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)
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