An NSW Lot Owner has carried out renovations on their apartment without approval and they are wondering what steps to take now.
Table of Contents:
- QUESTION: A lot owner has carried out works on his balcony and installed air conditioning without approval. What steps should the OC take to protect themselves?
- QUESTION: A previous lot owner in our small scheme carried out unapproved works which have now been discovered to have caused damage to common property. How do we proceed?
- QUESTION: Our neighbours have undertaken extensive renovations without approval. I’ve notified the committee but nothing is being done.
- QUESTION: My neighbour’s unapproved bathroom renovations have caused damage to my lot but he will not give permission for access. What can I do?
- QUESTION: Our neighbour drilled into our balcony to install an awning shade. What do we do now? Who is responsible if there is future damage due to the installation?
- QUESTION: We have recently renovated our kitchen without approval from the Owners Corporation. Will have to return the kitchen to the original condition or be fined?
Question: A lot owner has carried out works on his balcony and installed air conditioning without approval. What steps should the OC take to protect themselves?
An owner has tiled his balcony and installed air conditioning with a visible compressor sitting on the balcony. The owner has not obtained permission and we do not know if the people who carried the work are qualified. The owner has not supplied a full scope of works on either jobs. My understanding is that both jobs are minor renovations; however, waterproofing (if applicable) is a major renovation. Apart from no resolution obtained for both jobs, the owner still needs a common property rights bylaw which I am not sure we have. We do have a minor renovations bylaw.
- Are we able to ask the owner to supply a full scope of works so we can in retrospect approve or decline and thus seek an order to remove both as they are unlawful?
- If the lot owner intends to sell his unit down the track, he has made unauthorized changes to common property.
- What about the maintenance of the common property in case of damage caused by shoddy work?
Answer: You can retrospectively approve the application. I would be advising the first step is writing to the lot owner.
I wouldn’t say that they’re minor renovations because of the waterproofing. I’m assuming if they tiled the balcony, they would have had to put some sort of waterproofing substance down. Waterproofing does need a bylaw.
If it was just the (air conditioning system, and it was installed on the balcony where it’s not visible, and it doesn’t change the aesthetics of the overall appearance of the building, then you could consider it under a minor renovation. The minor renovation bylaw that the reader has referred to is potentially just permitting the strata committee to consider minor renovation applications, because under the Act a minor renovation application is considered at a general meeting, unless you have a resolution that permits your strata committee to consider those applications. I’m assuming that bylaw is just permitting the committee to consider that.
Going back to these type of works, they have tiled the balcony (I’m assuming this membrane and waterproofing). Even if there’s no membrane waterproofing, the tiles are attached to the lot, so I would say it needs bylaw. Regarding the air conditioning, if it’s not visible from outside of the building, then a minor renovation is fine. But if you’re going to have the bylaw for the balcony tiles, I would throw in the air conditioning in that bylaw.
You can retrospectively approve the application. I would be advising the first step is writing to the lot owner:
- advising that they’ve carried out on authorise works,
- advising them to make a full application so you can consider the impact on common property or any other lot as a result of these works
If the works are in order, and the Owners Corporation has no concern with the works then 100% they should be ratifying any approval by way of a bylaw. Because again, that is the mechanism in which will protect any shoddy works, any poor workmanship. When an incoming owner comes in, you want to make sure that the Owners Corporation is not responsible for those alterations. When an incoming owner comes in those assume the tiles are common property as they are in most cases for most schemes (not every scheme, but most), they would assume that the Owners Corporation responsible because there’s no bylaw to advise of that. I think the Owners Corporation has a duty of care to ensure that they enforce any unauthorised applications for that very reason that if an incoming purchaser comes in and says ‘Well, I did a search there was no indication whatsoever on the record, I wasn’t aware that I’d be responsible for these balcony tiles. The Owners Corporation failed to pursue the previous owner for the unauthorised works and I’ve now been affected because of that’.
I would strongly recommend this owner be pursued for the unauthorised works.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #533.
Question: A previous lot owner in our small scheme carried out unapproved works which have now been discovered to have caused damage to common property. How do we proceed?
We are a small complex of 7 townhouses and villas. One of the previous owners conducted unapproved renovations and now it appears that this has resulted in structural damage to the lot. The subsequent owner (who has been in residence for approximately 2 years), has noticed these structural damages and has asked the OC to share the cost of fixing. It’s not a small amount.
