NSW: Upstairs owner refuses access after causing ceiling damage — what can we do?

Question: The ceiling of our unit has been damaged by an upstairs unit. The upstairs owner will not allow access to the lot and insists the issue is the responsibility of the owners corporation. We are unable to live in the unit. Where do we stand?

We have recently purchased a ground floor unit. There is damage to the ceiling in one bedroom. The damage originated in a unit on the top floor. Damage extends to a first floor unit and my unit. The owner of the top floor unit will not make the unit available for inspection to assess. They are adamant strata should pay, while strata say it’s the unit owner’s responsibility. Meanwhile, we have an unliveable unit and no time frame for assessment, let alone repair. Where do we stand?

Answer: The strata manager does have an avenue of recourse through the Tribunal if the lot owner denies further requests for access.

The strata manager does have an avenue of recourse through the Tribunal if further requests for access are denied by the lot owner.

Relevantly, section 122 of the Strata Schemes Management Act 2015 (“the Act”) provides in subsection (2) that an owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel to determine whether any work is required to be carried out by the owners corporation in accordance with this Act.

It appears that the owners corporation is seeking to make a determination if it is required to comply with section 106 of the Act regarding the duty to maintain and repair common property.

That section also allows the owners corporation to obtain an order for access from the NSW Civil and Administrative Tribunal.

Section 122 relevantly provides:

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.

Once access is provided, the owners corporation could consider engaging a consultant to determine the source and liability issues.

Liability limited by a scheme approved under professional standards legislation.

Pierrette Khoury
Khoury Lawyers
E: pierrette@khourylawyers.com.au
P: 0415 459 486