starting to rot, lintels are rusting, there is a very large common area window that needs to be replaced (totally rusted) structural pointing to brick work is required and alot od scaffolding. I had a remedial report commissioned that was agreed to at an AGM – it detailed about $360k of works. Then I had a capital works plan commissioned (they did not have one in 2020) both these reports identified that we needed to raise 60k per lot (taking into account contingencies) and that we also need to double the amount we are putting into our levies (going from 5k to 10k and for future expenses) Owners have agreed to levy increase but WILL not agree to Special Levy 360k – if we leave these issues they will get worse and if we use the increased levies we will not have money left for future expenses – like replacing the roof and repainting in 10 years time. What can we do (we live in a block of 6) ?
Hi Helen
Leanne Habib from Premium Strata has responded to your comment within this article: NSW: Q&A Duty to Maintain and Repair Common Property