NSW: Going it Alone With Repairs and Maintenance

This article is about a recent court case that questions whether individual owners can repair common property and recover costs if properly approved.

The orthodox view is that an owners corporation is solely responsible for carrying out repairs and maintenance to common property and that individual owners are not entitled to perform their own repairs to common property. However, a recent Supreme Court case has cast doubt on that orthodox view. So is an individual owner entitled to carry out repairs to common property? And if so, in what circumstances?

Common Property Repairs

An owners corporation has a statutory duty to maintain and repair the common property throughout its building. This is a compulsory duty that is imposed on the owners corporation under section 106 of the Strata Schemes Management Act 2015. There are very limited circumstances in which an owners corporation can be relieved from its duty to repair common property. This has led to the orthodox view that it is only the owners corporation that is entitled to carry out repairs to common property.

Common Property Repairs by Lot Owners

But can an individual owner carry out repairs to common property? And in what circumstances can an owner do so? Typically, an owner will be entitled to carry out repairs to the common property if there is a by-law which imposes on that owner the responsibility for performing those repairs. This is often the case when a common property rights by-law gives an owner the exclusive use of an area of common property such as a courtyard adjacent to his or her lot and imposes on the owner the responsibility for the maintenance and repair of that area. But what rights does an owner have to carry out repairs to common property that is not covered by a by-law?

Going it Alone

Section 111 of the Strata Schemes Management Act 2015 says that an owner must not carry out work on common property without proper authorisation. This typically means that an owner must apply for and obtain the permission of the owners corporation to carry out repairs to the common property. But what if an owner cannot wait to obtain that permission or that permission is not forthcoming? Can the owner take matters into his or her own hands and carry out work to repair the common property anyway?

Take the fairly common example of defective waterproofing on common property that causes water to leak into and cause damage to a lot over a period of time. Rather than remain idle and wait for the owners corporation to repair the waterproofing defects whilst allowing her lot to become inundated with water, can the owner carry out the repair herself without having to wait for the owners corporation to approve that work? And can the owner recover the cost of the work from the owners corporation?

Recent Case

In Colman v The Owners – Strata Plan 61131 [2025] NSWSC 63, an owner replaced common property tiles and waterproofing on a terrace area adjacent to his lot without the permission of the owners corporation. The owner applied to NCAT for an order to approve of that work and to recover the cost of that work from the owners corporation. The owner was unsuccessful. The owner appealed to the Supreme Court and lost.

However, the Supreme Court made some interesting remarks about the right of an owner to unilaterally carry out repairs to the common property and recover the cost of those repairs from the owners corporation. The Court concluded that, relevantly:

• an owners corporation itself could retrospectively approve repairs already undertaken to the common property by an owner;
• NCAT could retrospectively approve repairs to the common property undertaken by an owner without the consent of the owners corporation;
• However, NCAT could not retrospectively approve those repairs if the owner did not first seek the owners corporation’s approval for the repairs,
• an owners corporation could be taken to have refused to grant approval for an owner to carry out repairs to the common property even if no formal decision is made by it to do so (where there is a delay in making that decision);
• an owner cannot recover from the owners corporation the cost of carrying out repairs to the common property that have not been approved by either the owners corporation or NCAT;
• there is an open question as to whether an owner can recover from an owners corporation as damages the cost to carry out repairs to the common property where those repairs are approved by either the owners corporation or NCAT.

The Wash Up

The Colman case raises some doubts about the orthodox view that owners cannot do work to the common property and recover the cost of that work from an owners corporation. The case also provides a potential alternative pathway for owners who are faced with a recalcitrant owners corporation where the owners corporation simply fails or refuses to fix defects in the common property that affect the owner’s lot. That alternative pathway allows the owner to take matters into his or her own hands, determine the nature and scope of the repairs that need to be done to the common property, apply to the owners corporation for permission to proceed with those repairs and, if that permission is refused (through an actual or constructive refusal), either:

• apply to NCAT for permission to perform the repairs and an order to be reimbursed by the owners corporation for the cost of those repairs, and then proceed with those repairs; or
• perform the repairs and then apply to NCAT for retrospective approval of the repairs and an order to require the owners corporation to compensate the owner for the cost of the repairs.

Conclusion

It remains to be seen whether owners, out of a sense of frustration, desperation or otherwise, choose to run the gauntlet and take the alternative path that Colman suggests might be available to them.

Adrian Mueller
JS Mueller & Co Lawyers
E: [email protected]
P: 02 9562 1266

This post appears in Strata News #762.

Have a question or something to add to the article? Leave a comment below.

Read next:

• NSW: Q&A Strata approval for renovations – What is the process?
• NSW: Common Property Water Leaks: A Strict Duty to Repair
• NSW: Q&A Common Property Defects and Reimbursement for Repairs

This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.

Visit our Maintenance and Common Property OR NSW Strata Legislation.

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.