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: Who is responsible for contacting the Council about a neighbour’s composting and hoarding that creates odour, attracts vermin, and prevents the use of common areas?
• 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: Who is responsible for contacting the Council about a neighbour’s composting and hoarding that creates odour, attracts vermin, and prevents the use of common areas?

I live in a townhouse-style unit where the lots are side by side. My neighbour is a hoarder and has stacked around 20 milk crates of decomposing compost against our joint fence. They have also filled about 80 milk bottles with compost. When the bottles are cut open, the smell becomes worse. The composting is creating a foul odour, and there is also a strong chemical smell from old liquid fertiliser.

Our courtyard is covered in rat droppings every morning because the odour attracts them, and this is preventing us from using our courtyard. The neighbour has ignored my complaints. The strata manager stated that there is no specific by-law covering this, but it could fall under the categories of nuisance or hazard. They recommended that I contact the Council instead of applying to NCAT, as the NCAT process would be lengthy and costly. A committee member also told me that Council should handle this because it is a health issue. Is this true, and is it fair for the strata to ask me to deal with this problem on my own?

Answer: The owners corporation can act, but you also retain individual rights if it does not.

Under NSW strata law, there are two important points to keep in mind.

1. Obligations under the Strata Schemes Management Act

Section 153 of the Strata Schemes Management Act 2015 provides that:

“An owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot must not use or permit the lot to be used in a manner or for a purpose that causes a nuisance or hazard to the occupier of any other lot”.

The situation you describe may fall within what could be considered a nuisance or a hazard for the purposes of section 153. The owners corporation has standing to take enforcement steps if it wishes. This might include issuing a “notice to comply” in relation to a by-law, which is a separate mechanism, or seeking orders from NCAT under section 153. An individual lot owner also has the right to apply directly to NCAT under section 232 for orders requiring compliance with section 153, so it is not always necessary to leave it to the owners corporation.

2. The role of Council and health authorities

Local councils generally have stronger powers when it comes to environmental health risks. Councils can investigate hoarding, vermin infestations, and offensive odours under the Public Health Act 2010 (NSW) and local orders powers. They can issue cleanup notices and, if necessary, carry out the work themselves. These are enforcement powers that an owners corporation does not have.

3. What happens if the owners corporation does not act

Sometimes, lot owners feel more supported when their owners corporation takes the lead on issues like this, rather than being told to pursue it on their own. That said, if the owners corporation does not take the steps you would like, you still have personal avenues available through NCAT or Council. In a sense, this is similar to living in a Torrens title home: if your neighbour is causing a health or amenity issue, you do not have a strata scheme to lean on — you would need to pursue it directly with Council or through legal channels. In strata, both options exist: the owners corporation can act, but you also retain individual rights if it does not.

In summary

• The neighbour’s behaviour may amount to a breach of section 153 of the Act.
• The owners corporation can issue a notice to comply or pursue NCAT orders, and you, as an individual owner, can also apply to NCAT.
• Council is another practical option, given their powers around health and safety.
• If the owners corporation does not take the lead, you are not without options — you can still pursue the matter directly, much like a homeowner would in a non-strata setting.

Tim Sara
Strata Choice
E: [email protected]
P: 1300 322 213

This post appears in Strata News #760

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: [email protected]
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: [email protected]
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: [email protected]
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: [email protected]
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: [email protected]
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.

Embed

Read next:

• NSW: Rain, Rain and More Rain… Revisiting the Basics of Responsibility to Maintain Common Property
• NSW: Who is Responsible for Mould in Strata Living?
• NSW: Q&A Duty to Maintain and Repair Common Property

Visit our Maintenance and Common Property OR NSW Strata Legislation

Looking for strata information concerning your state? For state-specific strata information, take a look here.

Are you not sure about some of the strata terms used in this article? Take a look at our NSW Strata Glossary to help with your understanding.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.