This article discusses NSW strata non compliant screen door removal and who is responsible for the cost.
Question: An outward-opening screen door was installed before I purchased my unit. Strata now deems it a fire safety hazard. Am I responsible for the removal cost, or can I object?
I purchased a unit two years ago. An outward opening screen door was in place when I purchased the unit. I received an email from strata advising that the screen door contravenes the fire safety regulation and the must be removed. Do I need to pay for the removal, or can I object? As the screen door has been in place for years, who is responsible for the removal cost?
Answer: Request formal documentation before agreeing to cover costs for alterations you did not make.
This is a great question, and the answer depends on a few key factors.
Step 1: Is the door common property or lot property?
Under NSW strata law, doors that form part of the boundary between the lot and common property are generally the owners corporation’s responsibility unless a by-law or other instrument (such as a common property memorandum) assigns responsibility to the lot owner.
Since the screen door was already in place when the owner purchased the unit, we need to determine:
- Was the door part of the original building design?
- Was the installation formally approved?
- Was a by-law or common property memorandum created to assign responsibility to the lot owner?
Step 2: Was the installation approved under the law at the time?
- If the door was installed before 2005, it could have been approved at a general meeting, executive committee meeting, or by a managing agent with delegated authority, without the need for a by-law. If this occurred, and no subsequent by-law was passed transferring responsibility, the owners corporation remains responsible for the door and its removal.
- If the door was installed after 2005, section 65A of the Strata Schemes Management Act 1996 (now section 108 of the Strata Schemes Management Act 2015) required a special resolution and a registered by-law for owners to alter common property. If no by-law was registered, the installation was still legally approved if a special resolution was passed, but the absence of a by-law means the owners corporation remains responsible for the door.
- A common property memorandum may also apply. Some owners corporations have registered a common property memorandum that outlines who is responsible for specific alterations, including doors. The NSW Common Property Memorandum is a standard document issued by NSW Fair Trading that specifies maintenance responsibilities between owners and the owners corporation. If a strata scheme has adopted this memorandum, its terms apply unless overridden by a specific by-law. Items listed in the memorandum as lot owner responsibilities remain so unless formally removed via a by-law. If such a memorandum exists and covers screen doors, responsibility would be determined by its terms.
Step 3: Who pays for removal?
- If no by-law or common property memorandum exists, and the screen door is deemed common property, the owners corporation must bear the removal cost.
- If a by-law or common property memorandum assigns responsibility to the lot owner, then the current owner is responsible for removal, even if they did not install the door themselves.
- If a previous meeting (pre-2005) approved the door but did not create a by-law, the resolution itself may still be valid. However, if the resolution stated that the lot owner was responsible, this responsibility may not have been carried forward after the 2005 amendments unless a retrospective by-law was created. The 2005 amendments required that any ongoing owner responsibility for common property alterations must be formalised via a registered by-law. If this step was not taken, the owners corporation remains responsible. Under the 2005 changes, strata schemes were required to pass retrospective by-laws if they wanted to ensure future owners remained responsible for previous approvals. If this was not done, responsibility may still rest with the owners corporation.
- If no by-law exists because the works were unauthorised and conducted after 2005, the owners corporation can require the lot owner to remove the door at their own expense, as it was never validly approved. However, case law (The Owners – Strata Plan No 50276 v Thoo [2013] NSWCA 270) suggests that a new owner cannot always be held responsible for a prior owner’s unauthorised works. If the owners corporation failed to take action against the previous owner at the time, it may not have grounds to pursue the new owner for rectification.
What should the owner do?
Before accepting liability, the owner should:
- Request historical meeting records to confirm if/when the door was approved.
- Check the common property by-laws and common property memorandum to see if responsibility has been assigned to lot owners.
- Ask for legal justification if the owners corporation claims the owner must pay, particularly if there is no by-law.
- If the owners corporation insists the owner must pay despite the lack of a by-law or other formal instrument, they may apply to NSW Fair Trading or NCAT for a ruling.
Final Verdict
If there’s no by-law or common property memorandum, the owners corporation is responsible. If a valid by-law or memorandum exists, the lot owner must cover the cost. If the approval predates the 2005 legal changes, the responsibility may still lie with the owners corporation unless a retrospective by-law was created.
Owners in similar situations should always request formal documentation before agreeing to cover costs for alterations they did not make.
Important Note: This article provides general information only and should not be considered legal advice. Owners should seek independent legal advice for their specific situation.
This post appears in Strata News #735.
Tim Sara Sara Strata E: tim@sarastrata.com.au P: 04 8500 7960