Question: Our committee approved an owner’s garage door replacement and advised no by-law was needed. Is that advice correct?
Our committee approved an owner to replace their lot’s common property garage door and install an automated opener, all at the owner’s own cost.
The committee’s conditional approval stated: “Approval was granted conditional on the new garage door closely matching others so the external appearance would not be materially altered and the garage door remaining common property for which the owners corporation is responsible.”
The committee also advised that “a by-law is not required when a change to common property is not a major renovation (i.e., structural alteration, change to external appearance, work involving waterproofing, work requiring approval under other legislation) or when the lot owner is not indemnifying the owners corporation of responsibility for maintenance.”
Does the owner need a registered by-law that ensures the lot takes responsibility for future maintenance?
Answer: Yes, a registered by-law is required, and the committee’s approval process does not comply with the Act.
Short answer: Yes, and the process the committee has described does not comply with the Act.
Whether a garage door is common property or lot property depends on the strata plan for the scheme. In this case, the questioner has confirmed the garage door is common property. Replacing it and adding an automated opener that didn’t previously exist is not routine maintenance. It is an alteration to, and improvement of, common property. This engages section 108 of the Strata Schemes Management Act 2015 (NSW) (“the Act”), which sets out the procedure for authorising changes to common property.
The correct process under section 108
Section 108(1) provides that an owners corporation or an owner may “add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.”
Section 108(2) requires that “a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.”
A special resolution can only be passed at a general meeting of the owners corporation, not by the strata committee. Committee approval alone does not satisfy the requirements of section 108.
Maintenance responsibility and the by-law requirement
This is where the committee’s advice is most problematic. Sections 108(3) to (5) set out a clear framework:
Section 108(3) requires that a special resolution authorising an owner to carry out work on common property “must specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.”
Section 108(4) provides that if the resolution does not specify who has ongoing maintenance responsibility, the owners corporation is responsible by default.
Section 108(5) provides that if the resolution does allocate ongoing maintenance to the owner, that allocation “has no effect” unless the owners corporation obtains the owner’s written consent to a by-law providing for maintenance by the owner, and the owners corporation makes that by-law.
Put simply, if the owner is to be responsible for maintaining the new garage door and automated opener going forward, a by-law is not optional. It is a statutory precondition. Without it, the maintenance obligation falls back to the owners corporation under section 108(4), meaning all owners share the cost of maintaining an improvement that was funded by and primarily benefits one lot.
The committee’s “test” is not found in the Act
The committee advised that a by-law is not required where work is “not a major renovation (i.e., structural alteration, change to external appearance, work involving waterproofing, work requiring approval under other legislation).” This test does not appear anywhere in the Act. It appears to conflate concepts from section 109 and section 110 — which deal with cosmetic work and minor renovations carried out by owners within their lots — with the separate regime in section 108, which governs changes to common property. These are different provisions with different approval thresholds and procedures.
Replacing a garage door does not fall within the definition of cosmetic work under section 109, which is limited to things like installing picture hooks, painting internal walls, laying carpet, and installing built-in wardrobes. Nor does it fall within the minor renovations prescribed under section 110 and clause 28 of the Strata Schemes Management Regulation 2016, which covers things like kitchen renovations, hard flooring, and air conditioning installation.
Section 111 — the overarching restriction
Section 111 of the Act reinforces the position. It provides that an owner must not carry out work on common property unless authorised under Part 6 of the Act, under a by-law, or by a special resolution of the owners corporation. Committee-level approval does not satisfy any of these requirements.
What should happen now
The work has already been carried out, which is not ideal, but the situation can be regularised. The owners corporation should consider placing a motion before a general meeting to pass a special resolution under section 108 retrospectively authorising the works, along with a by-law that allocates ongoing maintenance of the replacement garage door and automated opener to the lot owner. The by-law should be drafted by a solicitor experienced in strata law to ensure it properly addresses maintenance obligations, is registrable, and protects the interests of all owners.
Owners and committees should be cautious about relying on informal interpretations of when a by-law is or isn’t required. The Act sets out a clear framework, and following it protects both the individual owner and the owners corporation.
This post appears in Strata News #791.
Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960
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