Question: The committee will not repair a rotting timber balustrade on my balcony. Can I organise the repair myself and withhold levies to the value of the work?
It took 6 months for our strata committee to agree on a quote to repair and replace a rotting timber balustrade on my common property balcony. I have had an unsafe balustrade for 7 months now with no rectification in sight.
Can I obtain my own quotes and repair the defect myself? Once repairs have been completed, can I send the bill to the committee for reimbursement or withhold strata levies to the value of the repair?
Answer: Owners cannot undertake repairs to common property and then expect to be reimbursed.
An owners corporation has a fundamental duty to repair and maintain its common property in accordance with section 106 of the Strata Schemes Management Act 2015 (NSW) (‘the Act’).
In this scenario, the owners corporation appears to have failed in its duty and attempting mediation is the correct first step.
On many occasions, the Courts have upheld the view that an owners corporation owns and is responsible for making decisions on how it repairs and maintains its common property. For that reason, owners cannot undertake repairs and then expect to be reimbursed. In fact, section 111 of the Act expressly prohibits it unless under specific circumstances.
Also, the non-payment of contributions (levies) is not considered by the Courts as an appropriate or relevant course of action, as evidenced by many cases in relation to debt recovery. The saying “two wrongs do not make a right” comes to mind. These are separate issues.
Owners have the right to seek orders from the Tribunal requiring an owners corporation to undertake repairs and maintenance to common property if it fails to do so. An application can be made to the Tribunal now that mediation has been attempted.
This post appears in the May 2022 edition of The NSW Strata Magazine.
Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213