NSW: Q&A Duty to Maintain and Repair Common Property

This article is about the owners corporation’s obligation to repair and maintain common property.

Table of Contents:

• QUESTION: I’m on the committee for a small unit block in Sydney. We have major repairs pending. They have been voted down at EGMs more than once. How do I persuade my fellow owners to proceed with repairs?


• QUESTION: Are intruder/burglar alarms considered similarly to smoke alarms in terms of responsibility for repairs and maintenance?


• QUESTION: The ceiling of a garage is sagging. Is the repair the responsibility of the lot owner or the owners corporation?


• QUESTION: Our strata plan has had persistent water leaks for years. The owners corporation rejected a consultant’s proposal for remediation of the building. Is the owners corporation responsible for repairing the resultant damage in lots to walls and window coverings?


• QUESTION: After experiencing multiple water ingress issues since 2018, my unit is deteriorating with dampness and mould. We need to raise a special levy before work can begin. How long should this take?


• QUESTION: A window on a boundary wall of my villa was accidentally smashed by a golf ball. We back onto a golf course. Is the repair the responsibility of the lot owner or owners corporation? The cost to replace the glass was less than the insurance excess.


• QUESTION: The waterproofing membrane in my shower needs replacing. The owners corporation refuses to admit responsibility and will not carry out any repair work to rectify the ongoing damage. How do we proceed?


• QUESTION: If an owner’s balcony doors/windows need replacing, is this the responsibility of the owners corporation? Must we wait until the owners corporation decides to replace all of the balcony doors/windows in the building?


• QUESTION: In our small strata consisting of three townhouses, each lot has a verge. Who is responsible for mowing the verge?


• QUESTION: Our building was built pre 1974. The Strata Committee wants to replace all windows and balcony sliding doors but we are unable to tell from the strata plan if the balconies are common property.


• QUESTION: Our whole complex is being re-roofed. This will involve the removal and re-installation of solar panels on nearly half of the units’ roofs. Who is responsible for their removal and re-installation? The owner or the owners corporation?


• QUESTION: Water ingress due to patio gardens has been found in a few lots. If one owner is unable to contribute to the cost of the repair, can they pay the amount off with increased levies?


• QUESTION: If a problem like rising damp causes damage to paintwork on internal walls inside the lot, is the Owners Corporation responsible to repaint?


• QUESTION: How do we comply with NSW Legislation to maintain the building when either the weather is too bad to carry out the repair or we can’t get contractors?


• QUESTION: My villa flooded 3 months ago. Due to consistent rain, the villa has continued to flood. Our strata manager will not reply. If they can’t organise a contractor, can I organise someone myself?


• QUESTION: The front balcony timber steps and rails are in urgent need of repair. For this to be done quickly, I’m happy to organise and pay for repairs, but the OC is insisting a bylaw is created for exclusive use of the area. Is a bylaw really required?


• QUESTION: If the OC has an arrangement with a lot owner to pass ongoing responsibility for common property to them, is this arrangement passed onto subsequent owners?


• QUESTION: I own a top floor unit. My ceiling has been damaged by water ingress due to a leaking roof. Who is responsible for the cost of repairing the ceiling?


• QUESTION: Our backyard gets badly flooded whenever it rains. The water comes from a neighbouring property, not from within our complex. We need drainage along the fence line and maybe a pit somewhere else in the yard. Is this my cost or would the owners corporation be responsible?


• QUESTION: What do you do if your building is flooding during a storm event? What can you do to mitigate against storm and flood damage in strata buildings?


• QUESTION: What happens if the owners corporation does not carry out necessary maintenance due to lack of funds?


• QUESTION: Our three lot strata scheme requires repairs. There is no money in the sinking fund and other owners do not want to pay. Is there any law preventing us as lot owners from personally paying for the repairs/maintenance to our own townhouse?


• QUESTION: Who bears the costs of correcting unapproved modifications to common property?


• QUESTION: Are there any legislative requirements to steam clean/paint common area garbage rooms?


• QUESTION: A water feature has not been maintained and is now causing water to seep into the basement. A group of lot owners would like to remove the feature. How can we ensure it is repaired and maintained?


• QUESTION: We seem to be the only apartment in our 70 lot building without TV reception in the loungeroom. Is it strata’s responsibility to fix this?


• QUESTION: Is it the responsibility of the owners corporation to service and maintain the grease trap?


• QUESTION: We own a villa in a two lot strata scheme that is in need of repainting. The owners of the other lot do not want to pay for the property to be repainted.


• QUESTION: Can the owners corporation park a common property maintenance issue forever, quoting lack of funds?


• QUESTION: Who is responsible for a broken window in a strata unit?


• QUESTION: In our 20 year old building, the original water membrane in many unit’s bathrooms are failing. Our Strata Manager insists it is the responsibility of the owners corporation. Is this correct?


• QUESTION: Is the owners corporation required to carry out necessary maintenance to common property within a legislated timeframe? In this case, for mould.


• QUESTION: We’ve found out the marble tile installed in our apartment was unapproved by the owners corporation and they are asking us to pull it up. Isn’t the tile part of the common property? Shouldn’t the OC replace the flooring at their cost?


• QUESTION: I had an issue with mould in my bathroom. As the mould was due to a leak in the common property wall, should strata pay for the repairs?


• QUESTION: My garage is in immediate need of repair to the point of causing damage to my car. I have requested maintenance but nothing is done. What can I do?


• QUESTION: Does neglected maintenance within a lot become the owner’s responsibility after a certain period?


• QUESTION: Why are we levied for common property maintenance when the common property is of no benefit to us?


• QUESTION: The hallway connecting several units and the lift has had a very foul odour for quite some time. What can I do to get strata to investigate the cause and rectify the problem?


• QUESTION: Who is responsible for repairing a pipe that passes through common property, but only services one unit?


• QUESTION: In NSW, do owners corporations need to hold a meeting and pass a resolution to replace something that existed on the common property and was removed to carry out repairs?


• QUESTION: Our owners corporation is up for $200,000 to repair concrete spalling in one unit. Larger units have to pay more. How is this fair? Can we limit our liability?


• QUESTION: Our sinking fund has run out of money and we need a lot of repairs and maintenance done to common property.


• QUESTION: My balcony doors & shutters were damaged in strong winds 7 months ago, but nothing has been done. Is this considered acceptable to wait for an Insurance company before any repairs are carried out when it could be dangerous?


• QUESTION: We had a leak in our ceiling and now mould is growing on the water damaged parts. We reported it to our strata manager months ago, but nothing has been done to fix the problem. What are my options as an owner?


• QUESTION: Due to recent storm events there was water ingress from common areas into my apartment, damaging floorboards. What is the process to fix the damage?


• QUESTION: Can the owners corporation fix my neighbour’s leaking verandah?


• QUESTION: Water has been leaking from our front yard into the car park below for a few years without resolution. Must I use the strata’s expensive contractor for the basement waterproofing? How do I get the committee to act?


• QUESTION: What steps do we take to organise a leaky roof repair? What if some owners refuse to pay?


• QUESTION: Why am I required to fund my neighbour’s leaky roof repair?


• QUESTION: Who is responsible for contractor’s added costs when site access is deliberately limited?


• QUESTION: In our strata scheme, there are 25 unit walk ups and 12 units in the tower. The tower has a lift, only servicing lot owners who live in that building. Do all lot owners have to pay for maintenance of the lift or is it solely the responsibility of those units that have use of it?


• QUESTION: A resident has repeatedly requested the committee repair a known trip hazard that hasn’t been fixed for years. What are the insurance implications around known hazards that the committee will not address?


• QUESTION: Our committee is aware of safety hazards and incidences have occurred but they refuse to spend money to fix these items. What can be done when the committee won’t spend on necessary maintenance?


• QUESTION: In our commercial unit, there have been leaks for many years and we can’t seem to get them fixed. What action can I take to get repairs carried out as the condition of the building is ruining our office and some of our stock?


• QUESTION: Is it allowable/acceptable to get in touch directly with strata manager for unit repairs to common property, rather than go through the executive committee?


• QUESTION: The garden directly outside my apartment never gets maintained as I’m the only one affected by it. How can I ensure garden maintenance is scheduled and regular?


• QUESTION: Our Owners Corporation collects levies but there is a failure to maintain and repair common property. What can I do to get things back on track?


• QUESTION: Should the Strata Manager Advise the Owners Corporation to Upkeep and Repair Common Property?


• QUESTION: Our apartment is having rising damp repairs carried out. Are we required to contribute to the cost to repair and maintain common property?


• QUESTION: Some common walls in our building have cracks. What procedure should our Executive Committee follow to repair these common wall cracks?


• QUESTION: A lot owner’s internal walls have non-structural common wall cracks from slight building settlement. Where does the responsibility of owners corporation fall to repair the walls? Are they responsible at all?


• QUESTION: Is it possible to access a unit if the owner has not granted permission but the tenant has? This is for the sake of a dye test and roofing repairs.


• QUESTION: Our strata is trying to charge us for the repair of the balcony. Is this part of the common property? We feel bullied and are not sure how to proceed.


• QUESTION: Who pays for the repair of my balcony and what are my rights regarding the design? Should the unsafe balcony be replaced with something similar?

Question: I’m on the committee for a small unit block in Sydney. We have major repairs pending. They have been voted down at EGMs more than once. How do I persuade my fellow owners to proceed with repairs

Answer: The obligation to repair common property is positive, unambiguous and immediate.

The New South Wales legislation is unambiguously strong. An owner corporation must repair and maintain the common property and that’s why strata managers bang on about repairing and maintaining the common property all the time. The obligation is so strong, you must repair and maintain common property even if you didn’t realise there was a problem. There’s no excuse like “oh, we’re thinking about it”, or “we don’t have the budget”, or “we got three quotes”, or “we’re going to do it next year”. It’s positive, unambiguous and immediate. So, how to convince owners?

Talk to a few professionals and get some advice. Trying to convince them is a really good idea, but in the end it’s an application to the consumer affairs tribunal. There’s one in each state. They more or less do the same thing in each state and it is relatively easy for an owner to go to NCAT seeking orders.

Paul Morton and Jenine Garcia Lannock Strata Finance E: strata@lannock.com.au P: 1300 851 585

This post appears in the April 2024 edition of The NSW Strata Magazine.

Question: Are intruder/burglar alarms considered similarly to smoke alarms in terms of responsibility for repairs and maintenance?

Answer: Who is responsible for burglar alarms? It depends on the time of installation, who installed them, where they are situated etc.

Smoke alarms, whether or not connected to the fire board in the building, are considered fire safety equipment and are subject to the Environmental Planning and Assessment Act 1979 and regulations (among other legislation).

Who is responsible for burglar alarms depends on the time of installation, who installed them, where they are situated etc.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #681.

Question: The ceiling of a garage is sagging. Is the repair the responsibility of the lot owner or the owners corporation?

In Matthew Jenkins’ article in July 2023, ‘NSW: Q&A Unit owner requirement to maintain lot property‘, he mentioned that “ceilings” are common property.

Would it be possible for Mr Jenkins to elaborate on the comment? The ceiling of a garage is sagging, and we are not sure if it is the lot owner’s or the owners corporation’s responsibility.

Answer: The airspace of the lot ends at the under surface of the ceiling, meaning that the ceiling will be common property.

A lot owner usually only owns the airspace of a lot, and the strata plan will set out the boundaries of a lot.

If the ceiling was there at the time of registration of the strata plan, the ceiling is likely common property due to section 6 of the Strata Schemes Development Act 2015.

This section provides how the boundaries of a lot are determined. In particular, section 6(1)(a)(ii) provides that the horizontal boundaries of a lot in which a floor or ceiling joins a vertical boundary of a lot will be the upper surface of a floor and the under surface of a ceiling.

6 Boundaries of lot

1. For the purposes of this Act, the boundaries of a lot shown on a floor plan are—
   
   1. except as provided by paragraph (b)—
      
      1. for a vertical boundary in which the base of a wall corresponds substantially with a base line—the inner surface of the wall, and
      
      
      2. for a horizontal boundary in which a floor or ceiling joins a vertical boundary of the lot—the upper surface of the floor and the under surface of the ceiling, or
   
   
2. the boundaries described on the floor plan relating to the lot, in the way prescribed by the regulations, by reference to a wall, floor or ceiling in a building to which the plan relates or to common infrastructure within the building.

In this section—

base line—see paragraph (a) of the definition of floor plan in section 4 (1).

The airspace of the lot ends at the under surface of the ceiling, meaning that the ceiling will be common property.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #679.

Question: Our strata plan has had persistent water leaks for years. The owners corporation rejected a consultant’s proposal for remediation of the building. Is the owners corporation responsible for repairing the resultant damage in lots to walls and window coverings?

Our strata plan has had significant water leaks for many years.

Last year, a consultant’s report and scope of work to remediate the entire building was rejected by the owners corporation at a general meeting.

Many owners continue to have water leaking into their units around the windows, through the ceiling, etc.

The water leaks have been going on for many years. There have been many quick fix-ups and patches, but nothing substantial has been done to stop the water from entering the building.

The owners corporation has failed to maintain the property in a good, safe state of repair. Our strata management company recently terminated their agreement because they felt our owners corporation was in breach of strata legislation.

Would the owners corporation be responsible for repairing damaged walls, window coverings, etc, which is a direct result of not attending to appropriate building maintenance, even if the owners have contents insurance?

Answer: If the source of the leaks causing the damage to walls is arising from locations involving common property, then it is likely owners corporation’s responsibility.

The owners corporation has the duty to maintain and repair common property. Section 106 of the Strata Schemes Management Act 2015 in this regard relevantly provides:

1. An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.


2. An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.


3. This section does not apply to a particular item of property if the owners corporation determines by special resolution that–
   
   1. it is inappropriate to maintain, renew, replace or repair the property, and
   
   
   2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

I imagine the report from the consultant would have identified those aspects that are common property. If the source of the leaks causing the damage to walls is arising from locations involving common property, it is likely a responsibility of the owners corporation.

From your email, the water leaks are a major issue for the building. As such, it does not appear to me that section 106(3) would apply in this instance.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the December 2023 edition of The NSW Strata Magazine.

Question: After experiencing multiple water ingress issues since 2018, my unit is deteriorating with dampness and mould. We need to raise a special levy before work can begin. How long should this take?

I have had two water ingress issues since 2018. The property has deteriorated, along with my health, due to the resulting mould and dampness. We need to raise a special levy before we begin repairs.

Do we need to wait for the vote for the special levy at the AGM, or can owners be emailed and a vote taken immediately? Once agreed, how long do owners have to pay the special levy? Can the funds come from the cash reserves and be topped by the special levy once everyone has paid?

Answer: You should not be exposed to health issues due to water ingress, mould and dampness.

