Question: What can an owner do if the other owner in a duplex refuses repairs and blocks renovation approval requests?
I own a townhouse in a NSW duplex. Twelve months ago, I asked the other owner for permission to paint the exterior of my home using the existing colour scheme. The duplex shares a common wall. The other owner refused, claiming cracks in their townhouse meant the foundations needed inspection.
I organised an inspection. A quote was sent to the other owner for their repairs, but they said they could not afford the work.
We have never operated as an owners corporation, even though it is a legal requirement. We have by-laws and a strata plan. Can I paint my unit as long as I use the same colours?
I am concerned that the foundation issues in their townhouse will eventually affect mine. What can I do?
Answer: You can self-manage the scheme or engage a strata manager to guide you through your responsibilities and duties for managing your scheme.
Like any other strata apartment building, a duplex, also known as two lot dwellings on strata title, is required to have an owners corporation. Any strata scheme has the obligation and responsibility to maintain and repair the common property, raise levies and deal with renovations of the property.
The owners corporation is made up of the two owners in the duplex. The owners can make decisions by passing resolutions at General Meetings. With only two owners, voting on the motions presenting the resolutions may result in defeated motions if there is disagreement between the owners, unless the unit entitlements under the strata title show that one lot has more unit entitlements than the other. In these circumstances, the lot owner may demand a poll, deciding the motion on unit entitlements. Unit entitlement is a lot owner’s proportional share of ownership of the common property and may be found on the common property title search.
Painting the exterior of your property
Painting is generally considered cosmetic work under Section 109 (1) of the Strata Schemes Management Act 2015 (SSMA). An owner of a lot may carry out cosmetic work to common property in connection with the owner’s lot without the approval of the owners corporation. The lot owner must ensure that any damage to common property (if any) in connection with the cosmetic work is repaired and must comply with any further conditions noted in the by-laws. Also, the painting should not change the appearance of the exterior. If these conditions are met, you may paint your exterior wall at your own cost.
Issues with the foundation
The foundations of the building are generally considered part of the common property. The owners corporation has a statutory obligation under Section 106(1) of the SSMA to properly maintain and keep in a state of good and serviceable repair the common property, unless there is a special by-law transferring the responsibility to the lot owners. If there is no special by-law transferring the responsibility to each lot owner, the cost of repairs to the foundation under your neighbour’s property will be shared by both owners in accordance with the lot’s unit entitlement. This is because the owners corporation has the responsibility to repair common property, and you are part of the owners corporation.
Repairs of this nature are generally paid from the capital works fund (which the owners are required to contribute to via strata levies raised in accordance with unit entitlements). If the capital works fund is insufficient, the owners corporation may raise special levies to cover the costs of the repair, which again, will be raised in accordance with unit entitlements.
Further considerations
An issue that may arise is if the unit entitlements for both lots are equal. This may result in deadlocks when passing resolutions if there is disagreement between the owners. In this case, an owner may apply to the NSW Civil and Administrative Tribunal (NCAT) for an order that the owners corporation carry out the necessary repair work to the common property if it considers the owners corporation has unreasonably refused its consent.
As a two lot scheme, you can self-manage the scheme and there are tools or ideas available on the NSW Fair Trading website, or if easier, engage a strata manager who is experienced in this field to guide you through your responsibilities and duties for managing your scheme.
This post appears in Strata News #757.
Leave a Reply