NSW: Q&A Improvements to common property. Is a by-law required?

This article is about requirements for common property improvements.

Table of Contents:

• QUESTION: If new balconies mostly benefit seven of nine units but negatively impact sunlight and views for the remaining two ground floor lots, must all owners still contribute equally to the cost?
• QUESTION: Can you clarify the “like for like” concerning external paint colour choices?
• QUESTION: If strata resolves to make an addition to common property, is there any need to create a specific by-law concerning each of the proposed additions before actioning?

Question: If new balconies mostly benefit seven of nine units but negatively impact sunlight and views for the remaining two ground floor lots, must all owners still contribute equally to the cost?

There are nine units in our block. The owners corporation wants to extend the building’s balconies, positively impacting seven units. However, the balconies will block sunlight and views for the two ground-floor lots. The owners corporation plan on proceeding, with all owners sharing the cost equally.

Some units will get 20m2 or 15m2 of usable balcony space, and the ground floor lots will only gain 13m2. The plans include removing the front walls to make way for glass sliding doors, an advantage for the top seven units, but this will reduce privacy for the two ground-level units that face the road. Are the two ground floor units required to contribute equally to the works even though the improvement doesn’t benefit them?

Answer: Assuming the by-law is not invalidated and that it is in respect of common property works, a lot owner would need to contribute to the works.

This question is specific, and it appears to require legal advice.

In general, the scenario described would likely have required a development application (which would have involved a detailed consultation process). The extension of the balconies is likely to require subdivision as the lot balconies are increasing in size and incorporating airspace, that was previously (or presently, is still) common property. This might also require adjusting the unit entitlements as a result. We are also unsure of the age of this strata scheme, and it may be under the pre-74 centreline rule or the post-74 current rules.

In respect of unequal benefit, no rule expressly prohibits by-laws that create an unequal benefit (assuming these works create an unequal benefit). A by-law may be invalidated by the Tribunal, pursuant to Section 150 of the Strata Schemes Management Act 2015 (NSW) (“SSMA“) where a by-law is unjust, or harsh, unconscionable, or oppressive: Section 139 of the SSMA. A by-law, by merely creating an unequal benefit, might not reach the criteria of unjust, harsh, unconscionable, or oppressive, and whether the threshold is met would turn on the specifics of the by-law and the unequal benefit.

Assuming the by-law is not invalidated and that it is in respect of common property works, the answer would be in the affirmative: a lot owner would need to contribute (according to unit entitlement) to the works.

These are the general observations we have from the question, but given the very specific scenario presented, and a lot can turn on the specifics, we strongly suggest the enquirer seek legal advice.

Matthew Lo and Ashley Howard
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060

This post appears in the July 2025 edition of The NSW Strata Magazine.

Question: Can you clarify the “like for like” concerning external paint colour choices?

Can you clarify “like for like” concerning external paint colour choices? We want to repaint the outside of our building. We only have three of the five lot owners who agree with the project. We have already unsuccessfully conducted a GM.

Considering “like for like”, could we paint the dark brown doors white to match other aspects of the building, such as the balustrades and screen doors? Part of the downstairs footpath is yellow and the other section is red. Could we paint the whole path red?

Answer: It is widely accepted that changes to the existing colour scheme would be deemed as an alteration to the common property, for the purpose of improving or enhancing it.

When dealing with changes to common property, we rely upon section 108 of the Strata Schemes Management Act (NSW) 2015 (‘the Act’):

1. Procedure for authorising changes to common property An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.
2. Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

To dissect this, we must first consider if we are going to:

1. add to common property
2. alter the common property; or
3. erect a new structure on common property.

Then we must consider if we are doing so for “the purpose of improving or enhancing common property”.

It is widely accepted that changes to the existing colour scheme would be deemed as an alteration to the common property, for the purpose of improving or enhancing it.

Therefore, in accordance with section 108, a special resolution in a general meeting (wherein no more than 25% of votes cast are against the resolution) is necessary to approve those works.

Some may argue that repainting the common property is considered maintenance, which an owners corporation is obligated to do under section 106 of the Act. If we were to repaint in the same colour scheme, it would be unlikely to be considered an “improvement or enhancement”.

However, section 108 allows us to clarify “maintenance” versus an “improvement or enhancement” and how to approach it.

Furthermore, approaching this with a special resolution avoids any potential argument of an invalid decision being made (as the threshold for votes in favour is higher than an ordinary resolution).

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in the June 2024 edition of The NSW Strata Magazine.

Question: If strata resolves to make an addition to common property, is there any need to create a specific by-law concerning each of the proposed additions before actioning?

If our NSW strata resolves at a general meeting by special resolution of the owners corporation to make an addition to common property, is there any need to create a specific by-law concerning each proposed addition before actioning?

The subject additions would not be maintenance but improvements, as the common property would not have existed. Examples could be EV charging infrastructure, solar batteries, fibre optic data networks, or a common property garden pergola.

Answer: If the work is to be conducted by a lot owner and the lot owner is to maintain the work, a by-law is required.

A special resolution is required if you add to the common property, for example, install EV charging infrastructure. Note that as this is sustainability infrastructure, the calculation of votes for this type of special resolution differs from a normal special resolution.

At some stage, all infrastructure will require repairs, maintenance, renewal and replacement. If the work is to be conducted by a lot owner and the lot owner is to maintain the work, sections 108(3) and (4) require a by-law to be passed. No by-law is required if the owners corporation does the work and is responsible for maintaining it.

Allison Benson
Kerin Benson Lawyers
E: [email protected]
P: 02 4032 7990

This post appears in the April 2024 edition of The NSW Strata Magazine.

Disclaimer: This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.

Have a question about repairs v improvements in NSW apartments or something to add to the article? Leave a comment below.

Read next:

• NSW: Repairs v Improvements to the Common Property: When Is a Repair a Repair?
• NSW: Replacing Items of Common Property Just Got Much Harder

Visit Maintenance and Common Property OR NSW Strata Legislation

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