I was wondering where the liability and cost falls.
The previous owner who conducted the unapproved renovation was a tradesperson so they should have insurance, however, they not responding to our calls/emails/etc for obvious reasons.
Is the OC liable for the costs under the circumstances? Or should the lot owner have done their due diligence and had the property properly inspected for damage prior to purchase?
Answer: We recommend that you obtain expert strata legal advice or find an amicable resolution and consider costs sharing.
This is not legal advice, however, we are aware that there is a NSW Supreme Court case which held that an owners corporation’s obligation to repair and maintain the common property extended to rectifying the damage to common property that was caused by an individual lot owner’s works but because the damage to the common property was caused by other lot owners, those other lot owners were held liable to indemnify the owners corporation in that regard.
In terms of the damage to lot property caused by another lot owner’s works, the Supreme Court also held that the lot owners who carried out the works were liable for damage caused to the other lot’s lot property pursuant to the hazard/interference/nuisance provisions of the strata legislation.
Your matter is complicated by the fact that the previous owner has sold and that the Owners Corporation did not pursue the previous lot owner to obtain the proper approvals at the relevant time. This may, in turn, impact on the Owners Corporation’s building insurance coverage.
It seems that the structural damage is latent (ie was not obvious at the time of purchase) and that even if the new owner had obtained a building condition pre-purchase inspection report, it would not have been detected.
The current lot owner may be able to pursue a private cause of action in nuisance against the previous lot owner.
We recommend that you obtain expert strata legal advice on behalf of the Owners Corporation, or, in the interests of saving legal costs and avoiding potential disharmony at the scheme, find an amicable resolution and consider costs sharing and engage the appropriate experts eg engineers etc.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in the December 2021 edition of The NSW Strata Magazine.
Question: Our neighbours have undertaken extensive renovations without approval. I’ve notified the committee but nothing is being done.
Our neighbour submitted major works at the 2019 AGM. This work was not approved. Regardless, they started working on the extensive renovations. A stop order was given in May 2020.
They have started work again, although I’m sure no approval has been given. They’ve built a toilet on their rooftop terrace and are intending to install a gas fireplace. I’ve provided evidence to the strata committee, but the committee has not taken any action. What else can I do?
Answer: You do have a few options
You may:
- Make your own complaint to your Local Council
- Requisition a motion at a general meeting of the Owners Corporation (in compliance with the strata legislation) that the Owners Corporation take action against the lot owners carrying out works without the proper approvals including issuance of a Notice to Comply with the by-laws applicable to the scheme
- Apply to NCAT for urgent/interim orders that the works stop
NSW Fair Trading offers free general advice on such matters and you may wish to consult a lawyer in case the works directly impact your lot or your enjoyment of it.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in the November 2021 edition of The NSW Strata Magazine.
Question: My neighbour’s unapproved bathroom renovations have caused damage to my lot but he will not give permission for access. What can I do?
There has been a bylaw put in place that says the unit above me will pay for any damage caused by his unapproved bathroom renovation.
There has been a leak causing damp walls in my unit since before Christmas. After the plumber, hired by the Strata company, fixed a few problems he thought the problem was solved. Unfortunately, it wasn’t, and the owner has refused to allow entry to another plumber. The committee say they are talking to the owner about this.
What Options are available?
Answer: Orders for Access must be sought from NCAT
It seems that the subject by-law was passed by retrospective approval of the Owners Corporation, and, under its terms, the Owner of the bathroom would be liable for any loss or damage caused to lot or common property. Depending on the source of the cause of your damp, the Owners Corporation could enforce the provisions of the by-law by seeking orders from NCAT and you could seek orders from NCAT in that the water ingress is causing you a nuisance.
While it is unclear who the “other” plumber was contracted by, if it was the Owners Corporation, except in case of emergency, it would need the other lot owner’s consent for the Owners Corporation’s contractor’s entry, in the absence of which, Orders for Access must be sought from NCAT.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #510.
Question: Our neighbour drilled into our balcony to install an awning shade. What do we do now? Who is responsible if there is future damage due to the installation?
Our downstairs neighbour got approval to set up an awning for her backyard. In her request she stated that drilling was ‘probably not required’, however, she then drilled into our balcony. She has attached two awnings to our balcony without any consent from or the owners corporation.
