Apologies for the late reply. But I find that this forum is not very user friendly. It actually took me 10 minutes to find this thread to see if there were any replies to it … Anyway …
I assume the op is in NSW.
If so, some Tribunal and court decisions have held that section 62 of the Strata Schemes Management Act 1996 obliges an owners corporation to maintain and repair an addition to the common property even though it was unauthorised. So the op is quite correct, following those decisions, that the owners corporation would be prima facie under a duty to maintain and repair those unauthorised additions to the common property in accordance with its statutory duty to keep the common property in a state of good and serviceable repair.
An adjudicator can order that a lot owner who has made unauthorised changes to the common property (in contravention of s 65A or the by-laws) to restore the common property to its former condition. However, if the owner does not comply with the order the only thing that can be done at NCAT level is that owner being fined (and under the present law most Tribunal decisions have held that only one penalty application per breach can be maintained due to the wording of the Strata Schemes Management Act).
If the owner still doesn’t comply after the penalty application, then it is at least arguable whether an owners corporation would be able to obtain orders for access into the owner’s lot to carry out that rectification work to the common property at cost of that recalcitrant owner. This is due to the owners corporation only being allowed to enter the lot for specific purposes under the legislation (which seems to envisage a legislative intent of preserving fundemental freehold rights of a lot owner i.e. the ability to exclude others). There is another aspect of the legislation which does not seem to have been tested by many with respect to an owners corporation gaining access to a lot to restore common property to its former condition, but that is another story. The point is, that seeking adjudicator’s orders can be very time consuming, rack up legal costs and get no where in resolution of the actual dispute…
I think this is where the “toothless tiger” of NCAT (formally CTTT) derives from. So the op is quite correct in remarking that statements such as “we can make him take it out!” can be considered to be inept.
In any case, as to Whales’ post, even if a lot owner was “on notice” of unauthorised works to the common property by its predecessor in title, they still technically haven’t committed a breached of s 65A. That breach was by the previous owner, and it is arguable whether an application for adjudicator’s orders could be made against that the previous owner for restoration of common property.
And, I am not aware of any “simple online resources” to explain this … it is quite technical and the owners corporation would be advised to promptly seek legal advice in relation to the matter.