Water ingress into your unit resulting in mould and dampness is an issue that should not continue for five or so years. Someone will be responsible for rectifying the water ingress. If the cause of the water ingress arises due to an issue in the common property, the owners corporation is most likely responsible. Pursuant to section 106 of the Strata Schemes Management Act 2015, the owners corporation has a strict duty to maintain and keep the common property in a state of good and serviceable repair.

For the purposes of answering your questions, I assume the water ingress is occurring due to the owners corporation failing to maintain or repair the common property. I assume the owners corporation is responsible. You should, however, ensure the cause of the water ingress has been properly identified and considered in the context of the registered by-laws and any unauthorised work.

The owners corporation should have a capital works fund which ordinarily should cover the cost to maintain and repair the common property. If a special levy needs to be raised to carry out the repairs, delaying the special levy is not an excuse for delaying the rectification work required to resolve the water ingress.

A special levy needs to be raised at a general meeting. You do not need to wait for the Annual General Meeting. The special levy may be raised at an Extraordinary General Meeting. Section 19 of the Strata Schemes Management Act 2015 states that “The secretary or a strata committee of an owners corporation may convene a general meeting (that is not an annual general meeting) of the owners corporation at any time.”

In relation to when a special levy is to be paid, this is to be decided at the general meeting. After the general meeting, levy notices need to be issued to all the owners, and the owners must be given at least 30 days’ notice before the levy is due and payable. This is a requirement of section 83 of the Strata Schemes Management Act 2015.

Regarding your question about whether payment may be made from cash reserves, the owners corporation has two “reserves”, referred to as “funds”. There is an administrative fund and a capital works fund. If sufficient amounts are available in either of these funds, the owners corporation should use these funds to resolve the water ingress and then replenish the funds soon afterwards. If it does not have sufficient funds, it should raise the funds required. Section 81 of the Strata Schemes Management Act 2015 provides that: “If the owners corporation is subsequently faced with other expenses it cannot at once meet from either fund, it must levy on each owner of a lot in the strata scheme a contribution to the administrative fund or capital works fund, determined at a general meeting of the owners corporation, in order to meet the expenses.”

As a general answer to your questions, you should not be exposed to health issues due to water ingress, mould and dampness. There are numerous provisions in the Strata Schemes Management Act 2015 that you may utilise to resolve the issue. I have referenced a few of the sections above to assist you in discussing the matter with your strata manager or the strata committee. I have not covered all of the legal avenues available to you. There are other sections in the Strata Schemes Management Act 2015 you can use if the circumstances require. You should obtain legal advice from a legal practitioner who specialises in strata law, as these issues can be complex, and disputes do arise.

Shane Williamson Williamson Lawyers Pty Ltd E: shane@williamsonlawyers.com.au P: 0404 045 605

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: A window on a boundary wall of my villa was accidentally smashed by a golf ball. We back onto a golf course. Is the repair the responsibility of the lot owner or owners corporation? The cost to replace the glass was less than the insurance excess.

Answer: Usually, windows/glass on the boundary of your lot will be categorised as common property .

Usually, windows/glass on the boundary of your lot will be categorised as common property, but you will need to confirm any variations to this position from any notations on the strata plan and/or by-laws applicable to the scheme. Therefore, the repair is the responsibility of the owners corporation and its insurance as you were not responsible for causing the damage.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #635.

Question: The waterproofing membrane in my shower needs replacing. The owners corporation refuses to admit responsibility and will not carry out any repair work to rectify the ongoing damage. How do we proceed?

Answer: You should remind the strata committee and the owners corporation of their duties failing which you may seek mediation and Orders from NCAT.

On the basis that your bathroom is original (ie has not been altered or renovated since the inception of the scheme by you or any previous owners) the owners corporation is responsible to repair and maintain the original common property fabric of the building ie the waterproofing membrane and floor tiles (and some of the wall tiles where applicable) subject to any notations on the strata plan and any relevant by-laws which apply to the scheme.

The statutory responsibility of the owners corporation to repair and maintain the common property is strict pursuant to Section 106 of the Act.  Section 122 relates to the owners corporation’s powers for access.

You should remind the strata committee and the owners corporation of their duties failing which you may seek mediation and Orders from NCAT, and, in some cases, compensation for loss and damage for the owners corporation’s breach of its statutory duty may be awarded noting that such compensation must be sought within 2 years of you becoming aware of the loss:

Section 106 Duty of owners corporation to maintain and repair property

5. An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #633.

Question: If an owner’s balcony doors/windows need replacing, is this the responsibility of the owners corporation? Must we wait until the owners corporation decides to replace all of the balcony doors/windows in the building?

Answer: Depending on the age of your building, the registered by-laws and strata plan applicable to the scheme, the balcony doors/windows will be either lot property or common property.

Depending on the age of your building, the registered by-laws and strata plan applicable to the scheme, the balcony doors/windows will be either private lot property or common property. Older buildings commonly have the balcony doors as the responsibility of the individual owner whereas newer buildings have such doors/windows as the responsibility of the owners corporation.

If they are common property, the balcony doors/windows are the responsibility of the owners corporation and the owners corporation must repair, maintain, and, if required, replace the balcony doors/windows. Therefore in theory, you should not have to wait for their replacement if they have fallen into disrepair. The owners corporation has a strict duty to repair and maintain the common property, so if the balcony doors/windows in your scheme are common property and require repair or replacement, that would be the responsibility and cost of the owners corporation.

Alternatively, if you do not wish to wait for the owners corporation to replace the doors/windows and you are happy to pay for the replacement yourself, you will need to obtain approval from the owners corporation by way of a by-law and ensure that the replacement balcony doors/windows are strictly in keeping with the appearance, look and feel of the building.

If they are private property, all repairs, maintenance, and replacement will be your responsibility. You will still need to ensure that the replacement doors match the appearance etc of the building.

Your strata manager will be able to advise you whether your balcony doors/windows are common property or your responsibility and what next steps should be.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the February 2023 edition of The NSW Strata Magazine.

Question: In our small strata consisting of three townhouses, each lot has a verge. Who is responsible for mowing the verge?

We are a small strata of three townhouses. We all have a council verge adjacent to the footpath. The verge is not connected to nor does it form any part of our common lot garden.

Our treasurer insists Strata has to pay for the mowing of the entire council verge. Are Strata under any legal obligation to mow and pay for the council verge under SSMA or should it be up to individual lot owners to mow? 

Answer: Call your local council and seek advice.

Nature Strip and Verge Mowing Policies vary from local council to local council so to gain clarity in relation to the Owners Corporation’s and neighbouring properties’ responsibilities, we recommend you call your local council and seek advice.

Your Treasurer will likely know the importance of public liability and other insurance when undertaking the verge/nature strip works.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #621.

Question: Our building was built pre 1974. The Strata Committee wants to replace all windows and balcony sliding doors but we are unable to tell from the strata plan if the balconies are common property.

Our 50 year old block of 12 lots was registered pre 1974. The Strata Committee wants to replace all windows and balcony sliding doors in the building. All windows face Common property. All sliding doors lead to individual balconies.

Do we need 100% of OC agreement to do this necessary remedial work? We are unable to tell from the strata plan if the balconies are common property, though the OC recently replaced all the balustrades.

Answer: It is hard to say from your description as to whether the windows and doors are lot or common property.

It is hard to say from your description as to whether the windows and doors are lot or common property.

Generally, if the centre-line rule apples and assuming that the strata plan does not show otherwise:

• Windows and doors on the boundaries of the lots will be common property.


• Any windows, doors and walls separating the lot with another part of the same lot are lot property.

The owners corporations primary maintenance and repair obligations do not require, or permit, the owners corporation to replace those windows, doors and walls that are lot property. If the owners corporation is proposing to undertake works to the lot property windows, doors or walls, they should consider entering into a short agreement with each of the willing owners and should consider obtaining legal advice.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au P: 02 9929 0226

This post appears in Strata News #619.

Question: Our whole complex is being re-roofed. This will involve the removal and re-installation of solar panels on nearly half of the units’ roofs. Who is responsible for their removal and re-installation? The owner or the owners corporation?

Answer: The duty of the Owners Corporation may be to remove and re-install the solar panels if they are considered common property.

The question as to who is responsible to remove and re-install solar panels depends on a number of factors including whether or not the relevant owners obtained by-law approval to install their solar panels. Often, a by-law will require the owner to remove and re-install their installation to enable the Owners Corporation to fulfil their statutory repair and maintenance responsibilities.

While the installations are on common property, some case law suggests that if such installations exclusively service one lot, they remain lot property (and therefore the lot owner’s responsibility) irrespective of their location.

It is also unclear whether the individual owners or owners corporation installed the subject sustainability infrastructure. If the installation of the solar panels was carried out by the owners corporation on the common property and service more than one lot, they may be construed as common property for which the Owners Corporation is responsible to remove and reinstall.

We recommend you seek specialised strata legal advice because of the exposure to the Owners Corporation in case of damage to the solar panels the installation of which may or may not be regulated by the by-laws or Owners Corporation’s works.

So, yes, the duty of the Owners Corporation may be to remove and re-install the solar panels if they are considered common property for the purposes of Section 106 Duty of owners corporation to maintain and repair property (subject to any by-laws/special resolutions of the Owners Corporation).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #615.

Question: Water ingress due to patio gardens has been found in a few lots. If one owner is unable to contribute to the cost of the repair, can they pay the amount off with increased levies?

Water ingress was found to be caused by a unit’s patio garden. Strata paid for the garden bed to be removed but the unit owner paid for retiling of the patio.

Water ingress due to the patio garden has been discovered in another unit close by. We assume the garden here needs to be removed as well, but this owner cannot afford to pay for tiling. 

Strata could pay for the retiling, however, is this fair to the adjoining unit who paid for their own retiling?

How can we make this equitable? Can the unit owner arrange to pay the cost of tiling through an increase in her levy fees for a year?

Answer: levies cannot be ialtered and must be struck in accordance with individual owners’ unit entitlements.

Generally speaking, levies cannot be increased/altered and must be struck in accordance with individual owners’ unit entitlements.

We would recommend determining whether the source of the water ingress is properly attributable to a lot or common property defect/failure.

It may be that the issue is the responsibility of the Owners Corporation in which case the previous owner could be refunded and the current tiling could also be paid for by the Owners Corporation. In most cases, subject to the by-laws applicable to your scheme and any notations on the strata plan, tiling (being a floor) is usually common property.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #610.

Question: If a problem like rising damp causes damage to paintwork on internal walls inside the lot, is the Owners Corporation responsible to repaint?

Most of the lots on our complex have been affected by rising dampness. It has been advised the paintwork inside the affected lots is the responsibility of the lot owner. If a problem like rising damp causes damage to paintwork, is the Owners Corporation responsible to repaint?

If the affected area is inside the lot, i.e. on the internal walls, is it the Owners Corporation’s responsibility for the damage?

Answer: This will depend on the source of the rising dampness. If the source is from a common property related area, it is potentially the Owners Corporation’s responsibility. It is best the source is investigated and a contractor attend to inspect where it is coming from.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the October 2022 edition of The NSW Strata Magazine.

Question: How do we comply with NSW Legislation to maintain the building when either the weather is too bad to carry out the repair or we can’t get contractors?

A recent article on the LookUpStrata site by JS Mueller & Co states:

“… an owners corporation cannot delay any repairs that need to be carried out to fix defects in the common property that are causing water to leak into a lot. Even if it is impossible to find contractors who are available to repair those defects, that does not provide an owners corporation with a lawful excuse for delaying any necessary repairs to common property.”

We have been advised of a leak into a ceiling of a unit, however, we cannot get a contractor to attend ‘immediately’ due to current severe weather conditions so as to inspect and carry out any replacement of roof tiles that may have been damaged and causing water to penetrate. The roof was inspected about 12 months ago and any damaged tiles were replace then, ridge capping re-pointed and gutters checked for debris.

Our Strata Manager has attempted to locate a roofing contractor but there is a current backlog and attendance is not practicable ‘immediately’. Does this mean that the Committee (all in their 70s) have to climb onto a three storey building’s roof to replace tiles themselves?

We have the funds available to effect any repairs needed but cannot get a contractor ‘immediately’. If bad weather and lack of contractor availability is not a valid excuse, then the law, as you explain, it not practical.

I’m sure ours is not the only Strata Committee in this situation.

Answer: You should contact your local state emergency service.

In New South Wales, new Legislation called the Design and Building Practitioners Act 2020 commenced in July 2021.

It sounds like your question is more about a contractor availability issue. This is not just being experienced in the strata management industry, it’s being experienced generally. The whole construction industry is really struggling at the moment with trade and material availability.

In this situation, you should contact your local state emergency service. They could potentially act on your behalf to come out and address the emergency situation. However, Sedgwick would be happy to assist any owners corporation to access contractors, trades and the like through our network of suppliers.

Bruce McKenzie and James McIntosh Sedgwick E: bruce.mckenzie@au.sedgwick.com P: 1300 735 720

This post appears in the October 2022 edition of The NSW Strata Magazine.

Question: My villa flooded 3 months ago. Due to consistent rain, the villa has continued to flood. Our strata manager will not reply. If they can’t organise a contractor, can I organise someone myself?

My villa was recently flooded.

I am still waiting for very urgent repairs to be carried out. Due to NSW receiving more and more rain, the villa continues to be flooded.

I contacted my Strata Manager when the flooding began 3 months ago and have contacted them a dozen times since then. I’ve received no response. I have sent photos in an attempt to highlight the urgency of the issue.

Should the strata manager get back to me with some sort of timeframe for repair? If they are unable to have their contractor come out, am I allowed to ask another contractor to attend to the issue?

I am concerned about what will happen if there is more rain as the property has been flooded for months already.

Answer: The owners corporation is deemed to have failed to act on its duty to repair and maintain the common property if after two months it has not made a decision or taken action.

The strata manager is your point of contact, however, they do not necessarily have the power to make decisions even in an emergency as they are generally limited to a set dollar amount for decision making. The strata manager can make recommendations and send them to the strata committee who generally will, unless they have been restricted in their decision making at the last general meeting, have the authority to make the decision to engage a contractor.

Having said that, under the Strata Schemes Management Act 2015, the owners corporation is deemed to have failed to act on its duty to repair and maintain the common property if after two months it has not made a decision or taken action. As it is now over the two month mark you can take the matter to NCAT after first attempting mediation to obtain repair orders. I strongly suggest you seek legal advice before doing so.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in Strata News #595.

Question: The front balcony timber steps and rails are in urgent need of repair. For this to be done quickly, I’m happy to organise and pay for repairs, but the OC is insisting a bylaw is created for exclusive use of the area. Is a bylaw really required?

