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
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