This article on Owners Corporation’s Duty – Repair & Maintain Common Property has been supplied by Pierrette Khoury of Turnbull Bowles Lawyers.
An Owners Corporation has a statutory obligation to repair & Maintain common property. This is particularised in section 62 of the Strata Schemes Management Act 1996 (“the Act”) which relevantly provides:
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- An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
- An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
- This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
- it is inappropriate to maintain, renew, replace or repair the property, and
- its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
It is imperative the Owners Corporation is mindful of its obligations with regard to the legislation and ensures the common property is properly maintained and repaired. Failure to do so, can affect the amenity of the building and market value of the property in general. Further, a lot owner may commence proceedings against the Owners Corporation and its managing agent seeking:
- Orders for the Owners Corporation to carry out the repair works.
- Damages with regard to property damage as a result of the failure to maintain and repair.
- Compulsory appointment of managing agent, under Section 162 of the Act.
In the case of The Owners Strata Plan 50276 v Thoo  NSWCA 270, the Court held that the obligation under section 62(2) is directed at keeping the common property operational and thus, will only arise in circumstances where the common property is no longer operating effectively or has fallen into disrepair to the point where it is no longer in a state of good and serviceable repair pursuant to section 62(1). The Court clarified that the obligation to replace requires no more than the installation of one thing in the place of another to achieve performance and functional significance.
If an Owners Corporation was seeking to alter something in the building to the effect it is an improvement or enhancement, it is beyond the scope of section 62(2) and will require a special resolution pursuant to section 65A of the Act.
Relevantly, section 65A of the Act provides:
- For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:
- add to the common property,
- alter the common property,
- erect a new structure on the common property.
If you have any questions regarding this article, please contact:
Turnbull Bowles Lawyers
P: (02) 8272 1999.
This article was first published to the Turnbull Bowles Lawyers website.
For more information on matters such as the body corporates obligations to repair & maintain common property or strata issues in NSW, visit our FactSheet: Maintenance & Repair of Common Property or FactSheet: Strata Legislation NSW