Is she allowed to do that? Our balcony is included in our allotment, but the owners corporation is responsible if there’s any structural issue with our balcony. What course of action can we take? What if the awning attachment causes any future damage to our balcony?
Answer: If the downstairs neighbour received the proper approvals, she would likely be responsible for any loss or damage caused to the lot and common property including yours.
If the downstairs neighbour received the proper approvals, she would likely be responsible for any loss or damage caused to lot and common property including yours. She would have required a by-law in which case you would have been notified of an upcoming meeting to consider same. You should carefully review her approval to determine whether or not she obtained proper consent and whether or not she has exceeded the scope of her stated works.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #454.
Question: We have recently renovated our kitchen without approval from the Owners Corporation. Will have to return the kitchen to the original condition or be fined?
We live in a strata townhouse complex in NSW.
I have just done some renovations to my kitchen including new cupboard doors and benchtops. I have recently found out that I should have sought our Owners Corporation’s permission to do the renovations.
I was under the impression that minor work like kitchen renovations could be done without approval.
I am looking for advice on what I should do now. Should I contact my strata manager and let them know work has been done?
What is the likelihood I’ll have to return the kitchen to the original state or be fined for carrying out renovations without approval?
Answer: Transparency and pro-activeness is usually the best approach when something like renovations without approval occurs.
Kitchen renovations (with works involving waterproofing) are “minor renovations” under the new strata legislation which means you should have obtained an ordinary resolution at a general meeting of the owners corporation (or resolution of the strata committee if there is a by-law authorising the strata committee to approve minor renovations).
Transparency and pro-activeness is usually the best approach when something like renovations without approval occurs, so, yes, contact your strata manager, provide a full scope of works carried out and indicate that you will repair & maintain your works and indemnity the owners corporation in respect of them.
It is difficult to predict the likelihood of having to remove your renovations and it would be difficult to reinstate the common property because presumably you no longer have the original fixtures, fittings, tiles etc.
Enforcement of strata legislation varies from scheme to scheme and strata management agency to strata management agency but given your willingness to regularise your works, in our view, it is unlikely you would be expected to remove your works.
Leanne Habib
Premium Strata
E: [email protected]
P: 02 9281 6440
This post appears in Strata News #217.
Read next:
- NSW: Q&A Strata approval for renovations – What is the process?
- NSW: Are We All Getting It Wrong? Unauthorised Works: Who Is Responsible For Repairing Them?
These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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Who is responsible for the insurance of a expensive sun awning installed by an owner even if they have body corporate permission from the BC committee ?
Hi,
I recently renovated two bathrooms and a laundry in my unit. I gained written approval for these works. I have also commenced replacing the kitchen which I wasn’t aware I needed approval for. What should I do?
I am also replacing the flooring from carpet to laminate flooring. Do I need approval for this to be completed?
I don’t understand this answer as the act clearly states that anything involving waterproofing is NOT a minor renovation and therefore it requires a special resolution of the owners corporation to approve it. Ref Sections 108 – 110.
Hi Ipmcinfo
We have received the following reply back from Leanne Habib, Premium Strata:
We do not disagree with your position. Either it is a minor renovation requiring an ordinary resolution at a general meeting (or majority vote at strata committee level if there is a minor renovation approval by-law in place) or it is a renovation requiring a by-law by special resolution. Any waterproofing works require a by-law to be passed by special resolution.
Another aspect which may be relevant is the level of insurance for the scheme. When pre-approval is gained the insurer can be advised of the increased risk during works and can note an increase in value of lot owner fittings. This would not necessarily increase premiums but may be a notifiable event.
You would have to go through mediation and if you cannot agree, then the decision will be left up to the courts.
The owner should provide the Committee a structural engineering report which hopefullly states no damage to the building has occured post renovations. Owner should have really asked for approval pre works.
An owner in our strata complex of 9 units began a renovation about 2 months ago. As it turns out they gave no notice to the Strata committee, they’re doing the work cheaply as sort of owner builders and have ripped out most of the internal plasterboard to their property.
I recently overheard the owner being told off by the licensed electrician for doing the work of the sparkie but without a license. The plaster is now up and the sparkie has no idea what has gone in between the apartment walls.
This sort of thing just should not be allowed to occur. Not only is their property at risk but the eight others in the block as well.
I would also bet that they have done no waterproofing in their newly installed kitchen. Luckily we are on the ground floor and have a sprinkler system installed. Sheesh.