teamwalrus is in NSW, so I’m afraid that I have disagree with you KWP (and not just because he/she may be an oceangoing colleague).
In my opinion (and experience) un-consented changes or additions to the Common Property are difficult to manage, not least of all because a vigilant Owners Corporation (O/C) should reasonably be aware of those at the time that they occur or within a short timeframe thereafter, and it’s hard therefore for an O/C to require some restoration of its Common Property or a reversal of whatever changes or additions were made and/or to substantiate an application along those lines to the NSW Civil & Administrative Tribunal (NCAT) long after the event, particularly so if the person who made the change or addition is/was a tenant or a new Owner (i.e. not the one who made the changes / additions).
As a more direct response to teamwalrus’ post, anything that’s attached or added to the Common Property by or with the consent of a Lot Owner forms part of that Common Property, and in the absence of a special resolution taken at a General Meeting that grants consent to those works and, with the prior written consent of the Lot Owner, a Special By-Law making them and subsequent Owner/s responsible for all on-going maintenance, repairs, and replacements of whatever’s been added or attached, then that responsibility remains with the O/C.
So the O/C is responsible immediately, although it can mount a successful argument against a Lot Owner to have them restore the Common Property to its original state and in default to undertake those works itself and recover all applicable costs of doing that IF the Lot Owner who undertook or consented to the works (e.g. by a tenant) is the current Owner. Although even then, a Lot Owner could claim that works were undertaken without their consent by a tenant (past or present) and that they weren’t aware of them – although that would be harder to substantiate at the NCAT given that regular inspections of rental properties are supposed to occur.
Beyond that and in general terms, where the Lot has been sold and so the current Owner is not the person who undertook or consented to the additions / changes to the Common Property, then the O/C is stuck with the responsibility for all on-going maintenance, repair, and replacements unless it can convince a cooperative current Owner to agree to assume that responsibility retrospectively, and ideally to have that enshrined in a Special By-Law.
So in summary this whole topic is messy, and particularly so in Plans with high occupancies by tenants who may themselves make additions / changes to the Common Property, and moreso are disinclined to make an O/C aware of such works by others.
The solution that I adopted for our self-managed plan (where I am Secretary) was firstly to place an Item about the need for all Owners to themselves comply and to ensure compliance by their tenants with Sect 65A of the NSW Strata Schemes Management Act on the Agenda of every AGM, secondly to create a “Register of Changes and Additions to the Common Property”, thirdly to give all Owners a 6 month moratorium to advise me of any and all changes / alterations to their Lot/s irrespective of who did them or when, and lastly to specially resolve (i.e. >75% in favour) at the subsequent AGM to create and Register a Special By-Law providing that any additions / changes to the Common Property that aren’t shown in the “Register” (incl. those made by the O/C) are entirely the responsibility of the Owner/s from time-to-time of the Lots concerned.
OK – it’s work for me to keep the Register up-to-date, but that’s a hell of a lot easier that trying to assign maintenance and repair responsibility of a faulty TV aerial, air-conditioner, ceiling fan, or expensive floor tiles that have cracked to some less than cooperative Owner long after the event that added those to the Common Property!
Woops – Scotty and me posted at the same time (but similarly as usual) – so I’ll take the opportunity to now add that an O/C should make persons conducting a Strata Search (optional) or a Solicitor / Conveyancer requesting a S109 Certificate (mandatory) where both are pre-purchase, of any un-consented changes or alterations affecting the Lot; I always do!
Whale 1410