The front balcony timber steps and rails are in urgent need of repair. I know that this is understood to be common property. I have offered to have this work done at my own cost and not seek reimbursement from the owners corporation.

A builder has given me a quote and a scope of work for the repairs. The builder has classified the work as repairs, which is old for new. The strata management company is saying that I am wanting exclusive rights over the common property (which I am not) and must have a special by-law registered and added to the existing by-laws.

All I am wanting is the urgent repairs carried out as soon as possible, all at my own cost. Is a by-law really required?  

Answer: If you wish to pay to repair the common property, I agree that a by-law is not required, however, there may be another way.

You appear to be on the right track.

Although your question relates to the payment of the repair work I will comment briefly on the owners corporation’s obligations in relation to the repair work as it would appear that the owners corporation is not functioning as it should under the Strata Schemes Management Act 2015.

It is good that you have identified the timber steps and rails as common property. This is an important preliminary step and you should double check you are correct in relation to this. You should review the registered strata plan and the registered by-laws and clarify if the stairs are the original stairs which were in place when the strata plan was registered.

You mention that there is an urgent need to repair the stairs. If there is a safety risk, you should ensure that the strata committee and the strata manager are aware of this risk by giving notice in writing, explaining the nature of the risk and including photographs to substantiate your concerns.

The owners corporation has a strict obligation to maintain the common property pursuant to section 106 of the Strata Schemes Management Act 2015. From your email, it appears the strata manager is aware that the stairs are in need of repair. If this is the case, the owners corporation is likely in breach of section 106.

Assuming it is clear that repair work is required and you have correspondence to prove the owners corporation is not attending to the repairs, you appear to have a strong case to compel the owners corporation to undertake the necessary repair work. You may compel the owners corporation to undertake the work by making an application in the NSW Civil and Administrative Tribunal. However, before you make your application in the Tribunal, you must attempt mediation through NSW Fair Trading. There is a link on the NSW Fair Trading website to initiate a mediation.

If the cost to repair the stairs is substantial, and an agreement cannot be reached at mediation, instead of paying for the work yourself it may be more cost effective for you to make an application in the Tribunal.

Returning to your original question, should you still wish to pay to repair the common property, I agree that a by-law is not required. As you have indicated, you do not seek to undertake the work. You want the owners corporation to undertake the work pursuant to its statutory obligations and you are simply offering to pay for the work. The contract for the work will be between the owners corporation and the builder. The builder may render its invoices to the owners corporation for you to reimburse the owners corporation, or the builder may render the invoice directly to you, in which case you will pay the builder directly. Such an agreement is able to be approved by the owners corporation without a by-law being required and without you acquiring exclusive use rights over the stairs.

If you agree to pay for the work, you should take care to properly understand the terms of the contract and the scope of work to be sure you are aware of how much the total cost of the work could amount to. Even a fixed price contract is susceptible to price increases and you do not want to be caught out having to pay substantially more than what you originally contemplated.

You should obtain advice from a solicitor prior to making an application in the Tribunal, signing a contract or entering into an agreement to pay for the work.

Shane Williamson Williamson Lawyers Pty Ltd E: shane@williamsonlawyers.com.au P: 0404 045 605

This post appears in the August 2022 edition of The NSW Strata Magazine.

Question: If the OC has an arrangement with a lot owner to pass ongoing responsibility for common property to them, is this arrangement passed onto subsequent owners?

3 years ago, a lot had a burst pipe requiring the kitchen to be replaced. The insurer has approved $45,000 for repairs, however, the lot owner is elderly and doesn’t want the disruption associated with further work.

The insurer has offered the owners corporation a cash settlement. The OC wants to accept as it is hampering insurance until the claim is settled. The OC is having an agreement drawn up with the lot owner to ensure there is no further claim/comeback to the OC. Will this be sufficient to protect us from a new/subsequent lot owner?

Answer: It is difficult to bind successors in title in the absence of a by-law.

It is difficult to bind successors in title in the absence of a by-law, however, the Owners Corporation may pass a special resolution to determine that it is inappropriate to repair/maintain/renew/replace an item of common property provided that that determination will not affect the safety of any building, structure of any common property or detract from the appearance of any property.

If the proviso is satisfied, the Owners Corporation will not be liable for ongoing responsibility of the particular item of common property.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the July 2022 edition of The NSW Strata Magazine.

Question: I own a top floor unit. My ceiling has been damaged by water ingress due to a leaking roof. Who is responsible for the cost of repairing the ceiling?

Answer: The usual position is the Owners Corporation responsible for maintaining and repairing the common property.

The roof is common property. However, at times an owner may have an exclusive special by-law in place which may include the roof. I am unaware if you have this. I would review the by-laws first to ensure there are no special by-laws in place.

Otherwise, the usual position is the Owners Corporation responsible for maintaining and repairing the common property. That duty is set out in section 106 of the Strata Schemes Management Act 2015“An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.”

However, the above is qualified if the Owners Corporation has determined by special resolution that:

1. it is inappropriate to maintain, renew, replace or repair the property, and


2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

If this has happened, section 106 will not apply. Further in the event an Owners Corporation has taken action against a builder or developer, it may defer complying with its duty to maintain in a good and serviceable repair the common property until the completion of the action against the other party if the failure to carry out the repair does not affect the safety of the building, structure or common property in the strata scheme.

I would recommend at first instance notifying your strata manager who will then likely arrange an inspection with a consultant to determine what steps will be required to remediate the leak.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the June 2022 edition of The NSW Strata Magazine.

Question: Our backyard gets badly flooded whenever it rains. The water comes from a neighbouring property, not from within our complex. We need drainage along the fence line and maybe a pit somewhere else in the yard. Is this my cost or would the owners corporation be responsible?

Answer: The responsibility on installing additional drainage in your backyard will depend on who is responsible for the ‘air space.

The responsibility on installing additional drainage in your backyard will depend on who is responsible for the ‘air space’, be it the owner or the Owners Corporation . This will depend upon what is specified on the registered strata plan for your particular scheme.

Because a strata plan is a 2 dimensional diagram trying to define 3 dimensional details, strata plans are often written with notations on the plan. Below are examples of common notations that describe the area of the lot and the items contained within the lot.

Each plan will be different and needs to be read carefully so that you can understand how your ‘lot space’ is defined vs ‘common property space’.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

This post appears in the June 2022 edition of The NSW Strata Magazine.

QUESTION: What do you do if your building is flooding during a storm event? What can you do to mitigate against storm and flood damage in strata buildings?

Answer: Remember to take lots of pictures and videos to record the damage as it occurs. This assist both insurance specialists and repair and maintenance crews to locate and repair the damage. Plus stay safe!

This conversation was recorded during the March 2022 weather event on the east coast resulting in widespread flooding and water damage. Our thoughts are with everyone affected by the recent weather events and flooding. Please stay safe.

I’m speaking with David Nixon from Stormwater Sydney about addressing flooding and water issues in strata properties.

David talks about what damage he is currently seeing in strata buildings around Sydney and what residents and committee members can do now as the rain is still falling and is forecast to continue to fall over the next few days. If you see water damage or flooding occurring in your building, what should you do?

We then speak about what to do when the sun comes out again – preventative measures you can take and how to mitigate damage from floods during future events.

David Nixon Stormwater Sydney E: david@stormwatersydney.com P: 0419 156 986

This post appears in Strata News #550.

Question: What happens if the owners corporation does not carry out necessary maintenance due to lack of funds?

We have just discovered that our strata building’s 60-year-old roof and gutters are in urgent need of replacement within the next 12-18 months.

The building does not have enough money in the capital works fund to cover this maintenance. The ground floor lot owners do not want to approve and pay a special levy to cover the costs as they feel they do not benefit from repairs to the roof and gutters.

Can we raise a Special Levy for critical works? I’m concerned that too many owners will vote a Special Levy motion down. The unit entitlements for lots that disagree would be greater than 25%.

If the problem is ignored, the costs to fix the damage caused by a leaking roof will far outweigh the preventative repair costs.

What options are available to the building to ensure this maintenance work is carried out?

Answer: If the owners corporation does not take active steps to fix common property, there is the chance that an owner may lodge an application for the works to be done pursuant to an order.

Repairing and maintaining common property is one of the most important roles of the owners corporation. The obligation is a ‘must’, is strict and there’s a huge amount of caselaw on the matter. See S106 of the Act. The owners corporation can absolve itself of this obligation provided there isn’t consequential issues that come from it (3b of S106). Guttering is an important part of the building structure and unless fixed, is likely to cause further issues.

Raising a levy requires a majority resolution, so even if 25% were against that is ok.

If the owners corporation does not take active steps to fix the guttering, there is the chance that an owner may lodge an application under S106 for the works to be done pursuant to an order.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #543.

Question: Our three lot strata scheme requires repairs. There is no money in the sinking fund and other owners do not want to pay. Is there any law preventing us as lot owners from personally paying for the repairs/maintenance to our own townhouse?

We own a townhouse in a 3 lot strata plan. There are a number of maintenance/repairs required to fix rotting timber in balconies/door frames on all three lots. The sinking fund does not currently have enough funds to cover the quoted costs, and two of the three lot owners do not have enough personal funds to contribute special levies and are therefore likely to block the vote for these.

Is there any law preventing us as lot owners from personally paying for the repairs/maintenance to our own townhouse to ensure this is fixed promptly? Could a by-law or similar signed agreement be established to allow us to cover repair costs to our house personally? Alternatively, could a by-law be introduced to require lot owners to maintain their own house (excluding common access/property areas)?

Answer: Ask the Owners Corporation for consent to carry out the repairs & maintenance at your own cost by way of a by-law.

You could first ask the Owners Corporation for consent to carry out the repairs & maintenance at your own cost by way of a by-law.

Alternatively, a by-law could be created that the rotting timber frames be the responsibility of the individual owners (but you will need the written consent of the affected owners before transferring such responsibility).

Double check the by-laws applicable to the scheme and the date of registration of your strata plan because depending on the content and date, the dividing wall/window between the internal area and balcony, might be the responsibility of the individual owners already. In case the timber frames are in fact common property, the Owners Corporation is under a strict duty to repair & maintain them and the Tribunal can order the Owners Corporation to effect such repairs and maintenance (on application/attempted mediation).

Finally, Section 126 of the Strata Schemes Management Act 2015 (NSW) gives power to the Tribunal to Order an Owners Corporation to carry out or to approve certain works carried out to the common property:

126 Orders relating to alterations and repairs to common property and other property

1. Order requiring owners corporation to carry out work on common property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following–
   
   1. minor renovations or other alterations to common property directly affecting the owner’s lot,
   
   
   2. carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.


2. Order consenting to owner’s work on owners corporation property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a”work approval order” ) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #541.

Question: Who bears the costs of correcting unapproved modifications to common property?

Who bears the costs of correcting unapproved modifications to common property?

A couple of lot owners in our strata have cut down the fire-rated main doors to their units to accommodate new tiling or carpet. A recent inspection by a fire certifier has now listed these doors as defective. The modifications were not approved by the Body Corporate. One door now needs to be replaced and the other needs a special attachment fitted to the bottom of the door.

Although fire-rated doors are common property and the responsibility of the Body Corporate, it seems reasonable that the lot owners should be charged the costs to make the doors compliant with fire safety regulations.

So, are these costs a lot owner or a body corporate responsibility?

Our Body Corporate would undertake these necessary fixes.

If indeed the costs are a lot owner responsibility, can the costs be added to the respective levies for these apartments?

If the lot owner refuses to pay then the debt would remain, the lot owner would be unfinancial and unable to vote on resolutions. Is this correct?

Does the same logic apply to costs of correcting any unapproved modification to common properly undertaken by a lot owner?

Answer: Section 106 requires repairs and maintenance once common property becomes defective; it is a strict legal duty.

The starting point is that the owners corporation must pay for repairs and maintenance of common property including reversing or remedying any unauthorised works to common property however the owners corporation may have a right to recover that cost from the person who did the unauthorised works.

Section 106 of the Strata Schemes Management Act 2015 (SSMA 2015) requires an owners corporation to repair and maintain common property. Section 106 requires repairs and maintenance once common property becomes defective; it is a strict legal duty. Where common property has been altered due to unauthorised works, the duty has been held to extend to restoring common property to its original state before the unauthorised works were carried out (see cases such as John Maait Properties Pty Ltd v The Owners – Strata Plan No 50396 [2019] NSWCATAP 26 and The Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411).

While the owners corporation must re-instate common property because of the unauthorised works of a third party, that does not leave the owners corporation without a remedy. Generally speaking, a person (eg a lot owner) is not permitted to do work to another person’s property (eg the owners corporation’s common property) without permission (see The Owners – Strata Plan 32735 v Heather Lesley-Swan [2012] NSWSC 383).

A person who does unauthorised works to another person’s property commits a legal wrong called trespass. In addition, in the strata context, it is likely such unauthorised works are also a breach of by-laws such as model by-law 5 for pre-1996 strata schemes and (section 111) of the SSMA 2015. Under section 132 of the SSMA 2015, the owners corporation could seek in NCAT an order that the lot owner rectify the unauthorised works or an order that the lot owner pays to the owners corporation the cost of rectification so that the owners corporation can rectify the unauthorised works. The owners corporation should obtain legal advice before taking legal action to ensure that it has the evidence to be successful, that it has taken the necessary steps to authorise commencement of litigation and that it is suing the correct person.

The cost of rectification should not be added to the lot owner’s levy account unless either the lot owner has agreed to the amount of it or a court has ascertained that amount (see The Owners – Strata Plan No 52098 v Khalil [2014] NSWLC 2). Once the amount is ascertained by either agreement or court order, the lot owner would be an unfinancial owner and could not vote at general meetings until they paid the amount.

Carlo Fini Lawyer (NSW)

This post appears in Strata News #535.

Question: Are there any legislative requirements to steam clean/paint common area garbage rooms?

1. Are there any Legislative requirements to steam clean/paint common area garbage rooms serviced by a garbage chute and recyclable bins?


2. I understand that under the OH&S requirements that a commercial property must repaint a garbage room every 7 years. Does this apply to residential strata as well?

Answer: There is no legal requirement to steam clean or paint common area garbage rooms.

1. In short No. There is no legal requirement to steam clean or paint common area garbage rooms. We would suggest as good practice that the periodic cleaning of carpets, walls, garbage rooms and garbage chutes be undertaken by a professional service. The main garbage room should be thoroughly cleaned weekly / bi weekly when the bins are put out for council collection and returned in a clean state. This is basic good hygiene for the prevention of spreading germs and general grime.


2. This is not a requirement in a strata building although, as a recommendation, we would encourage all strata buildings to ensure the garbage room locations are clean, free of all dirt, grease, excess rubbish and, if feasible, to repaint the garbage rooms in line with regular touch up paint cycles for their buildings as and when they become tired and in need of a refresh.

