UNAUTHORISED WORKS – WHO IS RESPONSIBLE FOR REPAIRING THEM
(An article by Adrian Muller of JS Mueller & Co)
This is an interesting and frequent question for strata managers and committee’s alike. In this issue we re-publish an article by JS Mueller and Co which provides the answer.
Introduction:
An owners corporation must in general, properly maintain and keep in good repair all common property in its strata scheme. But what happens when an owner makes alternations or additions to the common property without the consent of the owners corporation? Who is responsible for maintaining and repairing those unauthorised alternations and additions? The owner responsible for them (who may have sold his unit long ago), the current owner, or the owners corporation?
An Example
Take the classic case of an owner who decides to renovate his bathroom without the consent of the owners corporation. During the renovation, the owner re-waterproofs his shower tray. Several years later, after the owner has sold his unit, the shower tray allows water to leak into the unit below because it was not re-waterproofed correctly. Who is responsible for fixing the defective shower tray?
A Typical Approach
In the case of the defective shower tray, many owners corporations will assume that because the shower tray is common property, they are responsible for repairing it even though they did not install it. On the other hand, some owners corporations will take the view that because the shower tray was installed without their consent, the owner responsible for installing the shower tray, or the current owner, must fix it. Which is the correct?
A Duty to Maintain Unauthorised Alterations to Common Property?
However, the position is different in relation to the maintenance and repair of alterations or additions to common property which have been undertaken by an owner without the consent of an owners corporation. This is because the courts have held that the duty of the owners corporation to maintain and repair common property:
Involves consideration of the attributes of the original common property at the time the strata plan is registered in order to determine whether or not a specific part of the common property is in need of maintenance, repair or replacement: see The Owners Strata Plan 50276 -v- Thoo [2013] NSWCA 270;
Must only take into consideration any alteration or addition that is made to the common property in accordance with the strata legislation when determining whether or not any common property that has been altered or added
to requires maintenance, repair or replacement: Thoo;
Centres on the preservation of the original fabric of the building as constructed; see The Owners – Strata Plan 21702 -v- Krimbogiannis {2014}
Focuses on preserving the original fabric on the common property by not removing, replacing or destroying the original common property (without proper authority): Krimbogiannis;
Requires the owners corporation to restore to its original condition any common property which has been altered, replaced or destroyed (without proper authority); Krimbogiannis;
Therefore, does not require the owners corporation to repair common property that has been added to the building without its consent; Krimbogiannis
In other words, in order to determine if some part of the common property must be repaired or replaced, one must look backwards and compare what currently exists with what existed at the time the strata plan was registered (which allows one to ignore unauthorised changes to the common property), and if the common property is operating as it was originally intended to, then there is generally no need to repair or replace that common property: Thoo.
Krimbogiannis
The Krimbogiannis case explains why an owners corporation is not responsible for repairing an item of common property which was installed without the consent of an owners corporation and has become defective.
This case involved the Connaught building in Sydney. Long after the strata plan for the Connaught was registered, the owner or tenant of lot 6 removed a glass panel from an external common property wall of the building and replaced it with a glass sliding door (door). This work was done without consent of the owners corporation. The glass sliding door allowed the operator of the cafeĢ which traded from lot 6 to accept deliveries through the door.
The door was kept in good repair. However, the owners corporation wanted the external wall to be returned to its original condition. The tenant of lot 6 refused to do so. The owners corporation applied to an Adjudicator and then the Consumer, Trader and Tenancy Tribunal for an order for access to lot 6 to enable it to remove the door and reinstate the external wall to its original condition. The owners corporation’s application for the access order was rejected and an appeal to the District Court was unsuccessful. The owners corporation sought judicial review of the District Court’s decision in the NSW Court of Appeal.
The Court of Appeal concluded that in order to be entitled to an access order, the owners corporation had to show that it needed to gain access to lot 6 to properly maintain or keep in good repair the common property. The court concluded that the duty of the owners corporation to maintain the common property centred on preserving the original fabric of the common property. This meant the owners corporation had a duty to reinstate the external wall to its original condition by removing the door that had been installed without its consent. For that reason, the Court concluded that the owners corporation was entitled to an order to give access to lot 6 to restore the external wall to its original condition.
What does this all mean?
The position is generally as follows;
An owners corporation is not responsible for repairing defects in alterations or additions to the common property that have been made by an owner without its approval;
Instead, the owners corporation is responsible for removing any alterations or additions to the common property that have been made by an owner without its approval and restoring the common property to its previous condition;
If an owner or his or her predecessor wants to retain unauthorised alterations or additions to the common property, a by-law needs to be made to permit the owner to keep those works and that by-law should impose on the owner the obligation to maintain and repair the works.
The Result
This analysis leads to some surprising results. To take our earlier example of the bathroom renovation done by an owner without owners corporation approval, the owners corporation is not responsible for repairing the defective waterproofing in the shower recess. If the owners corporation wants to force the owner to repair the defective waterproofing this should be done by either:
A bylaw being made which permits the bathroom renovations to remain on certain conditions including the condition that the owner is responsible for the ongoing maintenance and repair of the renovations including the waterproofing; or
An order being obtained from NCAT to require the owner to repair the defective waterproofing.
Conclusion
An owners corporation is generally not responsible for repairing defects in works that have been done to the common property without its consent. If the owners corporation is prepared to allow the unauthorised works to remain, a by-law should be made, with the consent of the relevant owner, to permit the works to be kept on certain conditions. Those conditions should include a condition requiring the owner to maintain and repair the works.
If the owners corporation is not content to allow the unauthorised works to remain, then an application should be made as soon as possible to obtain an order by NCAT to require the occupier of the lot to give the owners corporation access to allow it to reinstate the common property to its previous condition or to require the owner responsible for the works to remove the unauthorised works and reinstate the common property to its previous condition.
STRATA ARMY – HELP US LOBBY THE GOVT FOR REAL CONSUMER PROTECTION
Due to the issues with Opal Towers and Mascot Towers – our industry association (SCA – NSW) has formed a petition they will use to lobby the NSW Govt for changes that will help avoid these structural issues in future high-rise constructions.
Whilst there is an Inquiry, it is feared it is just a token gesture, to look like something is being done. It is quite possible it just a delaying tactic to buy time, in the hope it will be dealt with in new federal legislation. Not due out for a few years. The reason we hold this concern is two very knowledgeable people have already provided their reports to the Govt, but nothing has been done.
We need to drive home the need for real change. Please lend your support to The Strata Army and help us lobby on behalf of all unit owners for better consumer protection, by simply going to this link – and ticking the two boxes. Thank you in advance.
https://www.nswstrataarmy.com.au/
SOMETHING GREEN – RECYCLING CLOTHING AND ACCESSORIES
We recently came across this wonderful organisation – Clothing Away (http://clothingaway.com.au) who are donating their profits to charities including Youth Off the Streets and Westmead Children’s Hospital.
They provide a bin - which is 660 ltr (ie the same size as a Council rubbish bin) where residents can place unwanted items such as manchester, footwear, handbags and clothing and accessories for their collection and re-use.
They will come weekly or fortnightly, and remove by hand the items in their bin, and take it away in a Hi-Ace van.
Items of clothing are thrown out because people can’t be bothered to make a trip to a charity’s bin or shop so it would be a shame to miss this opportunity to help those less fortunate in society. If you would like us to arrange such a bin – on a trial basis - please email us on mail@prostrata.com.au