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I’m an owner of one < 20 double storey townhouses where each townhouse owns their roof space and their roof (the upper boundary of each lot is 12m above the site). The OC committee wants to raise $43k via special levy for roof restoration work and assume they can do it if they get 75% of owners to agree. In the past, I understand that the roof has been treated as common property for maintenance purposes such as fixing leaks, replacing broken tiles and gable repairs. Can a special levy be raised/approved to fix private property, even if it’s previously been treated as common property for maintenance purposes? Strata is in Victoria.
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The Victoria owners corporation Act allows the OC to repair lot property then charge the lot owners who benefit most from the repairs proportionately (Sections 48 and 49 – below).
For instance, for reasons related to the outward appearance of the scheme as well as savings accrued from combining several jobs, the OC might decide to undertake several roof repairs as one project, then charge the repairs back to the owners.
In fact you could argue that not to do so when that mechanism exists is fraudulent on the owners whose roofs don’t need repairs.
To be clear, the OC can repair lot property even when the lot owners are dragging their feet (Section 48), and then charge the costs back to the benefitting lot owners (section 49).
Obviously there is an element of compulsion in Section 48 which may not be required, but section 49 clearly allows the OC to charge the costs back to the lot owners.
The one difference may be if the roofs have been treated as lot property in the past in error, in which case there is no harm in correcting that mistake going forward.
48 Lots not properly maintained
(1) If a lot owner has refused or failed to carry out repairs, maintenance or other works to the lot owner’s lot that are required because—
(a) the outward appearance or outward state of repair of the lot is adversely affected; or
(b) the use and enjoyment of the lots or common property by other lot owners is adversely affected—
the owners corporation may serve a notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works.
(2) If a lot owner has been served with a notice under subsection (1), the lot owner must carry out the repairs, maintenance or other works required by the notice within 28 days of the service of the notice.
(3) If a lot owner has been served with a notice under subsection (1) and has not complied with the notice within the required time, the owners corporation may carry out the necessary repairs, maintenance or other works to the lot.
(4) An owners corporation may recover as a debt from a lot owner the cost of repairs, maintenance or other works carried out under subsection (3).
49 Cost of repairs, maintenance or other works
(1) An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.
(2) The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.
(3) The works referred to in this section may be to the common property or a lot.
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Would a resolution to formalise the treatment of the roof as common property for maintenance purposes be a possible solution?
That seems eminently fair and reasonable. I’m imagining a special resolution, at least, but it may require all owners agreeing to transfer ownership of their roofs to the OC, which means unanimity would be required.
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While the Owners Corporations Act 2006 VIC puts obligations on an OC to maintain its common property, I can’t see anything in the Act that excludes an OC from maintaining lot property if it decides to do so.
It’s actually quite commonly done in VIC.
For example the paint on some external parts of apartment buildings (the walls surrounding balconies) is technically lot property in VIC but an OC will typically decide paint them when it’s time to repaint the whole building.
For example an OC can decide to insure a whole strata complex that has no common property.
It can sometimes be cheaper or more appropriate for an OC to take on a responsibility if it affects all or most of the lots.
I’m not sure if a Special Resolution in VIC would be required.
The majority of owners (just over 75%) will benefit from the roof restoration works to be funded by the proposed special levy whereas the minority (just under 25%) have already had roof restoration work completed several years ago using existing accrued maintenance funds (prior to my purchase).
In VIC, when raising funds by Special Levy, an OC must consider the “Benefit Principle”. Basically that lots that benefit more should pay more.
So that’s what your OC should be doing.
If only 75% of the owners will benefit, then only those 75% should be levied for the works.