Question: Can a current owner be held liable for a previous owner’s unauthorised improvements?
Answer: Yes.
Bodies corporate have a legislative obligation to enforce their by-laws.
Enforcement of by-laws involves issuing contravention notices to the owner and/or occupier of a lot in the scheme. However, in some instances, a previous owner has contravened the by-laws and installed structures and/or made alterations without prior approval, with these structures/alterations remaining in place following the sale of the lot. As the contravening party is no longer an owner or occupier in the scheme, the body corporate’s only option is to take enforcement action against the current owner.
Adjudicators have consistently held that bodies corporate are entitled to issue contravention notices to the current owner of a lot for breaches caused by a previous owner. For example, in The Peninsula [2021] QBCCMCmr 121 (17 March 2021), the Adjudicator relevantly stated:
“[139] I agree with the applicant’s arguments that a lot owner may ‘inherit’ a situation that may constitute a by-laws [sic] contravention. My position is formed after considering the earlier precedents. My position is also formed on the basis of logic.
[140] There is no logic to an argument that if one lot owner is found to breach a by-law today by erecting an unapproved fence (where approval is required), for example, but another who purchases a neighbouring lot tomorrow with an identically unapproved fence already in place could enjoy its use without sanction. That would be contrary to the spirit and intent of the legislative regime. Owners need to be treated equally, for what they might see as good and bad. When owners purchase properties in such circumstances they are taken to be cognisant of the provisions of the CMS and by-laws and if their property, as in this instance, is non-compliant, they must remedy the situation”.
In light of the above, owners should be diligent when they purchase a lot to make sure that any improvements have been approved.
This post appears in Strata News #648.
Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000