Question: Who bears the costs of correcting unapproved modifications to common property?
Who bears the costs of correcting unapproved modifications to common property?
A couple of lot owners in our strata have cut down the fire-rated main doors to their units to accommodate new tiling or carpet. A recent inspection by a fire certifier has now listed these doors as defective. The modifications were not approved by the Body Corporate. One door now needs to be replaced and the other needs a special attachment fitted to the bottom of the door.
Although fire-rated doors are common property and the responsibility of the Body Corporate, it seems reasonable that the lot owners should be charged the costs to make the doors compliant with fire safety regulations.
So, are these costs a lot owner or a body corporate responsibility?
Our Body Corporate would undertake these necessary fixes.
If indeed the costs are a lot owner responsibility, can the costs be added to the respective levies for these apartments?
If the lot owner refuses to pay then the debt would remain, the lot owner would be unfinancial and unable to vote on resolutions. Is this correct?
Does the same logic apply to costs of correcting any unapproved modification to common properly undertaken by a lot owner?
Answer: Section 106 requires repairs and maintenance once common property becomes defective; it is a strict legal duty.
The starting point is that the owners corporation must pay for repairs and maintenance of common property including reversing or remedying any unauthorised works to common property however the owners corporation may have a right to recover that cost from the person who did the unauthorised works.
Section 106 of the Strata Schemes Management Act 2015 (SSMA 2015) requires an owners corporation to repair and maintain common property. Section 106 requires repairs and maintenance once common property becomes defective; it is a strict legal duty. Where common property has been altered due to unauthorised works, the duty has been held to extend to restoring common property to its original state before the unauthorised works were carried out (see cases such as John Maait Properties Pty Ltd v The Owners – Strata Plan No 50396 [2019] NSWCATAP 26 and The Owners – Strata Plan 21702 v Krimbogiannis [2014] NSWCA 411).
While the owners corporation must re-instate common property because of the unauthorised works of a third party, that does not leave the owners corporation without a remedy. Generally speaking, a person (eg a lot owner) is not permitted to do work to another person’s property (eg the owners corporation’s common property) without permission (see The Owners – Strata Plan 32735 v Heather Lesley-Swan [2012] NSWSC 383).
A person who does unauthorised works to another person’s property commits a legal wrong called trespass. In addition, in the strata context, it is likely such unauthorised works are also a breach of by-laws such as model by-law 5 for pre-1996 strata schemes and (section 111) of the SSMA 2015. Under section 132 of the SSMA 2015, the owners corporation could seek in NCAT an order that the lot owner rectify the unauthorised works or an order that the lot owner pays to the owners corporation the cost of rectification so that the owners corporation can rectify the unauthorised works. The owners corporation should obtain legal advice before taking legal action to ensure that it has the evidence to be successful, that it has taken the necessary steps to authorise commencement of litigation and that it is suing the correct person.
The cost of rectification should not be added to the lot owner’s levy account unless either the lot owner has agreed to the amount of it or a court has ascertained that amount (see The Owners – Strata Plan No 52098 v Khalil [2014] NSWLC 2). Once the amount is ascertained by either agreement or court order, the lot owner would be an unfinancial owner and could not vote at general meetings until they paid the amount.
Carlo Fini
Lawyer (NSW)
Leave a Reply