Dino Biordi LUNA – The Building Management Company E. dino@luna.management P: 1800 00 LUNA (5862)

This post appears in the December 2021 edition of The NSW Strata Magazine.

Question: A water feature has not been maintained and is now causing water to seep into the basement. A group of lot owners would like to remove the feature. How can we ensure it is repaired and maintained?

We have a water feature that has not been well maintained over the 20 years I have lived in the building. We now have water dripping into the basement. A group of Owners would like to close, rather than fix the issue. The water feature is an integral part of the atrium and is a selling point for the building.

If the area was either re-waterproofed or retiled as it was in 2002 and the pond motor was serviced regularly, the issues could be resolved. The cost has been worked out to be less than a cup of coffee per unit per year.

Under the Strata Act, can the Owners Corporation insist on closing the water feature? Do they have to propose a way to enhance the area created by removing this feature?

Answer: The Owners Corporation must maintain the structure.

The Owners Corporation must maintain the structure. This would include the water feature in the atrium see (section 106). However, the Owners Corporation, by Special Resolution, can ‘alter the common property’ (see section 108 (1)). ‘Special Resolution’ (see section 5) is included within the response above.

In essence the removal of the ‘water feature’ needs to go to an Annual General Meeting and secure not more than 25% against the motion by the votes cast.

In terms of fixing the water feature it would be beneficial to ensure that the underlying issues are identified in the first instance. A scope of Works for remedial repairs should then be obtained from appropriately qualified building consultant and/or other experts as required. The Owners Corporation will then be in a position to understand the true cost of remedial repairs by taking the Scope of Works to the market. Upon their return quotes, an informed decision can then be made regarding the best course of action.

Scott Driscoll Sedgwick Building Consultancy division E: scott.driscoll@au.sedgwick.com P: 0409 632 003

This post appears in the November 2021 edition of The NSW Strata Magazine.

Question: We seem to be the only apartment in our 70 lot building without TV reception in the loungeroom. Is it strata’s responsibility to fix this?

Our unit appears to be the only one out of 70 units that has no TV signal coming out of the socket in our loungeroom wall. The fire cupboard outside our unit door has signal to it but then it is failing somewhere between there and our wall socket in the lounge room.

The aerial guy that came to investigate said there must be a splitter box somewhere inside our unit but he cannot find it. It could even be in a wall or the floor slab.

We have a second aerial socket in the wall of our main bedroom that works. Apparently, the only way to get a signal to the loungeroom is to run a separate cable through the apartment. The quote is $1200.

The Strata Committee has said this is a lot owner responsibility and I must pay if I want TV reception in my loungeroom. Are they correct?

Answer: The general rule is that anything behind the TV wallplate is the responsibility of the owners corporation.

When it comes to the TV reception in apartment buildings, it can be complicated to determine who’s responsible.

At the end of the day, the strata contract should outline what equipment is the responsibility of the strata versus what is the responsibility of the apartment owner.

The general rule is that anything behind the TV wallplate is the responsibility of the owners corporation. On the other hand, if it is something inside the apartment that is causing the TV reception to fail (for example a faulty fly lead), that would be the responsibility of the apartment owner. In your case, this would probably mean that the hidden splitter or any other cabling that has failed behind the wallplate is the responsibility of the owners corporation to repair. If we are talking about a new outlet (not a repair of existing equipment), this would be the responsibility of the apartment owner.

There is a blurred line when there are accessible communications cupboards for each apartment (within each apartment) that are accessible. It is more often the case that if there is equipment (eg a splitter) located in one of these cupboards, this is the responsibility of the apartment owner. However, with your particular situation, this does not sound like it is the case.

The technician’s solution sounds plausible. There may also be a way to locate the internal cabling and install a tap or splitter so the new cable run isn’t as difficult. However, it is very difficult to determine a solution without an onsite visit to look at the exact circumstances of the apartment.

Jason Burgess Install My Antenna E: jason@installmyantenna.com.au P: 0408 472 646

This post appears in the November 2021 edition of The NSW Strata Magazine.

Question: Is it the responsibility of the owners corporation to service and maintain the grease trap?

I work at an apartment complex and the grease trap is located on common property on P2 carpark level. The grease trap is located in a room behind the carwash bay. Is it the responsibility of the owner’s corporation to service and maintain the grease trap?

Answer: Refer back to the SMS and check the schedules

In short, in our experience of similar circumstances – yes.

It sounds like you have entered into a mixed-use strata complex. If so, it’s highly likely that this forms part of the “Shared Facilities” within the Strata Management Statement (“SMS”) and will have a small contribution from all Building Management Committee (“BMC”) members which the Strata Plan and Retail make up. The SMS will have a schedule of all the items/assets the BMC contributes to, including the various “onsite grease traps and tanks”. I would refer back to the SMS and check the schedules. In our experience, with a BMC type of set-up, the contribution from the Strata Plan for that particular asset is minimal. It can range anywhere between (3-10%) with the main contribution coming from the retails lots.

Even without a BMC, the “trade waste plumbing system” forms part of the overall hydraulic design that all lot owners contribute. However, you can still seek advice from a hydraulic consultant if there has been an overuse or abuse of the grease trap. In some instances, it would be worth checking if the grease trap services the car wash bay. Depending on when the complex was built, all carwash bays must have a separate grease arrestor to the grease trap. However, this development could have a particular case that warrants further investigation.

Dino Biordi LUNA – The Building Management Company E. dino@luna.management P: 1800 00 LUNA (5862)

This post appears in the October 2021 edition of The NSW Strata Magazine.

Question: We own a villa in a two lot strata scheme that is in need of repainting. The owners of the other lot do not want to pay for the property to be repainted.

We own a villa in a two lot strata scheme that is in need of repainting. The owners of the other lot do not want to pay to have the property repainted. We have offered to bear the cost of repainting both lots ourselves, but they declined.

I am told by our strata manager that we can paint our lot but cannot change the colour. If we obtained agreement from the other lot owner (if needed) can we change the colour providing it is sympathetic eg from pale pink to pale grey?

Answer: You are within your rights to make an application to NCAT that the Owners Corporation complies with its statutory duties ie re-paint the exterior of the building

An Owners Corporation is responsible for the repair & maintenance of the common property including external painting. You are within your rights to make an application to NCAT that the Owners Corporation complies with its statutory duties ie re-paint the exterior of the building (though you would have to go through the mediation process first).

As you are carrying out “works” to the common property, you would need a by-law (to be passed by special resolution) additionally, because, arguably you would be changing the external appearance of the lot (and the proposed colour would not “be in keeping with the appearance of the building”). So, if the other lot owner agreed by way of approving a by-law, the colour change would be acceptable (subject to any Council approvals/restrictions which may apply to the colour).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the October 2021 edition of The NSW Strata Magazine.

Question: Can the owners corporation park a common property maintenance issue forever, quoting lack of funds?

If common property repairs cost $10k to fix and strata have $20k in the capital works account, can the owners corporation park the common property maintenance issue in the pending list, citing a lack of funds?

Answer: Definitely not.

Definitely not. Section 106 of the Strata Schemes Management ACT states that the Owners Corporation must repair and maintain the common property to ensure that it’s in working order. So if it’s failed, it’s not working, it doesn’t operate and Owners Corporation has an obligation to repair it. Having no funds is not an excuse to make that obligation. It just means that the Owners Corporation needs to take steps to raise those funds. That’s why legislation permits you to raise what they call a special levy that’s above and in addition to your ordinary coordinately quarterly levies, so they will just have to raise a special levy to meet the obligations to repair and maintain the failed common property.

So if they don’t have enough funds, the short answer is they must raise those funds.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the August 2021 edition of The NSW Strata Magazine.

Question: Who is responsible for a broken window in a strata unit?

Who is responsible for a broken window in a strata unit? Who should be invoiced – the tenant (occupying at the time the glass broke), the owners, or the Owners Corporation?

I have read the Fair Trading Common Property Memorandum but under 9 Windows for Owners Corporation Responsibilities it does not specify the glass. 

Could you please advise what happens if a tenant breaks the window glass? Is it the responsibility of the landlord, tenant or the Owners Corporation?

Answer: Generally, if a tenant breaks the glass either the tenant is liable to replace it (if the tenant caused the breakage) or the Landlord’s insurance should cover it.

Generally, if a tenant breaks the glass either the tenant is liable to replace it (if the tenant caused the breakage) or the Landlord’s insurance should cover it. The residential tenancy lease would govern the exact position.

Although, in saying the above, glass is deemed to be common property if situated on a communal boundary and there are no by-laws to state otherwise. Therefore if there is no evidence to confirm the tenant caused the breakage, the owners corporation is responsible to repair the glass and may be able to claim it on the building insurance under accidental damage if the cause was of such nature.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the August 2021 edition of The NSW Strata Magazine.

Question: In our 20 year old building, the original water membrane in many unit’s bathrooms are failing. Our Strata Manager insists it is the responsibility of the owners corporation. Is this correct?

We are a small strata unit block with 19 units. Each unit has two bathrooms. The unit block is 20 years old. We’ve received a number of complaints for water leaks caused by failure of the original bathroom membrane affecting only the individual lot’s Internal bedroom / lounge / wall.

We are of the view that it is the responsibility of the individual lot owner and not the owners corporation as the leak is affecting only the individual lot. However, our Strata Manager insists it is the responsibility of the owners corporation. 

Can we get a definitive answer on who is responsible for the repairs?

Answer: This is a matter that the Owners Corporation is likely responsible for.

This is a matter that the Owners Corporation is likely responsible for.

The waterproofing membrane source should be looked into. It may be the case the pipes are within the common property wall which is affecting this unit. This is why it would be a matter for the Owners Corporation to attend to.

According to section 106 of the Strata Schemes Management Act 2015 this relevantly provides:

1. An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.


2. An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

Once it is determined it is common property, there is an obligation on the Owners Corporation to properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the July 2021 edition of The NSW Strata Magazine.

Question: Is the owners corporation required to carry out necessary maintenance to common property within a legislated timeframe? In this case, for mould.

I have recently informed the owners corporation of extensive mould and wood rot inside a large window. On the exterior, a substantial portion of the cladding under the window is soft, like wet cardboard.

When it rains the smell of dampness and mould is intense throughout my unit and causes migraines and breathing difficulties.

What is the legal timeframe for the owners corporation to repair or replace the window and cladding etc.

Answer: Failing to exercise a function is defined in section 232 as not acting for a period of two months.

The owners corporation has a strict liability to maintain and repair the common property that starts as soon as it is in a state of disrepair. In terms of timeframes, you may want to consider section 232 of the Strata Schemes Management Act 2015 which has a provision enabling NCAT to make orders where the owners corporation has failed to exercise a function. Failing to exercise a function is defined in that section as not acting for a period of two months.

You may want to start the Fair Trading mediation process as the mediation unit is backlogged at the moment and you may not be allocated a mediation date for 4 to 6 weeks.

Allison Benson Kerin Benson Lawyers E: allison@kerinbensonlawyers.com.au P: 02 4032 7990

This post appears in Strata News #485.

Question: We’ve found out the marble tile installed in our apartment was unapproved by the owners corporation and they are asking us to pull it up. Isn’t the tile part of the common property? Shouldn’t the OC replace the flooring at their cost?

We bought an apartment with marble tile flooring glued to magnesite on top of the concrete slab.

We later find out that this marble tile installation many years ago was unapproved by the owners corporation.

In the event that the OC want this hard floor taken up under section 106 of SSMA 2015:

1. Does the unapproved marble tile constitute being part of common property?


2. Does the OC have an obligation to replace the flooring at their cost?

Answer: You might want to review the strata plan.

The flooring is common property if it is affixed to common property floors. You might want to review the strata plan.

The general position on the Owners Corporation’s duty is contained in section 106(1) of the Strata Schemes Management Act 2015 (“the Act”) : An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation. This is s a duty to ensure the common property is maintained.

The Owners Corporation can resolve this is not appropriate and in its decision not to maintain, review or repair will not affect the safety of the building in accordance with section 106(3) of the Act.

3. This section does not apply to a particular item of property if the owners corporation determines by special resolution that–


1. it is inappropriate to maintain, renew, replace or repair the property, and


2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

The decision will need to be supported and meet the conditions above.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #484.

Question: I had an issue with mould in my bathroom. As the mould was due to a leak in the common property wall, should strata pay for the repairs?

I noticed some mould in my bathroom. We discovered that the bath was not installed correctly causing a separation of 5-10mm between the bath and the walls along the bath allowing water to enter the gap.

As the mould was due to a leak in the common property wall, should strata pay for the repairs?

Answer: If the bath was replaced/re-installed as part of a subsequent renovation, the owner carrying out those renovations would have assumed responsibility for the renovations pursuant to a by-law.

If the bath was an original installation at the time of the registration of the strata plan (subject to any notations on the strata plan and by-laws applicable to your scheme), the repairs are likely to be common property repairs. However, if the bath was replaced/re-installed as part of a subsequent renovation, the owner carrying out those renovations would have assumed responsibility for the renovations pursuant to a by-law.

Further, you have rights pursuant to Section 126 of the Strata Schemes Management Act, 2015 (NSW)

Orders relating to alterations and repairs to common property and other property

1. Order requiring owners corporation to carry out work on common property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, order the owners corporation to consent to work proposed to be carried out by an owner of a lot if the Tribunal considers that the owners corporation has unreasonably refused its consent and the work relates to any of the following:
   
   1. minor renovations or other alterations to common property directly affecting the owner’s lot,
   
   
   2. carrying out repairs to common property or any other property of the owners corporation directly affecting the owner’s lot.


2. Order consenting to owner’s work on owners corporation property The Tribunal may, on application by a lessor of a leasehold strata scheme or an owner of a lot in a strata scheme, make an order (a “work approval order”) approving of minor renovations or alterations or repairs already made by an owner to common property or any other property of the owners corporation directly affecting the owner’s lot if the Tribunal considers that the owners corporation unreasonably refused its consent to the minor renovations or alterations or repairs.


3. A work approval order is taken to be the consent of the owners corporation to the renovations, alterations or repairs and may provide that it has effect from a day specified in the order that occurred before the order was made.


4. In deciding whether to grant a work approval order or to provide for the order to have effect from a day that occurred before the date of the order, the Tribunal may take into account the conduct of the parties in the proceedings, for example, if an owner did not first seek the consent of the owners corporation before carrying out the renovations, alterations or repairs.


5. Responsibility for ongoing repair and maintenance of affected property The Tribunal may specify in an order under this section whether the owners corporation or the owner of the lot has the ongoing responsibility for the repair and maintenance of any additional property arising out of a minor renovation or alteration or repair to common property approved under the order.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the June 2021 edition of The NSW Strata Magazine.

