These Q&As about the repair of balcony and maintenance of common property have been answered by Luke Derwent of Wellman Strata and Leanne Habib of Premium Strata.
Table of Contents:
- QUESTION: Is it possible to access a unit if the owner has not granted permission but the tenant has? This is for the sake of a dye test and roofing repairs.
- QUESTION: Our strata is trying to charge us for the repair of the balcony. Is this part of the common property? We feel bullied and are not sure how to proceed.
- QUESTION: Who pays for the repair of my balcony and what are my rights regarding the design? Should the unsafe balcony be replaced with something similar?
Question: Is it possible to access a unit if the owner has not granted permission but the tenant has? This is for the sake of a dye test and roofing repairs.
Answer: The occupier needs to give his consent, therefore, the committee may enter the lot because it is the occupier’s consent which is determinative.
The access provision of the Strata Schemes Management Act, 2015 (NSW) are drafted in terms of the “occupier” giving access.
The definition of “occupier” of a lot means a person in lawful occupation of the lot. Therefore, in our view, the occupier may be the owner-occupier or tenant, so, in your case, the occupier needs to give his consent, therefore, the committee may enter the lot because it is the occupier’s consent which is determinative. Further, the Owner must not “obstruct” or “hinder” the owners corporation and such obstruction or hindrance attracts penalties.
122 Power of owners corporation to enter property in order to carry out work
- An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work:
- work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
- work required to be carried out by the owners corporation by a notice given to it by a public authority,
- work required or authorised to be carried out by the owners corporation by an order under this Act.
- An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.
- In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
- In a case that is not an emergency, the owners corporation may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of the Tribunal under this Division.
- A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. Maximum penalty: 5 penalty units.
- An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
This post appears in Strata News #431
Question: Our strata is trying to charge us for the repair of the balcony. Is this part of the common property? We feel bullied and are not sure how to proceed.
We are two senior sisters who own a unit. We have bought it with an enclosed balcony. In our small strata scheme, approximately half of the balconies are enclosed. We all have the Council approval for these enclosed balconies.
For the last few years, there has been a lot of arguing about the bad, unsafe state of most of the balconies, not only those enclosed.
Two enclosed balconies (whose owners are on the strata committee) blew away in a storm and the Strata insurance replaced them.
Now our strata want to pass a bylaw saying that all the balconies that need replacement have to be repaired. Strata will pay for all of the open balconies and the owners of the enclosed balconies must pay for theirs, approximately $25,000 each!
Do we have to vote and sign for this bylaw as we feel it is unfair!
- We had paid for our enclosed balcony after receiving approval from Council to enclose it. There is no existing bylaw saying that these enclosed balconies are not part of our strata!
- Strata want to replace the balconies, as they did not do ongoing maintenance to the building previously. So if they are going to demolish the open balcony automatically, strata will demolish our enclosed balcony, so Strata has to replace it.
- The two enclosed balconies damaged by a storm were replaced by the Strata insurance, so Strata is responsible for the enclosed balconies!
We are being bullied by the Strata manager, some Body Corporate members (especially the ones who had their balconies replaced by insurance) and even other owners who have open balconies! Please, where do we stand? We are very stressed, especially at our age. Please advise us on this very complex matter.
Answer: Section 106 of the Strata Schemes Management Act 2015 defines quite clearly the Owners Corporation’s responsibility to repair and maintain common property.
This topic throws up a couple of curve balls and reminds me of a legal precedent that has been set on a similar matter.
Issue 1 – Proper Approval/Enduring Rights for the Alteration
The first issue that arises is, though the sisters and others who have enclosed balconies have Council Approval, do they have the proper consent of the Owners Corporation for enclosing the balconies?
In NSW under the previous and current Acts, to enclose a balcony an Owner would need to seek the consent of the owners corporation. This may have been done previously simply by the written consent of the Executive Committee but should have been done at the time by a Special Resolution and Exclusive Use by-law.
Without the Exclusive Use by-law having been passed and registered on title, the owner may not have enduring rights to keep the structure enclosing the balcony. Further, the By-law would define who is responsible for ongoing maintenance of the enclosure and the common property that it is attached to and without a By-law being passed and registered the responsibility for ongoing maintenance falls on the Owners Corporation.
It would be prudent for the owners of the lots with enclosed balconies to seek the By-law to permit the installation of the structure to enclose the balconies, and to provide for the ongoing maintenance of the enclosure that they installed, and the attachment to the common property affected by the installation. This by-law could be passed and registered with somewhat a retrospective approval. This by-law is of benefit to owners with the enclosure and the Owners Corporation.
