NSW: Q&A Unit owner requirement to maintain lot property

This article is about an owners requirement to maintain lot property.

Table of Contents:

• QUESTION: My strata plan indicates that a waterproof membrane on my open roof area belongs to my lot. However, the common property memorandum attached to the by-laws states it is common property. Which document takes precedence?
• QUESTION: Do lot owners need permission before replacing their meter? What legal implications or recommended steps should the owners corporation take if this has occurred?
• QUESTION: Is the lot owner required to maintain their lot?
• QUESTION: The strata manager has arranged work on a neglected lot and associated common property and divided the costs among owners. How do we ensure the owner of the neglected lot pays their proportion of the costs?
• QUESTION: A developer owns a lot in our building. It has stood vacant for years and needs maintenance. The developer will not respond to emails. What do we do?

Question: My strata plan indicates that a waterproof membrane on my open roof area belongs to my lot. However, the common property memorandum attached to the by-laws states it is common property. Which document takes precedence?

My lot leads onto an open roof area in our building. Who is responsible for the waterproof membrane in this space? The reading of a note on the strata plan suggests that it is part of the lot, but the common property memorandum attached to the by-laws says it is common property. Which document is correct?

Answer: The strata plan notation prevails, but get legal advice.

The short answer is that the strata plan notation prevails. The reason for this is section 136(2) of the Strata Schemes Management Act 2015, that states:

2. A by-law has no force or effect to the extent that it is inconsistent with this or any other Act or law.

In this instance, the common property memorandum is passed in contravention of the by-laws so that the strata plan notation would prevail.

Due to the probable amount of money involved in the works, I suggest having a lawyer provide quick advice for the owners corporation, which can be retained into the future should this item ever be raised again.

Rod Smith
The Strata Collective
E: rsmith@thestratacollective.com.au
P: 02 9879 3547

This post appears in the August 2024 edition of The NSW Strata Magazine.

Question: Do lot owners need permission before replacing their meter? What legal implications or recommended steps should the owners corporation take if this has occurred?

Answer: The owners corporation does not own the electricity meters.

The owners corporation does not own the electricity meters. They are owned by accredited meter providers from the Australian Energy Market Operator (AEMO). Assuming the old meter was replaced with a new meter taking up the same footprint, and there were no modifications to the common property meter board, we do not believe the lot owner needed permission to change the old meter to a new smart meter.

In many cases, the meter replacement is initiated by the customers’ energy retailer or the local energy distributor (e.g. in NSW, this is Ausgrid, Endeavor Energy or Essential Energy) due to regulated meter replacement programmes such as ageing or meter family type failures.

Assuming the above was applicable, and no modifications to common property occurred, site unseen, we do not believe the owner’s corporation is obliged to take any action.

Joseph Arena
Arena Energy Consulting
E: joseph@arenaenergyconsulting.com.au
P: 1300 987 147

This post appears in the July 2024 edition of The NSW Strata Magazine.

Question: Is the lot owner required to maintain their lot?

A lot owner in our building rents out their unit but does no maintenance:

• Two water leaks caused damage to the unit below.
• Water hammer originating in the hot water taps in the lot causes noise in surrounding units.
• Their balcony tiling has little grout left and is leaching water and staining the newly painted common property.
• Their balcony door leaks allowing water into the unit, and there is magnesite in the slab under the carpet.

These issues are causing angst to the other lot owners and potentially damaging common property. The owner has ignored requests from the strata manager via minuted decisions by the committee. Is the lot owner liable for damage caused by lack of maintenance?

Answer: Lot owners may be held liable for consequential damage to common property caused due to a failure to maintain lot property.

Yes, lot owners may be held liable for consequential damage to common property caused as a result of a failure to maintain lot property. Further, lot owners are under a statutory obligation not to use their lots in a manner that causes a nuisance or hazard to the occupier of any other lot.

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

This post appears in Strata News #656

Question: The strata manager has arranged work on a neglected lot and associated common property and divided the costs among owners. How do we ensure the owner of the neglected lot pays their proportion of the costs?

In our eight lot strata scheme, one rented lot is neglected and requires repairs. Our strata manager has organised an engineer and a building company for works. The repairs involve work to both lot and common property.

The lot owner’s proportion of the work outweighs the common property work. However, the strata manager has split the total cost among all the owners based on lot entitlement. The investor lot owner will pay less, and the remaining owners will cover their costs.

The executive committee and the engineer have alerted the strata manager to the lot responsibility on the strata plan, pointing out the owner’s responsibility. Still, our strata manager has yet to do anything to amend the cost allocation. What can we do?

Answer: If the common property is not the cause of the damage to the lot, the lot owner would be responsible for repairing or maintaining their lot property. The owners corporation should not be paying these costs.

If the common property is in disrepair and that disrepair has caused damage to the lot, the owners corporation would be responsible for repairing and maintaining the common property and the damage caused to the lot. The owners corporation has a strict duty to repair and maintain the common property under section 106 of the Strata Schemes Management Act 2015. It is liable for any reasonably foreseeable loss suffered by a lot owner due to the failure to repair and maintain the common property. Damage to a lot is a reasonably foreseeable loss.

If the common property is not the cause of the damage to the lot, the lot owner would be responsible for repairing or maintaining their own lot property. The owners corporation should not be paying these costs.

You should note that the strata managing agent is an agent of the owners corporation and does not necessarily make decisions of the owners corporation but carries out the decisions of the owners corporation and strata committee.

It is sometimes difficult to determine what is lot and common property. Some items, such as ceilings and waterproofing and tiles on bathroom floors and external walls are incorrectly assumed to be lot property as they are internal to a lot, when in fact, they are common property.

Matthew Jenkins
Bannermans Lawyers
E: enquiries@bannermans.com.au
P: 02 9929 0226

This post appears in the July 2023 edition of The NSW Strata Magazine.

Question: A developer owns a lot in our building. It has stood vacant for years and needs maintenance. The developer will not respond to emails. What do we do?

Our scheme has twelve residential units plus two commercial lots. The developer still owns three units. One unit has sat dormant for three years. The rear verandah is thick with pigeon faeces and is in a terrible state.

Our strata manager has contacted the developer but is unable to get responses to emails. The developer is uninterested in maintaining the unit. What can we do? We’d prefer not to go to the tribunal.

Answer: Consider mediation through NSW Fair Trading.

If you don’t wish to go to the tribunal, consider mediation through NSW Fair Trading or your local community justice centre.

Alternatively, you could lodge a complaint with your local council about the potentially hazardous, unsightly property.

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

This post appears in Strata News #646

Have a question about an owners requirement to maintain lot property or something to add to the article? Leave a comment below.

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• NSW: Q&A Duty to Maintain and Repair Common Property

Visit our Maintenance and Common Property OR NSW Strata Legislation

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