Question: My garage is in immediate need of repair to the point of causing damage to my car. I have requested maintenance but nothing is done. What can I do?

My basement garage in my strata building has no glass in its windows, just some plasterboard covering where glass should be, and the window is ‘in’ an open drain from the garden above. The frame is also rotting away, and there is concrete cancer over my parked car.

Grass, weeds, dirt/soil and water enter through the window, causing further deterioration to the frame.

Three times in 3 years I have requested this window be repaired or bricked up (the cheapest option) and even obtained three quotes. All to no avail.

I’m waiting for the day I see scratches on my car from where the concrete has fallen onto it.

Can you please tell me what my options are?

Answer: It is the strict duty of the Owners Corporation to repair and maintain the common property

The subject window appears to be common property and it is the strict duty of the Owners Corporation to repair & maintain it. You may apply for mediation and, if the Owners Corporation refuses to attend or no resolution is reached, you may seek orders from NCAT that the Owners Corporation carry out its duty.

Under the strata legislation you may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by you as a result of the Owner Corporation’s failure to repair and maintain the common property.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #479.

Question: Does neglected maintenance within a lot become the owner’s responsibility after a certain period?

We have a Strata Scheme that is over 28 years old. Around half of the 70 lots have not been renovated. At what point can the OC be removed from responsibility of “original” wet areas that have the major financial burden on the OC?

It does not seem reasonable to replace bathrooms at the cost to owners that have updated their lots at their own expense and be burdened by those who have not. Does neglected maintenance within a lot become the owner’s responsibility after a certain period?  Especially given that there is no way for the OC to review or maintain the “wet areas membrane” if it’s not looked after by a lot owner.  

Answer: This will depend on the nature of the work required to be undertaken.

It would be good to know on what date the strata scheme was registered. You should also review the by laws that apply to this scheme.

Presently section 106 of the Strata Schemes Management Act 2015 is the guiding statutory basis for determining the Owners Corporation’s obligations in relation to common property.

This will depend the nature of the work required to be undertaken.

1. An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.


2. An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

Section 106(3) does also provide that it is not applicable to a particular item of property if the owners corporation determines by special resolution that:

1. it is inappropriate to maintain, renew, replace or repair the property, and


2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

The nature of this will need to satisfy the test in section 106(3) and if it does a resolution to that effect is required by the owners corporation at the meeting.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #474.

Question: We recently had a Special Levy passed to replace Balustrades on balconies in our Strata Block. We own ground floor units and therefore do not have balconies let alone balustrades. Should we be exempt from this Levy?

We recently had a Special Levy passed to replace Balustrades on balconies in our Strata Block.

We own 2 ground floor units and therefore do not have balconies, let alone balustrades. 

The total of our Special Levies for the two lots is almost $7000. Should we be exempt from this Levy?

We applied for Mediation, but the Owners Corporation were not interested, so we have made an application to NCAT for a hearing.

Are we correct in not wanting to pay for something that doesn’t affect or benefit us?

Question: Our apartment block has a car stacker. As our apartment doesn’t have a car space, why we are levied for maintenance etc when this common property is of no benefit to us?

The following response answers both questions:

Answer: If the car stacker and balcony balustrades are common property and there is no common property rights by-law transferring responsibility for their repair and maintenance to the lot owners who use them or have the benefit of them, then the owners corporation must pay for their repair and maintenance from funds to which all lot owners contribute.

If there is nothing noted on the strata plan that indicates the car stacker or the balcony balustrades are lot property and not common property, then the car stacker and balcony balustrades will likely be common property. If they are common property and there is no common property rights by-law transferring responsibility for their repair and maintenance to the lot owners who use them or have the benefit of them, then the owners corporation must pay for their repair and maintenance from funds to which all lot owners contribute.

The above situation is the same as a door or a window in an external common property wall that only services or benefits one lot: the door and window are common property that the owners corporation must repair and maintain.

Even if common property can only be used by some lot owners and not all, it is still common property that the owners corporation must pay to repair and maintain. The only way an owners corporation can pay for repairs and maintenance is to raise levies on all lot owners.

Unfortunately, there is no legal basis for a lot owner to avoid paying a levy that is being used to repair and maintain common property that that owner does not have the use or benefit of. Therefore, in the NCAT case brought by the lot owners who wish to be exempt from a special levy to repair balcony balustrades, assuming the balcony balustrades are common property and there is no common property rights by-law transferring responsibility for their repair and maintenance to lot owners, based solely on the argument that their lots do not have any balcony balustrades, it is likely that NCAT will dismiss the case and there is the possibility that NCAT will make a costs order against them if it finds that special circumstances exist.

NCAT is likely to find special circumstances exist and make that costs order if the case has no tenable basis in law or fact, which may appear to be the case here. However, these lot owners should seek legal advice before proceeding any further with their case to understand whether they have an arguable case with prospects of success, what could happen if NCAT dismisses their case and the costs orders that could be made against them.

Carlo Fini Lawyer (NSW)

This post appears in the June 2021 edition of The NSW Strata Magazine.

Question: The hallway connecting several units and the lift has had a very foul odour for quite some time. What can I do to get strata to investigate the cause and rectify the problem?

The hallway connecting several units and the lift has had a very foul odour for quite some time. Strata have been notified about the problem. They have not identified the cause of the problem and only respond by cleaning the carpets. The odour keeps returning after a couple of weeks.  

I have lost two tenants because of this and my unit has now been vacant for 2 months. Potential tenants say they would lease the unit if the smell wasn’t there. 

What can I do to get strata to investigate the cause and rectify the problem?

Answer: Ask the strata manager when the next service or maintenance of the elevator is. Meet the tech and ask for the elevator pit to be checked.

Sometimes the elevator pit will get water in it, which will become stable over time. Ask the strata manager when the next service or maintenance of the elevator is, meet the tech, and ask for the elevator pit to be checked. Alternatively, make a separate service call, it will cost you a few dollars, and ask to meet the mechanic and ask him/her to inspect the pit and maybe the roof of the car, just in case.

See how you go.

Nigel Wraight Forte Asset Services E: nigel@forteas.com.au P: 1800 351 078

This post appears in Strata News #469.

Question: Who is responsible for repairing a pipe that passes through common property, but only services one unit?

Our strata building of 6 was built in the late 60’s. There is a hot water pipe under the ground floor (common property) servicing one single unit and it appears to have a leak according to tradesmen renovating the unit.

This pipe services only that unit and no other unit taps into it. Who is responsible for repairing a pipe that passes through common property, but only services one unit?

Answer: If the pipe only serves that lot and is not within any common property wall then that would fall on the individual owner as his or her responsibility. However, if the pipe is within a common property wall it would fall on the Owners Corporation as its responsibility to maintain and repair.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #464.

Question: In NSW, do owners corporations need to hold a meeting and pass a resolution to replace something that existed on the common property and was removed to carry out repairs?

In NSW, do owners corporations need to hold a meeting and pass a resolution to replace something that existed on the common property and was removed? For example, floor tiles on stairs were removed so that cracks in the concrete could be repaired.

Some time has passed and now the strata committee says there are not enough funds to lay new tiles. The strata committee obtained 4 quotes, voted on which to accept and want to ask the tiler to start work. Some owners say the work cannot start until approval is given in an EGM and other owners say that owners corporation consent is not required to replace tiles because the stairs were tiled previously. Most owners want the work done as soon as possible to avoid restrictions in future if covid-19 worsens.

For the record, no owner is objecting to the style of the tiles as they’re almost the same as the previous tiles.

Answer: The strata committee can approve repair and maintenance of the common property.

Assuming that the strata committee is not restricted by resolution at a general meeting from making such a decision, the strata committee can approve repair and maintenance of the common property which would include replacing common property floor tiles with the same or similar tiles if the same tiles cannot be found.

Any addition or alteration of the common property would require a special resolution at a general meeting under section 108 of the Strata Schemes Management Act 2015.

Matthew Jenkins Bannermans Lawyers E: enquiries@bannermans.com.au T: 02 9929 0226

This post appears in Strata News #458.

Question: Our owners corporation is up for $200,000 to repair concrete spalling in one unit. Larger units have to pay more. How is this fair? Can we limit our liability?

I am the owner/ occupier and Strata Committee Member of a 4 bedroom unit in a block of 12 units. Within the scheme, there are also some 2 bedroom units.

Last year, a 2 bedroom unit was sold. During renovations by the new owner, concrete cancer was found.

The Strata Manager engaged an engineer. Coring samples were taken and the report showed extensive concrete spalling.

We have been informed that, for this flat alone, the owners corporation must pay for:

• rectification of all the floors throughout this flat
• balcony rectification and retiling
• kitchen cupboards etc and tiling.ie total renovation
• bathroom renovations and new fixtures such as vanity, etc.

We’ve been quoted from $200,000 for the repairs. Lot owners in larger flats are to pay a larger share. Is this fair and equitable?

The lot owners would like to know the legal limits of our financial liability.

Do we need to pay for total kitchen and bathroom renovations (cupboards, fixtures, taps, shower cubicle, vanity etc) of this old flat which was about to be renovated anyway by the new owner?

Do we have a legal right to refuse to pay for these “extras” except the rectification of the concrete cancer in the floor?

Could the owner legally apply for rent loss from us?

The spalling in the kitchen / living room area was caused by long term water ingress due to leaky windows and balcony doors in times of windy storms. The Strata Manager had known for a long time that the windows and balcony doors let in water.

Are we able to claim any of this on strata insurance?

Do we need to get legal advice to set limits to our liability? The matter was not discussed with the Owners Committee. We were just “informed” of the cost.

How do other affected strata blocks handle such a situation?

Answer: All costs and expenses of an owners corporation for the repair of lot and common property caused by a defect in the common property must be paid for by all individual owners in proportion to their unit entitlements.

All costs and expenses of an owners corporation for the repair of lot and common property caused by a defect in the common property must be paid for by all individual owners in proportion to their unit entitlements.

Does the owners corporation have to pay for the bathroom and kitchen?

If these items were damaged due a defect in the common property, then yes, you do need to pay for total kitchen and bathroom renovations, however it is difficult to see how taps could be damaged – in our view they could likely be reused.

The Owners Corporation only has to repair like for like and any superior finishes should be the responsibility of the individual owner. For example, if the kitchen contained vinyl benchtops and the owner wanted, say, replacement with granite, this upgrade would be at the cost of the individual owner.

Lot owners do not have the legal right to refuse to pay for any “extras” if there is evidence that the defect in the common property caused the damage to lot property.

Could the owner legally apply for loss of rent?

An owner of a lot in a strata scheme may recover rent loss from the owners corporation, as damages for breach of statutory duty (ie the defect in the common property), any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.

The Owners Corporation is under a strict statutory duty to keep all the common property in good and serviceable repair.

Can this damage be claimed on strata insurance?

Some leaky pipes water damage may be covered, however, generally, building defects, wear and tear, general maintenance are generally excluded under the strata building insurance policy. You must review the specific terms of your insurance.

Can the owners corporation limit their liability?

It is always prudent to obtain legal advice, however, the engineer’s report will likely determine what damage has been caused and what the source of that damage was (and therefore, who was liable).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the February 2021 edition of The NSW Strata Magazine.

Question: Our sinking fund has run out of money and we need a lot of repairs and maintenance done to common property.

Our sinking fund has run out of money and we need a lot of repairs and maintenance 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 this will require a lot of scaffolding.

I had a remedial report commissioned that was agreed to at an AGM detailing about $360k of works.

We did not have a capital works plan in 2020 so I’ve had one commissioned. The report identified that we needed to raise 60k per lot (taking into account contingencies) and that we also need to double the amount of our levies. These need to be increased from 5k to 10k to cover future expenses.

Owners have agreed to levy increase but WILL not agree to a Special Levy of 360k. If we leave these issues they will get worse and if we use up the increased levies for the current maintenance that is required, we will not have money left for future expenses like replacing the roof and repainting in 10 years time.

We live in a block of 6 lots. What can we do?

Answer: The owners corporation needs to be made aware of its strict liability to repair and maintain the common property and that failure to do so exposes it to applications to NCAT to force them to comply.

The owners corporation needs to be made aware of its strict liability to repair and maintain the common property and that failure to do so exposes it to applications to NCAT to force them to comply with their statutory duties and to claims for compensation for breach of such statutory duties.

You may apply to NCAT for Orders that a compulsory managing agent be appointed and make all decisions of the owners corporation and strata committee. The downside is that no one will have a vote for the duration of the appointment, but, the managing agent will arrange to carry out the works (or NCAT will stipulate that the agent must carry out the specified works) and pursue owners for outstanding levies.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #444.

Question: My balcony doors & shutters were damaged in strong winds 7 months ago, but nothing has been done. Is this considered acceptable to wait for an Insurance company before any repairs are carried out when it could be dangerous?

I own a Strata apartment in Sydney which was built in 2013. My apartment is on the top floor (level 4) and balcony doors & shutters were damaged in strong winds back in February 2020. The sliding balcony doors, although very heavy, were pushed inwards off their track in the wind and were jammed shut. Nothing has been done to secure these doors and I get very frightened every time we have strong winds.

I have contacted Strata Management and the Committee various times as I am frightened that if wind can push them half off inwards, there is no guarantee they won’t be pushed the whole way in next time. All I get told is it is part of an insurance claim and nothing will be done until that is finalised.

I did ring the Insurance company myself about 3 weeks ago and was told the claim was approved but it seems some things may not have been although no one has told me if that has anything to do with me.

I am thinking of putting in a complaint to NSW Fair Trading as it over 6 months and I am frightened for my safety and any further damage to inside my apartment. I don’t mind waiting for the shutter to be put back up but I think the door should have been fixed straight away.

Is this considered acceptable to wait for an Insurance company before any repairs are carried out when it could be dangerous?

Answer: The delay is quite unreasonable, however, you have an obligation to mitigate your losses.

Leanne Habib, Premium Strata:

It is likely that the subject sliding doors are common property (subject to any notations on the strata plan or any by-laws to the contrary) and therefore the responsibility of the Owners Corporation, and, in this case, its insurer.

The delay is quite unreasonable, however, you have an obligation to mitigate your losses. In other words, you should notify the Owners Corporation in writing, that you will carry out the required repairs, at the Owners Corporation’s expense, if they do not do so by a certain date. If they do not carry out the works within the stipulated time frame, then we would recommend you temporarily secure (rather than carry out permanent repairs or replacement, if possible) the doors and remit the invoice to the Owners Corporation for payment.

