NSW: Who pays for investigations when a strata complaint lacks evidence?

This article discusses how strata complaint investigation costs are typically handled when an owner raises an issue without compelling evidence, including who may be responsible for expert reports and investigations.

Question: If an owner raises an issue where there is no compelling evidence there is a problem for the Committee to attend to, who should pay for the investigation?

I understand that we have a responsibility to repair and maintain common property. On occasions, an owner may raise an issue where there is no compelling evidence that there is a problem that the Committee needs to attend to. In instances such as this, who should pay for the investigation into the issue?

For example, what happens when an owner complains that neighbours are noisy. I understand from reading the LookUpStrata publication that we can commission an Acoustic Engineer to evaluate noise level – that in itself is sound advice.

In such an instance should the Committee act only after the lot owner had supplied supporting evidence to justify their noise complaint? and what then If the engineer comes back with a report stating the noise levers are within reasonable/acceptable levels – Who pays? The Lot Owner? Strata?

This scenario could also be applied to things like defects – e.g if a lot owner believes the balcony waterproofing is defective.

Answer: If an owner feels there is an issue to be raised, they need to present a proper argument backed by compelling evidence. A weak argument will go nowhere.

In any given scenario, the evidence needs to be compelling enough for an owners corporation or its strata committee to decide to take action, whether it is an allegation of a breach of by-laws or reporting a matter for repair and maintenance.

On the other end of the scale, if an owners corporation or its strata committee are unreasonably refusing to take action, they can be compelled to do so by order of a Tribunal or Court.

In the same way, if an owner feels that an owners corporation is unreasonably refusing to act, and they seek orders from a Court or Tribunal, they have to convince the Court or Tribunal. For example, in the case of a noise complaint, there would need to be sound recordings, witnesses, a record of disturbances and so on.

As for who is responsible for costs – this can always be negotiated depending on the circumstances. For example, the owners corporation may say that the owner has to produce the acoustic engineers report to prove that there is in fact an issue to then pursue from a repair/maintenance perspective. The owners corporation may agree that, if the report does prove an issue, it will reimburse the owner. The owners corporation may also ask that the owner use a specific engineer to ensure a quality outcome.

Sometimes this is not so easy – for example, there is flooding of an apartment, the owners corporation organises a plumber to the unit above, only to find they left their tap on. In that situation, it would not be unreasonable for the owners corporation to ask for the costs of the plumber to be reimbursed (though the next question is whether the occupant of the unit above actually agrees to and pays for the invoice – and if they don’t, is the owners corporation going to spend money on pursuing the matter through the courts?).

Finally, it is important for all parties to understand their rights and obligations to begin with, so they can respond appropriately. Reading the many articles published by LookUpStrata is a great start.

So where does this all leave us?

1. If occupants/owners/agents and other stakeholders feel there is an issue to be raised, they need to present a proper argument backed by compelling evidence. A weak argument will go nowhere.
2. When considering matters, the owners corporation and its strata committee need to be satisfied of the issue, but also need to be willing to listen and to take matters seriously. Understanding the owners corporations obligations is key to this.
3. If an owners corporation or its strata committee fail to then take action, they can be compelled to do so by the Tribunal or Courts. The Tribunal or courts then decide for everyone.

This post appears in Strata News #586.

Tim Sara
Sara Strata
E: tim@sarastrata.com.au
P: 04 8500 7960