NSW: Who pays to move pots and spas and are owners creating an obstruction?

Question: The Owners Corporation is undertaking remedial waterproofing on a common property rooftop terrace which is included in our title. They have asked us to move our large pots and spa. Shouldn’t this be their cost?

The Owners Corporation is undertaking remedial waterproofing on a common property rooftop terrace which is included in our title. We have a spa and large pot plants and they want us as owners to pay for these to be moved for the waterproofing work to commence.

Who should pay for these to be moved? I thought this would be considered the Owners Corporation cost.

Answer: Your pots are an obstruction.

The Owners Corporation is exercising its rights under Section 122 of the Strata Schemes Management Act, 2015 (NSW) extracted below. The risk for you is that if your large pots and plants are damaged in the course of the Owners Corporation carrying out its duties, the Owners Corporation may not be liable because your pots were an “obstruction”. See paragraphs (5) & (6) below.

122 Power of owners corporation to enter property in order to carry out work

1. 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:

   1. 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),
   2. work required to be carried out by the owners corporation by a notice given to it by a public authority,
   3. work required or authorised to be carried out by the owners corporation by an order under this Act.
2. 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.
3. In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.
4. 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.
5. A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section. Maximum penalty: 5 penalty units.
6. 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 #526.

Leanne Habib
Premium Strata
E: info@premiumstrata.com.au
P: 02 9281 6440