Lodgement of an insurance claim does not relieve the Owners Corporation of its strict liability to repair and maintain the common property.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

Tyrone Shandiman, Strata Insurance Solutions:

Most insurance policies have conditions which require you to take all necessary steps to minimise and/or stop any further loss or damage from occurring and maintain your duty of care to others by taking reasonable actions to address safety concerns. The question of what is reasonable is subjective and can differ from person to person.

If a safety hazard exists until an insurer indemnifies costs for a claim, the party that has responsibility to maintain the balcony doors should take action to address this safety hazard. In this instance and given the insurance claim is taking so long, it might include conducting repairs prior to the insurance claim being finalised. The act of repairing damage generally will not affect whether the insurer accepts the claim, however if during assessment the insurer deems the damage not covered, the party who has responsibility to maintain the balcony doors will be responsible for costs associated with those repairs. If you are repairing prior the claim being settled, we recommend you ask the repairer documents their view on the cause of the damage.

If the owners corporation are responsible for the balcony doors Section 106 (1) of Strata Schemes Management Act 2015 states An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances and the specific coverage afforded under their policy wording. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #434.

Question: We had a leak in our ceiling and now mould is growing on the water damaged parts. We reported it to our strata manager months ago, but nothing has been done to fix the problem. What are my options as an owner?

We had a leak in our ceiling and now mould is growing on the water damaged parts. We reported this to our strata manager months ago. He advised this was from a balcony above us and that it was going to be fixed. 

I have followed up numerous times and they have not been able to tell us if it has been fixed and can’t tell us when the damage to our ceiling will be fixed either. 

I’m concerned about the mould for health issues. Is there a legal turnaround time for repairs to be made? Can you please tell me what my options are as an owner?

Answer: For issues relating to maintenance of “lot owners” property, legalisation does not provide the same obligation on maintenance it does for the owners corporation.

Section 106 (1) of the Strata Schemes Management Act 2015 No 50 states An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

Comments from the judge in the case Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 relating this legislation may provide some guidance on timeframe to repair “That duty is not one to use reasonable care to maintain and keep in good repair the common property, nor one to use best endeavours to do so, nor one to take reasonable steps to do so, but a strict duty to maintain and keep in repair. The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists”

For issues relating to maintenance of “lot owners” property, legalisation does not provide the same obligation on maintenance as section 106 (1) does for the owners corporation.

If you do not feel the actions of the owners corporation or lot owner (depending on who has responsibility to maintain the balcony) are reasonable, you may wish to refer to the Fair Trading website on resolving disputes: NSW Fair Trading

From an insurance perspective, water damage claims are our most contested claims with insurers because there is often a component of maintenance and also repair of water damage.

Insurers cover the cost to repair water damage but generally exclude repairs costs related to fixing and finding the leak, as it generally considered the owners/owners corporation responsibility to maintain their property and such repairs relate to general maintenance or wear and tear.

The insurer has exclusions such as lack of maintenance, rust, oxidation, wear & tear, corrosion, gradual deterioration, developing flaws, building defects etc.

Generally, leaks are only covered if the leak is caused from “sudden and accidental damage” such as impact damage, storm damage etc. However, the consequential water damage (to insurable property) can be considered on a case by case basis – most policies will exclude damage caused by non-rectification of a known property defect, error or omission. Long term water damage or rot may also be something that the insurer does not cover depending on the circumstances as strata policies are designed to cover sudden and accidental damage.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances and the specific coverage afforded under their policy wording. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #423.

Question: Due to recent storm events there was water ingress from common areas into my apartment, damaging floorboards. What is the process to fix the damage?

Due to recent storm events (driving rain and winds), there was water ingress from common areas (under the front door) into my apartment damaging floorboards. My front door is located on an outside walkway that is a common area as it provides access to 4 units.

I’ve contacted my strata managers various times within the last week (since discovering the damage), however, I’m still waiting for their response and action to the matter.

I was advised they need to organise a plumber to inspect if there are any burst pipes and a roofer to check for leaks. As part of my enquiries and various phone calls and email, I kept advising that no pipes or leaks are visible as there is no water damage or continued water seepage from pipes or on the ceiling.

Can you please advise the process moving forward to fix the damage? and if Strata or the building insurance should repay and pay for the damage as the front door does not provide a full seal.

Answer: In the case of water damage claims, generally insurers will require the cause of the leak to be repaired before repairs commence for consequential water damage.

In the case of water damage claims, generally insurers will require the cause of the leak to be repaired before repairs commence for consequential water damage.

If the claim is as straight forward as the questioner is suggesting, usually an explanation of the event (i.e. water ingress under the front door from heavy rains) and an invoice showing the door seal has been put on the door should be sufficient for a claim to proceed. However, if the source of the leak is unknown or there is concern the leaks will continue, action should be taken to appoint an appropriate trades person to address why water is entering the building – this can include engaging specialist leak detector companies.

Once the leak issue is addressed, the lot owner needs to understand which policy provides cover between the strata insurance & lot owners contents/landlords insurance.

If the flooring is a temporary or floating floor, it is only covered by strata if the policy specifically covers floating floors. The Strata Management Act does not require an owners corporation to insure temporary/floating floors, however some insurers automatically provide cover or have an optional benefit for floating floors. If it is not covered by the strata insurance policy, the lot owner will need to claim on their contents/landlords insurance policy.

If you are claiming on the strata policy this can be done by claiming through the strata manager, broker or insurer. If it is a contents/landlords claim then the owner will need to contact their insurer.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

Question: Can the owners corporation fix my neighbour’s leaking verandah?

My mother’s apartment has a flat above her whose verandah area is partly over her lounge and for the last year has been suffering due to the upstairs verandah leaking through her roof.

They are new owners who recently renovated the verandah and since then it has leaked.

The Strata company don’t appear to be doing anything, supposedly some repairs were done recently but the roof still leaks.

How can get things moving to resolve the leak? My Mother is about to return home after being in hospital and is absolutely devastated that nothing has been done. She is 85 and this is her home, which is becoming unliveable!

Answer: While the exact cause of the balcony leakage is unknown, this is likely an issue with the common property.

The owners corporation must properly maintain and keep in a state of good and serviceable report the common property in accordance with section 106 of the Strata Schemes Management Act 2015 (the Act). While the exact cause of the balcony leakage is unknown, this is likely an issue with the common property.

In addition, the provisions of the by-laws and building management statement, if any, should also be taken into account as they may impose more specific requirements in addition to the general requirements under the Act.

Who has responsibility for the ongoing maintenance of a renovated balcony/verandah?

It is unclear what kind of renovation has occurred and whether prior approval by the owners corporation is required (and obtained).

If there was a special resolution approving the renovation under section 108 of the Act that specifies that the ongoing maintenance of the balcony after its renovation is to be the responsibility of the owner, instead of the owners corporation, then it is up to your neighbour to fix the leakage.

However the more likely scenario is that the renovations were completed either without owners corporation approval, or with a special by-law registered to the effect that the owner of the lot undertaking renovation work indemnifies the owners corporation for any liabilities arising from the renovation. If that is the case, the primary person responsible for fixing the issue, as far as all other owners in the strata scheme are concerned, would still be the owners corporation.

Consequences of the owners corporation not fulfilling their duty to maintain and repair common property

According to section 106 of the Act, an owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation. It may, however, be difficult to quantify the loss associated with the general unpleasantness of the water leakage and the consequent limited use/enjoyment of part of the units.

You may also consider joining the strata managing agent to any claim that you may have against the owners corporation if the managing agent has not fulfilled its duties.

Next steps

1. Review previous minutes for general meetings to find out if there is any special by-law that was proposed for your neighbour’s renovated verandah.


2. If there is no by-law that negates the owners corporation’s obligations then write to the strata manager and the secretary requesting their immediate action to fix the leakage and/or propose a motion for an upcoming general meeting for the issue to be attended to and that the contract with the current strata manager not to be renewed and another strata manager appointed.


3. If the matter remains unresolved, you can lodge an application for mediation with NSW Fair Trading or start proceedings in NSW Civil and Administrative Tribunal.

Yuhao Gu Omega Legal E: info@omegalegal.com.au P: 0402 990 108

This post appears in the August 2020 edition of The NSW Strata Magazine.

Question: Water has been leaking from our front yard into the car park below for a few years without resolution. Must I use the strata’s expensive contractor for the basement waterproofing? How do I get the committee to act?

I am a committee member in a complex that contains 28 townhouses. Our front yard is common property and directly under this common property is our car space in the garage.

We’ve had a leaking problem for a few years. All units have paid a lot of special levies a few years ago to get this leakage problem fixed. The problem has been mostly fixed except in our area and a couple of other spots because the previous contractor left without fully finishing the basement waterproofing. Our leak is the only one causing water to directly run onto our car.

The contractor came out and waterproofed part of our neighbour’s front yard instead of ours. The error occurred because of mismanagement from strata. Plus, our strata manager keeps changing, so there is no consistency with communication.

With some difficulties, I finally managed to get our strata manager to organise someone to look at our basement waterproofing again. The contractor has come back with a quote that is ridiculously expensive for waterproofing a very small area. The new strata manager sent this costly quote to the committee. No-one has responded to the quote. The leaking has been getting worse because it has not been rectified for a few years and I am really concerned it may cause even more problems if we don’t fix it soon.

• Can I get another quote from another contractor or do I have to stick with the one that Strata sent through?
• Does Strata have the right to force us to use their delegated contractors? Would they argue that only their contractors can do the job?
• What can I do if none of the committee members responds?
• Does committee/strata have the obligation/responsibilities to repair common property ie waterproofing our front yard? What if one of the committee members object to this?
• What options do I have to get Strata/Committee to carry out the repairs?

Answer: You may get another quote from another contractor, however, make sure that the quote covers exactly the same scope of work so that any comparison in cost is viable.

Yes, you may get another quote from another basement waterproofing contractor, however, make sure that the quote covers exactly the same scope of work so that any comparison in cost is viable.

The strata committee should pass a resolution to obtain more competitive quotes.

Your Strata Manager’s track history of fixing the problem leaves a bit to be desired. With such a large and complex job, consider obtaining a consultant to determine the source of the water egress who can then prepare a scope of works to put out to tender. This will ensure that the job gets done and that any price comparisons are like for like.

If you can obtain some support, a committee meeting must be convened if at least one-third of the committee members so request. Alternatively, you may make a qualified request (with not less than ¼ of the unit entitlements) to convene a general meeting of the owners corporation.

The Owners Corporation has a strict duty to repair and maintain the common property. As for your waterproofing, it must be determined whether it is lot or common property. Generally, it will be common property but you will need to review the strata plan for any notations and see if any by-laws displace the general position.

If the failure to repair relates to common property, this is a breach of the Owners Corporation’s statutory duty. Remedies include seeking compulsory appointment of a managing agent to carry out such duties, however, you will need to ensure that the failure relates to common property. You may also seek to recover damages for breach of this statutory duty.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #211.

Question: What steps do we take to organise a leaky roof repair? What if some owners refuse to pay?

I purchased into a medium sized strata scheme earlier in the year. This is our first experience living in strata. I am now the chairperson of the scheme.

Our roof leaks and is in need of repair. Is a leaky roof repair something that usually falls to the committee, or in most circumstances would the strata manager handle the roof repair? There is hardly any money in the sinking fund, so lot owners will have to contribute. How do we go about raising the amount and what do we do about the lot owners who refuse to put their hand in their pocket?

I guess if there is a recalcitrant owner who doesn’t pay, the Strata Manager should sue the owner and if after all the other following proceedings no payment is made the owner would be subject to bankruptcy and the unit sold.

Is it possible to provide a step by step plan of how we can accomplish the leaky roof repair? I’m at a loss as to how we proceed.

Answer: The roof repairs will be common property and a repair that jointly the Executive Committee and the appointed Strata Manager would arrange for its repair.

The roof repairs will be common property and a repair that jointly the Executive Committee and the appointed Strata Manager would arrange for its repair. Subject to the delegated duties of the Strata Manager, generally Repairs and Maintenance such as a leaky roof repair fall under the agreed services of a Strata Manager.

The Strata Manager will generally assist with the process of sourcing quotes, making the necessary enquiry etc. on behalf of the committee, however, the decisions and instructions will remain the responsibility of the committee and owners.

First, an expert should be engaged to inspect and determine the scope of repairs required to address the issues with the roof, upon a scope being finalised and agreed to, tenders for repairs should than be obtained.

Once tenders are obtained, a meeting of the Owners Corporation should be held to consider the tenders and raise funds if there isn’t enough surplus in the sinking fund. Following the approval and raising of funds, work can commence on the leaky roof repair.

The raising of funds via a special levy can only be considered at a general meeting. 50% of owners present and entitled to vote will need to be in favour of a special levy for the motion to be passed. Therefore both the special levy and tenders should be referred to a general meeting as each motion will be subject to another, i.e. funds are required only if the works are approved.

If the special levy and approval of works is not passed by owners, and the roof repairs are essential to maintain the common property, the Owners Corporation will then be in breach of its obligations under Section 106 of the Strata Schemes Management Act 2015, which states:

106 Duty of owners corporation to maintain and repair property

1. An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.


2. An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.


3. This section does not apply to a particular item of property if the owners corporation determines by special resolution that:


1. it is inappropriate to maintain, renew, replace or repair the property, and


2. its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

The process for debt recovery is the same for all levy types, ordinary and special levies.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #114.

Question: Why am I required to fund my neighbour’s leaky roof repair?

I am in a strata with 12 units. The front 8 units are at least 25 years older than the back 4 units, which I own one of.

Currently we have the situation where the front 8 need their roof replaced (the front 8 are all attached, the back four are completely separate to them) and of course, there is not enough in the sinking fund to cover this. So the strata have called for all owners to put in $3000 to top up the sinking fund to cover the leaky roof repair expense.

We are currently getting this organised, but it has been frustrating me that the back four owners have to pay for the leaky roof repair when we have nothing to do with this section of the strata scheme. Our roof is not being touched and we get no benefit from this.

I certainly agree that their roof needs replacing and I don’t want to stand in the way of them getting this done, but selfishly, I don’t see why I am required to pay for this.

What are the usual strata rules in this scenario, where there is a significant age difference between units, and certain units need building works, and others do not?

Answer: If all lots are under one strata scheme, all owners of that strata scheme will be responsible to contribute to the common property repairs.

If all 12 lots, i.e. the 8 front units and 4 back units are under one strata scheme, then all owners of that strata scheme will be responsible to contribute to the common property repairs.

The Strata Scheme Management Act requires the Owners Corporation under 106 to repair and maintain common property. It is not based on if all owners use the area or benefit from the subject roof space but where an area is deemed to be common property the owners corporation are liable to repair and maintain.

The roof is generally common property unless there is a special bylaw transferring responsibility back to a lot owner(s) or if the Owners Corporation have especially resolved to divest of their responsibility pursuant to Section 106 (3) of the Strata Schemes Management Act 2015 wherein the Owners Corporation have determined that it is inappropriate for the Owners Corporation to maintain, renew or replace or repair or the roof areas.

