NSW: Who is responsible for damage after minor renovations in NSW?

Question: Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. If damage occurs, who repairs the common property?

Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. For example: Unit X’s owner replaces the unit block-standard single-glazed windows with double-glazed windows in Unit X only. In the event of damage to Unit X’s windows or to the wall around them (e.g. from water ingress):

1. does the owners corporation have to pay only the cost of replacing the unit block-standard single-glazed windows, with Unit X’s owner paying the difference since he wants double-glazing?
2. Importantly, how would you formalise (a) above, given that no special resolution is required?
3. who pays to fix the wall damaged by water ingress through Unit X’s new, double-glazed windows?

I am relying here on:

Section 28 of the Strata Schemes Management Regulation 2016; and

Section 110 of the Strata Schemes Management Act 2015.

Answer: It would be prudent for the owners corporation to make a by-law even though it is not required to.

Section 110 (minor renovations by owners) of the Strata Schemes Management Act (‘the Act’) does contain two key subsections relevant to the circumstances:

Minor renovations by owners

• Section 110(2) – “The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.”
• Section 110(5) – “An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and (b) the minor renovations and any repairs are carried out in a competent and proper manner.”

However, in my opinion it does not specifically transfer the ongoing obligation of repair and maintenance for the affected common property to the lot owner in the same way that a special resolution and by-law under section 108 of the Act would do.

Therefore, one of the “reasonable conditions” the owners corporation may want to impose is that the owner of the lot, from time to time, is responsible for the ongoing repair and maintenance of the common property and furthermore any damage caused to the common property as a result of the works. These should be included in the motion.

One challenge with this approach is that an owners corporation is only required to keep certain records (such as the meeting minutes that contain these conditions) for 7 years, and so the conditions could be lost over time.

For that reason, it would be prudent, in my opinion, for the owners corporation to make a by-law even though it is not required to. This will ensure that the obligations are recorded on title, forever.

It would therefore allow the owners corporation to clarify the answer to the questions you raise long after the decision was made.

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

Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960