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