Therefore, in summary, the Special levy if raised to cover the leaky roof repair requires consent by the majority of owners at a general meeting, the total amount will be levied to each owner according to the unit entailments. Your contribution will be calculated based on your unit entitlement.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

Question: Who is responsible for contractor’s added costs when site access is deliberately limited?

Who is responsible for contractors added costs when site access is deliberately limited?

I have been advised by a contractor that access to one owner’s lot has repeated been restricted as the residents leave the premises without making access arrangements.

All other residents leave keys with neighbours so that tradesmen can make regular calls during ongoing balcony renovations.

The inefficiencies resulting from restricted site access are costing the contractors time & money and they have advised that random access restrictions will incur additional costs for our Owners Corporation.

Can the SC insist that the rogue owner solely responsible for costly work delays be held individually responsible for reimbursing the Owners Corporation for additional expenses incurred as a direct consequence of their actions.

Answer: The owners corporation could seek an order for access ongoing. Breaches of this can lead to penalties.

Ultimately, the owners corporation could seek an order for access ongoing (and breaches of this can lead to penalties). This will incur time and cost in going to the tribunal.

The owner needs to be put on notice immediately as to the issues they are causing – I would then suggest a fee proposal is sought from a lawyer regarding the access issues and that should the issues continue, the scheme should take advice in this regard. Ultimately, if the contractor is already onsite you don’t want to inflame the owner such that access is denied completely (which may cause all work to stop), however the owner/s need to understand that they are part of a common community and all need to go their bit in assisting the owners corporation to conduct works and anything else it needs to do which necessitate access within lots.

122 Power of owners corporation to enter property in order to carry out work

1. An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work—


1. work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),


2. An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.

4. In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.


5. A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. (Maximum penalty—5 penalty units).


6. An 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 work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #403.

Question: In our strata scheme, there are 25 unit walk ups and 12 units in the tower. The tower has a lift, only servicing lot owners who live in that building. Do all lot owners have to pay for maintenance of the lift or is it solely the responsibility of those units that have use of it?

Answer: You should refer the question to your strata manager, however – the strata plan or by-laws may contain information which isolates the costs of the lift upkeep only to those owners that have the benefit of it.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #398.

Question: A resident has repeatedly requested the committee repair a known trip hazard that hasn’t been fixed for years. What are the insurance implications around known hazards that the committee will not address?

Answer: You need to first to receive confirmation from a qualified person that the trip hazard exists.

With trip hazards, firstly you need to establish if someone qualified has given advice saying that this is a trip hazard and the committee has not addressed that specific issue.

If that’s the case, then when the policy comes due for renewal, you do have to disclose all things relevant to the insurers decision to insure the property. If the trip hazard has just been identified by an owner, but there isn’t a professional saying that it should be remedied, it wouldn’t necessarily be an item that would need to be disclosed.

Aside from what does and doesn’t need to be disclosed to the insurer, if there is a claim and there is evidence by the injured person to show that the body corporate or owners corporations were advised of the trip hazard and didn’t take action, it will increase their culpability at the time of the claim. Of course, that then has a flow on impact in that it increases the cost of the claim and impacts your claims history more severely.

The idea is that it’s not necessarily just about what you do and don’t have to disclose with the insurer. Risk minimisation is also recommended to assist in reducing your claims history when you are seeking quotes for insurance.

Regarding the other question from NSW which was related as well: A stair carpet is threadbare and uneven in parts. Does this compromise our insurance? This would fall under the same thing.

Committees should take steps to minimise claims but you don’t have to disclose every single potential hazard to the insurer, just the major hazards that you think they should know about when taking the policy out. But you should take action to minimise losses because less claims will definitely help you when you’re seeking quotes for insurance.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #391.

Question: Our committee is aware of safety hazards and incidences have occurred but they refuse to spend money to fix these items. What can be done when the committee won’t spend on necessary maintenance?

What can we do when the committee won’t spend on necessary maintenance?

Our committee is aware of quite a few items which require urgent attention in our building. The situation is so bad it is a safety hazard. A work health and safety audit was finally done. It has been 6 years since the last audit. The audit highlighted a known trip hazard. It states the possible danger is on many floors in the building and recommends it be repaired or replaced in the short term.

Residents have tripped on this hazard. We have elder people living in the building. There are other major repairs that are also required.

The Committee will not act despite the fact that we have a very very large sum of money in our fund.

What sort of liability is the building opening themselves up to by not getting this work done?

Answer: The strata committee needs to turn their attention towards the idea of ‘lets you make best use of this money. Let’s improve our buildings.’

I’ve seen this before in buildings. We took over a building two years ago that had a million dollars in their fund, it’s a high profile building and they were able to raise the funds but they just weren’t spending them. This is due to governance and decision making issues. What that often means is that the people on the strata committee for some reason aren’t able to spend the money because they haven’t been able to either get organised or turn their attention and hearts towards the idea of ‘lets you make best use of this money. Let’s improve our buildings.’

The strata committee would need to take a good look at the way they’re doing business because it is probably problematic, and they need to put some more attention towards that. So that’s the awkward bit – a necessary conversation for that building.

The first you should do would be to write to the strata manager and ask them to attend to this problem. It doesn’t have to be a thesis just a straightforward email, ‘we wish to write and formally put in a request to repair this item on common property. It’s on these levels ___. Can you please arrange for this to take place? Please raise this from the committee and I’ll get a formal reply to them’.

If the Strata Manager said no, the next thing I would do is I would personally get a couple of quotes to do the repairs and put a motion on the next AGM agenda. Any owner can put a motion on the AGM agenda and the motion I would put would be to accept one of the two quotes.

If this gets voted down, apply to Fair Trading New South Wales for an application to mediation which now costs nothing. Include the history, the work health and safety report, the quotes, the AGM minutes the AGM agenda and what was discussed and what you want to achieve, which is: get this item fixed. I would be surprised if that wasn’t successful.

Regarding liability for not getting the work done, you have insurance. I hate it when I hear buildings say, ‘Oh, we’ve got the public liability insurance don’t worry about it’. Actually, how about stepping back. We do not want anyone to get hurt in our buildings, we want to look after our tenants and our visitors and our tradespeople. You do have insurance, but there is always liability in strata buildings and in litigation the net goes out. The strata manager gets called in, the committee gets called in, the building gets called in, and the last thing you want to go through is litigation because someone’s broken a bone or really hurt themselves and is now impaired and you would have to sleep at night with that. Anything to do with safety is just so important.

Nikki: Like to say it’s not just about the liability insurance is it. It’s the people that are actually living in the building.

If it’s a safety hazard that’s been picked up six years ago, that’s a problem that should be addressed.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au P: 02 9879 3547

This post appears in Strata News #384.

Question: In our commercial unit, there have been leaks for many years and we can’t seem to get them fixed. What action can I take to get repairs carried out as the condition of the building is ruining our office and some of our stock?

We are the largest unit in a commercial complex so pay the highest levies. There have been some leaks in the unit for many years now and they never seem to be fixed. A couple of contractors have attended but the building leaks every time it rains. They have said they have done everything they can do but it is ruining our office and some of our stock.

What action can I take to put them on notice/ get this resolved as I am extremely frustrated with their lack of care?

Answer: I would have a look at the agreement with the owner of the building including any terms and conditions entered into.

I would have a look at the agreement with the owner of the building including any terms and conditions entered into. I would remind them of their obligations under the agreement. Without having seen the agreement my answer is limited. It is unclear whether you are a tenant. If you are, the terms of the lease will have specific clauses in relation to the matters you have raised. If necessary a report can be prepared for you to rely on in relation to the defects and you have recourse through the Tribunal or court.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #383.

Question: Is it allowable/acceptable to get in touch directly with strata manager for unit repairs to common property, rather than go through the executive committee?

Answer: Yes, because in all likelihood, before the strata manager issues a work order for the repairs (subject to the extent of repairs), the strata manager will seek approval from the strata committee to determine if the matter is a proper expense of the owners corporation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #290.

Question: The garden directly outside my apartment never gets maintained as I’m the only one affected by it. How can I ensure garden maintenance is scheduled and regular?

I live in an apartment in a small scheme. In the block I live in, we have a walkway that has a well-established garden on either side of the path. In front of and beside my unit is a well establish hedge to block the view of the garbage area.

None of the owners corporation members live in the block of units with a garden or hedge, so I find these areas are just left to grow wild unless I ask for the hedge to be trimmed. Every time, I have to ring and complained and then it takes a while to have the job done.

I get the feeling that unless the garden maintenance is near their apartment and directly affects them, they don’t care. Knowing that the garden and hedge need maintenance at less twice a year, it makes sense to me for the job to be scheduled.

Why doesn’t the garden maintenance outside my apartment happen without me asking?

Answer: The scheme has a strict obligation to maintain all aspects of common property. Follow our 4 steps to find out how to make sure this is regularly scheduled.

The scheme has a strict obligation to maintain all aspects of common property – here is what Judge Brereton said a long time ago.

“….4 The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists. Thus the body corporate is obliged not only to attend to cases where there is a malfunction but also to take preventative measures to ensure that there not be a malfunction. The duty extends to require remediation of defects in the original construction of the common property. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. 5 It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty…..”

The section is now Section 106 under the new legislation.

I should think the easy way to handle this is to raise at the AGM:

1. when you are discussing the budget, get the cost allocated in the fundraising


2. get the committee meeting after the AGM to commit and instruct the manager to organise it. Work out the dates in the year eg April and November when the maintenance needs to be done so the manager diarises this and then it’s locked in and minuted


3. If it is still not done, you know it is an issue with the manager, not the committee and you can raise this as a performance matter about the strata manager (and bring the oversight to the attention of the committee) at the next meeting. They’ll make sure they do it in the future.


4. If it doesn’t get up at the meeting at budget level (and the committee meeting after the AGM to approve the frequency and dates and instruct the manager) then write to the manager to put on the meeting agenda for next year. They are legally obligated to put it on or you can go to Fair Trading (which starts with mediation) and this may be the reality check they need to get on with it.

Karina Heinz Progressive Strata Services E: manager@prostrata.com.au P: 02 9389 9599

This post appears in Strata News #264.

Question: Our Owners Corporation collects levies but there is a failure to maintain and repair common property. What can I do to get things back on track?

I pay a levy to our strata and believe that this includes maintaining the grounds, lighting, mowing of the lawns/gardens etc. This has not been done for months. I’ve contacted them and they are not interested in doing anything.

What can I do or who can I contact about this?

Answer: You should put the Strata Managing Agent on notice that the Owners Corporation is in breach of its duties.

All the items to which you refer are part of the Owners Corporation’s repair and maintenance duties pursuant to Strata Schemes Management Act 2015 – Sect 106 Duty of owners corporation to maintain and repair common property.

You should put the Strata Managing Agent on notice that the Owners Corporation is in breach of its duties and that the disrepair of the common property is devaluing your lot.

If action is not taken and the Owners Corporation persists in neglecting to properly maintain and repair common property, you could obtain orders from the NSW Civil and Administrative Tribunal (NCAT) that it do so (after mediation if the Owners Corporation elects to attend) and depending on the severity of neglect, you might be able to appoint a compulsory managing agent for 12 months to bring the building up to a state of proper repair.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #115.

Question: Should the Strata Manager Advise the Owners Corporation to Upkeep and Repair Common Property?

An item on our Agenda at our recent AGM has caused me concern. This item also had been on our AGM meetings Agenda for the past five years or more, and not approved to be repaired by the Owners corporation each time. The repair is always deemed “Not urgent”.

The item:

The flooding of the rear yard of the units – caused by a block drain – or most likely a broken pipe – that floods the rear yard after heavy rain.

Once against the Owners Corporation all agreed to put this item aside and not repair common property, saying it isn’t urgent!….. Reason given – lack of funds.

Is it wrong for the Strata Manager to not advise the Owners Corporation that they are responsible for repair common property? Shouldn’t the Strata Manager suggest a special levy be called to pay for the repair?

This small unit block is a heritage building and registered as an item in the local council heritage registry.

Answer: The role of the Strata Managing Agent is to represent the Owners Corporation

The role of the Strata Managing Agent is to represent the Owners Corporation. Some agents are appointed with limited delegation that would determine the extent of their duties.

In the majority of management, the Strata Managing Agent would have it noted that they can give owners general legislative advice. The Managing Agent takes instructions from the Executive Committee. The Executive Committee is like the Board of Directors of a company and the Manager is like a CEO.

The Owners Corporation must comply with Strata Schemes Management Act 2015 – Sect 106 Duty of owners corporation to maintain and repair the property and other similar sections in other states. This section places an absolute duty on the Owners Corporation to maintain and repair common property unless the Owners Corporation passes a resolution to exclude the Strata Plan from this duty.

The Managing Agent is doing the right thing by including the item on the agenda, but it is the decision of the Owners Corporation to pass the works to repair common property.

If an owner is not happy with a resolution of the Owners Corporation then the lot owner can:

1. Apply for Mediation through Fair Trading

if no agreement can be made at Mediation then the owner can

2. Apply for an Adjudicator’s Order under section 140 of the Strata and Community Schemes – NCAT (NSW Civil Administrative Tribunal) or other similar Tribunals in other states.

Jan Browne Bridge Strata E: jan@bridgestrata.com.au P: 02 6109 7700

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Question: Our apartment is having rising damp repairs carried out. Are we required to contribute to the cost to repair and maintain common property?

I am an owner of a unit in a strata building. There are approximately 60 units in the building of which 2 units are on ground level.

These 2 units are affected by rising damp. The cause of the rising damp has been determined by 2 independent structural engineers to have been caused by incorrect installation of damp causing. The build is about 35 years old and in 2003 was converted from hotel accommodation to residential units.

The executive committee of the body corporate has accepted responsibility and wishes to complete some structural repairs to maintain common property.

The repairs that they will be conducting will be to apply a moister barrier to the inside walls of the unit to a height of about 1 meter. The quote obtain indicates that we have to vacate the unit for a period of 7-8 weeks while this work is undertaken.

The executive committee have advised that there will pay for this work to maintain common property and will repaint the part of the wall of the unit to the height of the repair.

However, they have advised that:

• They will only re-render the wall to the high of the membrane and if the join is noticeable it will be at our cost to have the whole wall rendered if wish to have a smooth wall.


• That they will only paint to the repair line and if the paint does not match (which it is unlikely to do) we will have to pay for the cost to have the rest of the wall painted.


• That the cost of the temporary accommodation while the repair to the building is being undertaken will not be covered by them.