Without the By-law being passed and registered, it is possible that with a “changing of the guard” of the owners corporation/strata committee, an owner or even the Owners Corporation could seek an order of NCAT to seek that the enclosures be removed. Based on past precedent, they may be successful in obtaining this order, but the Owners Corporation may end up paying for the removal and make good of common property.
Issue 2 – Works to the Balconies
It would be good to clarify what works are required to the balconies. For example, is it that the original floor/structure of the balcony needs replacing, the balustrade needs repair or replacement, or the balcony door/wall/window structure that is now needing work? Also, what was the date of registration of the Strata Plan? If the strata plan was registered prior to 1 July 1974, the lot owners are responsible for the balcony door/wall/window structure separating the balcony from the rest of the apartment.
Section 106 of the Strata Schemes Management Act 2015 defines quite clearly the Owners Corporation’s responsibility to repair and maintain common property. If the works relate to the balcony slab/floor or the balustrades, it is clear that the Owners Corporation is responsible for these works whether or not the balconies are enclosed and especially as no By-law has previously been passed. Further to this, it could be argued that in doing the works to the balconies, given the current position where there is no By-law in place, the Owners Corporation may have an obligation to reinstate the enclosure of the balcony fitted by a number of lot owners.
If the Owners Corporation were to seek to determine that some balconies were not the Owners Corporation’s responsibility to repair and maintain, there would need to be a Special Resolution passed at a General Meeting to determine this and most importantly they would need to resolve.
“(b) 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.”
Issue 3 – Insurance Obligations
The Owners Corporation has an obligation to insure Fixtures and Fittings, and ordinarily, this will be included in a Strata Insurance policy. Section 161 of the Act covers the details clearly as to what parts of the building are to be covered by a damage policy. But this in no way defines who has responsibility for ongoing repair and maintenance. So it is not unusual that the Owners Corporation’s insurance policy has responded to the previous storm damage claim.
Best Outcome for All
Given all of the above, it would be best for the Owners Corporation to tidy up their act and work cohesively as a community. The best outcome will be for the Owners Corporation to accept their ongoing responsibility for the maintenance of the common property components of the balconies, and that the owners with enclosed balconies obtain and agree to the wording, passing and registration of the Exclusive Use By-law, giving them the rights to keep the balcony enclosure and responsibility to maintain their structure.
Happy to discuss this response further and understand it is lengthy.
This post appears in Strata News #150
Question: Who pays for the repair of my balcony and what are my rights regarding the design? Should the unsafe balcony be replaced with something similar?
I am in an owner in a block of four units in NSW. Both mine and one of my neighbour’s balconies are structurally unsound and the problems look to go back to the original builder. It was a while ago and all four owners are going to review an insurance claim separately to the action of fixing both balconies.
Right now the other two owners (without balconies) do not want to pay for the replacement of the existing balconies and want us to replace our balconies with either Juliette balconies or windows as its cheaper and less disruptive to them.
Both myself and the other neighbour who’s balcony is impacted want to replace the balconies to the original like for like state. We are currently deadlocked and the units have tenants, so safety is one issue.
The question I have is – can my neighbours actually push for this under the law? I am not asking for more than previous, just to replace the balcony to the existing situation and I also don’t want to lose value off my apartment.
What is your view under the strata guidelines on the repair of the balconies and what happens also when the vote is 50/50 on this topic?
Answer: If balconies form part of the common property, their maintenance and repair is the responsibility of the owners corporation.
Our reply is based on the assumption that the balconies are on title to the lots, but form part of the common property.
The Owners Corporation has a responsibility under Section 62 to repair and maintain common property to ensure it is in safe and working order; this is regardless of whether owners have a balcony or not. Generally, the balcony structural elements are common property and as such would require repair by the Owners Corporation.
The balconies, if deemed to be structurally unsound, would in our view require the Owners Corporation to immediately take steps to ensure the subject areas are safe and the replacement or repair of the balconies should be undertaken with urgency.
To change the current set up of balconies to either a Juliette balcony or windows would require a special resolution of the Owners Corporation (in addition to DA consent from council), as the subject changes will change the overall appearance of the building which requires a special resolution.
Therefore you and the other unit will need to have 25% or more of the total unit entitlement to vote against the special resolution which will prevent the change going through.
The general replacement of the same set up will require an ordinary resolution by the Owners Corporation.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
This post appears in Strata News #101.
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