I feel that, as the work is being completed to correct a building defect (as described by the structural engineer), I expect the unit be returned in the same condition it is handed over in (smooth walls and an even paint job).

In regards to the cost of temporary accommodation, it is my understanding that all owners in the building are responsible for the cost of repairs to the building structure. As such I would think the temporary accommodation cost should also be covered, as the repair cannot be conducted unless we vacate our unit for the required period.

Answer: The Owners Corporation has a statutory obligation to repair and maintain common property

This query relates to the duty of the Owners Corporation to “properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the Owners Corporation” in accordance with Section 106 of the Strata Schemes Management Act 2015.

The Strata Schemes Management Act 2015 came into force on 30 November 2016. Prior to that, the duty was found at Section 62 of the Strata Schemes Management Act 1996.

Both the old and the new sections use the same language to express the duty to “properly maintain and keep in a state of good and serviceable repair the common property”.

In addition, both old and the new sections provide that: “An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.”

When it comes to the sufficiency of the intended scope of work and whether it will suffice to meet the duty which the legislation imposes, one should focus in the key phrases “maintain and keep” in respect of the common property and “renew and replace” in respect of any fixtures or fittings comprised in the common property.

There is ample case law to support the proposition that the Owners Corporation cannot adopt a watered down or lesser scope of works if to do so would mean that the common property is not being properly maintained and kept in a state of good and serviceable repair. The Owners Corporation must replace like with like.

On the issue of paying for temporary accommodation, Section 106(5) provides: “An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation”.

This section was introduced with a view to overturning the decision in the matter of The Owners – Strata Plan No. 50276 v Thoo (2013) NSWCA 270. In that case, which dealt with Section 62 as it then was, the Court of Appeal decided that a breach of the duty to properly maintain and keep in a state of good and serviceable repair the common property did not give rise to claim for damages to a lot owner.

Section 106(5) puts the entitlement of an owner to seek damages for any loss suffered due to a breach of the duty on a statutory footing and opens the door for claims in respect of damage to personal property, loss of rental and, of course, the cost of alternative accommodation.

However, based on the actual wording of the section, there may be some room for debate in cases where the Owners Corporation is taking steps to comply with the Act. The section says an owner can recover a loss suffered as a result of the owners corporation failing to comply with its duty. Even though it would seem to lead to a somewhat absurd outcome, in this case, the section does not say you can recover loss suffered as a result of the Owners Corporation undertaking works to comply with the duty imposed.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

Question: Some common walls in our building have cracks. What procedure should our Executive Committee follow to repair these common wall cracks?

We have a number of units where there are small common wall cracks (not all) apparently due to the building settling.

The Strata rules indicate that common walls are a Body Corporate responsibility – The Executive Committee have indicated that they will pay for the remedial work required for one of the owners who has claimed repair work.

Should the Executive Committee now notify all owners of this situation to allow them to have remedial work done if required? – What about owners who have already had work done can they claim retrospectively?

What is the Executive Committee responsibility if it does or does not notify all owners?

Answer: In the interest of accountability it’s important that the Executive Committee alerts all people on the property of potential work.

In the interest of accountability, it’s important that the Executive Committee alerts all people on the property of potential work. This is so that everyone knows exactly what’s going on the property and no one makes a fuss, later on, saying that they weren’t informed etc.

Other owners can only claim money back if any work done to the walls was done out of necessity, not only if they had aesthetic changes. Ideally, owners should only be allowed to make changes to common property with the permission of the Body Corporate.

Basically, if the problem is on common property then it is the Body Corporate’s responsibility and the Executive Committee should notify everyone. If the Executive Committee doesn’t do this and a problem occurs later down the track, the Body Corporate will be held liable for failing to go through all the reasonably practicable steps to mitigate risk, especially when they know that risk may be present.

Not knowing the age of the building in question below I have given a couple of examples of how settling can occur. Depending on the site preparation and the type of soil e.g. clay, stability could continue to be affected for several years after that. Cracking defects could fall into two categories, category 1 defect usually means:

1. Allow water penetration into a building


2. Adversely affect the health and/or safety of the occupants


3. Adversely affect the structural adequacy of the building


4. Adversely affect the serviceability, performance, or functional use of the building

Examples:

• Leaks in roofs, showers, doors, windows, walls


• Faulty or inadequate flashing


• Footing movement – subsidence or settlement


• Fretting or spalling masonry


• Extensive cracking or distortion of wall or ceiling beyond normal frame settlement, shrinkage or thermal movement


• Extensive cracking or dislodgment of floor or wall tiles


• Defective, incomplete or inadequate termite protection methods


• Inadequate provision for discharge of roof water


• Incorrect or inadequate site drainage

Category 2 defects generally result from a failure of the contractor to meet reasonable standards of construction and finish or is a kind which commonly occurs during the “settling in” period of a new building.

Examples:

• Sticking doors or windows


• Cracked plasterboard joints, cornice joints


• Poor finish detail

Peter Berney National Business Development Manager Solutions in Engineering E: peter@solutionsinengineering.com P: 1300 136 036

This post on appears in Strata News #126.

Question: A lot owner’s internal walls have non-structural common wall cracks from slight building settlement. Where does the responsibility of owners corporation fall to repair the walls? Are they responsible at all?

We have a unit owner who has reported common wall cracks in their walls from slight building settlement. It has been determined that these cracks are not a structural issue but limited to their apartment’s internal cement render.

As all walls are common property I assume that the cost of their cosmetic repair is our body corporate’s responsibility. It is apparent that once the common wall cracks are filled and sandpapered flat, the walls will require repainting. All costs associated with painting internal walls are, I understand, to be the sole responsibility of the lot owner.

Can our responsibility’s limits be confirmed so that the unit owner appreciates the bounds of the responsibility of owners corporation for repairs?

Answer: I would suggest the owners corporation take no further action.

If the cracking has been assessed as being of cosmetic / minor nature by a professional you trust, I would suggest the owners corporation take no further action. If the owner is concerned with the common wall cracks and how it looks, they can simply patch and paint the wall at their cost.

Minor cracking is very normal in apartments. The NSW Fair Trading guide to standards and tolerance is a good starting point can be found here.

Rod Smith The Strata Collective E: rsmith@thestratacollective.com.au p: 02 9879 3547

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

This post appears in Strata News #185.

Question: Is it possible to access a unit if the owner has not granted permission but the tenant has? This is for the sake of a dye test and roofing repairs.

Answer: The occupier needs to give his consent, therefore, the committee may enter the lot because it is the occupier’s consent that is determinative.

The access provision of the Strata Schemes Management Act, 2015 (NSW) are drafted in terms of the “occupier” giving access.

The definition of “occupier” of a lot means a person in lawful occupation of the lot. Therefore, in our view, the occupier may be the owner-occupier or tenant, so, in your case, the occupier needs to give his consent, therefore, the committee may enter the lot because it is the occupier’s consent that is determinative. Further, the Owner must not “obstruct” or “hinder” the owners corporation and such obstruction or hindrance attracts penalties.

122 Power of owners corporation to enter property in order to carry out work

1. An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
   
   
   1. work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
   
   
   2. work required to be carried out by the owners corporation by a notice given to it by a public authority,
   
   
   3. work required or authorised to be carried out by the owners corporation by an order under this Act.


2. An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.


3. In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.


4. In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.


5. A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. Maximum penalty: 5 penalty units.


6. An 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 work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #431.

Question: Our strata is trying to charge us for the repair of the balcony. Is this part of the common property? We feel bullied and are not sure how to proceed.

We are two senior sisters who own a unit. We have bought it with an enclosed balcony. In our small strata scheme, approximately half of the balconies are enclosed. We all have the Council approval for these enclosed balconies.

For the last few years, there has been a lot of arguing about the bad, unsafe state of most of the balconies, not only those enclosed.

Two enclosed balconies (whose owners are on the strata committee) blew away in a storm and the Strata insurance replaced them.

Now our strata want to pass a bylaw saying that all the balconies that need replacement have to be repaired. Strata will pay for all of the open balconies and the owners of the enclosed balconies must pay for theirs, approximately $25,000 each!

Do we have to vote and sign for this bylaw as we feel it is unfair!

1. We had paid for our enclosed balcony after receiving approval from Council to enclose it. There is no existing bylaw saying that these enclosed balconies are not part of our strata!


2. Strata want to replace the balconies, as they did not do ongoing maintenance to the building previously. So if they are going to demolish the open balcony automatically, strata will demolish our enclosed balcony, so Strata has to replace it.


3. The two enclosed balconies damaged by a storm were replaced by the Strata insurance, so Strata is responsible for the enclosed balconies!

We are being bullied by the Strata manager, some Body Corporate members (especially the ones who had their balconies replaced by insurance) and even other owners who have open balconies! Please, where do we stand? We are very stressed, especially at our age. Please advise us on this very complex matter.

Answer: Section 106 of the Strata Schemes Management Act 2015 defines quite clearly the Owners Corporation’s responsibility to repair and maintain common property.

This topic throws up a couple of curve balls and reminds me of a legal precedent that has been set on a similar matter.

Issue 1 – Proper Approval/Enduring Rights for the Alteration

The first issue that arises is, though the sisters and others who have enclosed balconies have Council Approval, do they have the proper consent of the Owners Corporation for enclosing the balconies?

In NSW under the previous and current Acts, to enclose a balcony an Owner would need to seek the consent of the owners corporation. This may have been done previously simply by the written consent of the Executive Committee but should have been done at the time by a Special Resolution and Exclusive Use by-law.

Without the Exclusive Use by-law having been passed and registered on title, the owner may not have enduring rights to keep the structure enclosing the balcony. Further, the By-law would define who is responsible for ongoing maintenance of the enclosure and the common property that it is attached to and without a By-law being passed and registered the responsibility for ongoing maintenance falls on the Owners Corporation.

It would be prudent for the owners of the lots with enclosed balconies to seek the By-law to permit the installation of the structure to enclose the balconies, and to provide for the ongoing maintenance of the enclosure that they installed, and the attachment to the common property affected by the installation. This by-law could be passed and registered with somewhat a retrospective approval. This by-law is of benefit to owners with the enclosure and the Owners Corporation.

Without the By-law being passed and registered, it is possible that with a “changing of the guard” of the owners corporation/strata committee, an owner or even the Owners Corporation could seek an order of NCAT to seek that the enclosures be removed. Based on past precedent, they may be successful in obtaining this order, but the Owners Corporation may end up paying for the removal and make good of common property.

Issue 2 – Works to the Balconies

It would be good to clarify what works are required to the balconies. For example, is it that the original floor/structure of the balcony needs replacing, the balustrade needs repair or replacement, or the balcony door/wall/window structure that is now needing work? Also, what was the date of registration of the Strata Plan? If the strata plan was registered prior to 1 July 1974, the lot owners are responsible for the balcony door/wall/window structure separating the balcony from the rest of the apartment.

Section 106 of the Strata Schemes Management Act 2015 defines quite clearly the Owners Corporation’s responsibility to repair and maintain common property. If the works relate to the balcony slab/floor or the balustrades, it is clear that the Owners Corporation is responsible for these works whether or not the balconies are enclosed and especially as no By-law has previously been passed. Further to this, it could be argued that in doing the works to the balconies, given the current position where there is no By-law in place, the Owners Corporation may have an obligation to reinstate the enclosure of the balcony fitted by a number of lot owners.

If the Owners Corporation were to seek to determine that some balconies were not the Owners Corporation’s responsibility to repair and maintain, there would need to be a Special Resolution passed at a General Meeting to determine this and most importantly they would need to resolve.

“(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.”

Issue 3 – Insurance Obligations

The Owners Corporation has an obligation to insure Fixtures and Fittings, and ordinarily, this will be included in a Strata Insurance policy. Section 161 of the Act covers the details clearly as to what parts of the building are to be covered by a damage policy. But this in no way defines who has responsibility for ongoing repair and maintenance. So it is not unusual that the Owners Corporation’s insurance policy has responded to the previous storm damage claim.

Best Outcome for All

Given all of the above, it would be best for the Owners Corporation to tidy up their act and work cohesively as a community. The best outcome will be for the Owners Corporation to accept their ongoing responsibility for the maintenance of the common property components of the balconies, and that the owners with enclosed balconies obtain and agree to the wording, passing and registration of the Exclusive Use By-law, giving them the rights to keep the balcony enclosure and responsibility to maintain their structure.

Happy to discuss this response further and understand it is lengthy.

Luke Derwent Wellman Strata E: luke@wellmanstrata.com.au P: 02 8065 6575

This post appears in Strata News #150

Question: Who pays for the repair of my balcony and what are my rights regarding the design? Should the unsafe balcony be replaced with something similar?

I am in an owner in a block of four units in NSW. Both mine and one of my neighbour’s balconies are structurally unsound and the problems look to go back to the original builder. It was a while ago and all four owners are going to review an insurance claim separately to the action of fixing both balconies.

Right now the other two owners (without balconies) do not want to pay for the replacement of the existing balconies and want us to replace our balconies with either Juliette balconies or windows as its cheaper and less disruptive to them.

Both myself and the other neighbour who’s balcony is impacted want to replace the balconies to the original like for like state. We are currently deadlocked and the units have tenants, so safety is one issue.

The question I have is – can my neighbours actually push for this under the law? I am not asking for more than previous, just to replace the balcony to the existing situation and I also don’t want to lose any value off my apartment.

What is your view under the strata guidelines on the repair of the balconies and what happens also when the vote is 50/50 on this topic?

Answer: If balconies form part of the common property, their maintenance and repair is the responsibility of the owners corporation.

Our reply is based on the assumption that the balconies are on title to the lots, but form part of the common property.

The Owners Corporation has a responsibility under Section 62 to repair and maintain common property to ensure it is in safe and working order; this is regardless of whether owners have a balcony or not. Generally, the balcony structural elements are common property and as such would require repair by the Owners Corporation.

The balconies, if deemed to be structurally unsound, would in our view require the Owners Corporation to immediately take steps to ensure the subject areas are safe and the replacement or repair of the balconies should be undertaken with urgency.

To change the current set up of balconies to either a Juliette balcony or windows would require a special resolution of the Owners Corporation (in addition to DA consent from council), as the subject changes will change the overall appearance of the building which requires a special resolution.

Therefore you and the other unit will need to have 25% or more of the total unit entitlement to vote against the special resolution which will prevent the change going through.

The general replacement of the same set up will require an ordinary resolution by the Owners Corporation.

Leanne Habib Premium Strata P: 02 9281 6440 E: info@premiumstrata.com.au

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

This post appears in Strata News #101.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Can you relate to this situation? Is something similar happening at your scheme? What have you tried to solve garden maintenance at your apartment building? Please let us know below in the comment section.

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Read next:

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• NSW: Q&A Owners Corporation Committee Decisions

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