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I am the chairman of an SC in NSW. The complex consists of 20 townhouses, the majority of which are owner occupiers. One of the townhouses undertook internal renovations in 2006 (no by-law prepared/required?) before selling to the present owner. The property is rented, as the owner is overseas, and recently the rental agent contacted the Strata Manager to advise of a leaking hot water system (HWS). It was then discovered that the HWS (normally an owner’s responsibility) had been relocated to the common property roof space, obviously without approval. The Strata Manager has paid for replacement of the HWS taking the view that as it is on common property it is now Strata’s responsibility.
I am aware that in certain instances where items have been placed on common property without approval and a repair is required, Strata may elect to remove such an item, rather than repair it. In the case of the HWS it was obviously not practical to remove it or return it to its original position.
How practical/legal would it be to prepare a by-law stating that “any previously unauthorised additions to common property are now the owner’s responsibility to maintain or replace”
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If the owner can show you in the minutes where the Body Corp committee agreed to allowing this I’d cross that bridge. But I’d doubt they could so it surely remains the owner’s issue and cost? Can you imagine the precedent this sets for future issues? If the Strata Manager has paid for an owners recent cost they would now be required to seek reimbursement from that owner for that as well as any other associated repair costs. The Body Corp committee now need to consider, and vote (if in fact they can make this decision/), on retrospectively allowing the owner to have that hot water system on common property (and if so, I imagine the system has to be isolated for fire protection etc at owners cost). If they can not make that decision within their limits they would likely require the current owner to remove the hot water system from common property and restore it to within their own lot. You need more professional advice than just in here. Cheers, C.
You wouldn’t install any equipment or appliances on property that is not your own so the same goes for installing it on common property as that is owned by all owners not just one. I think I would be requesting the owner , through the rental agency, to sign a document accepting full responsibility for any damage the HWS does to the common property as well as for their own HWS ( after discussing this at the SC and then the OC of course). It seems that you also need to speak to your Strata Manager perhaps requiring that any unusual costs be discussed with the treasurer before payment is made.
@Flame Tree said:
You need more professional advice than just in here.You mean in your post or in this website? Thanks for the vote of confidence.
But seriously, the strata manager needs some counselling on what they should and shouldn’t be doing with strata scheme funds. And one of the things they shouldn’t be doing is repairing private property, regardless of where it is situated.
Installations that are left on common property without permission become the responsibility of the OC when the owner who put it there sells and moves away.
But the smart thing for the OC to do is to tell the new owner to either take it back, have it removed, or come to an arrangement with the OC (via by-laws) to take over its care and maintenance permanently as well as compensating the strata scheme for the use of common property.
The strata manager clearly doesn’t understand how strata works … which is a bit of a problem, you’d think.
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“You need more professional advice than just in here.” Man, most of the time I’m warning folks against just relying on my own off the wall advice 😉 and I did once hear that, outrageously, you can’t always trust what you find on the internet. 😉
Mr Sensitivity here. Just a wee joke. Like you, I always recommend talking to an experienced strata lawyer for anything other than the most minor issues.
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Haha, yes all good. I also like to haunt my Office for the Commissioner of Body Corporate in Qld for a quick heads up on the facts and relevant Act advice. It’s a worthy free call and always know if I have an issue, or I am the issue!
@Paddy said:
Thanks Jimmy. As you said “Installations that are left on common property without permission become the responsibility of the OC when the owner who put it there sells and moves away.” That was my understanding also and therefor the Strata Manager was correct in paying for the replacement.Not necessarily. There were other options, such as the strata manager saying that unless the lot owner resumed responsibility for the water heater, then the owners corp would remove it. The lot owner can’t have their ownership cake and eat it.
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@Paddy said:
Jimmy, I have just noticed a comment which you made on 13 June 2018 in reply to a post on “Common property or not?”. The post concerned a cupboard which was attached to a wall in a shared garage. You stated “…if it’s not on the plan and there are no by-laws about the strata taking it over, then it isn’t common property”.
Yes I have just revisited that comment and I had overlooked the part about the owner having inherited the “unofficial” cupboard from a previous owner. That said, the resolution is simple – if the cupboard now belongs to the OC and the lot owner doesn’t want to pay for repairs, then the OC can remove it. It’s either their cupboard or it isn’t.
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Hi, if you have a AGM planned for 3 weeks time you will be too late to now get this written up and distributed to owners as a Motion, unless the Committee allow it. The meeting Motions need to be out within a minimum period so owners who won’t be at the meeting can still vote on them. That’s how it is in Qld so I assume there will be something similar where you are.
@Flame Tree said:
The meeting Motions need to be out within a minimum period so owners who won’t be at the meeting can still vote on them. That’s how it is in Qld so I assume there will be something similar where you are.Technically in NSW motions can be submitted up until the agenda is published. However, the reality is that the Strata Manager or secretary needs enough time to include them in the document (and that depends on the size and complexity of the agenda).
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@Paddy said:
Can we propose a by-law, to be voted on at the AGM in 3 weeks time, which states that any previously unauthorised additions to common property are now the present owner’s responsibility to maintain or replace? It would seem possible provided 75% approval.Not really, at least, not without the written approval of each of the owners concerned.
Under section 108 “a special resolution that … provides that the ongoing maintenance of that common property … is the responsibility of the owner has
no effect unless … the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner …”In other words, you can’t pass a by-law imposing responsibility for the maintenance of a privately owned property, currently on common property, without the owners concerned agreeing in writing.
So you could get them to agree first, then pass the by-law required to make it official. Or you could, possibly, in theory, pass a catch-all by-law and then get owners to sign up for it (with the threat of losing the installed property if they don’t).
Either way, you don’t have time to do it before your AGM – but you could pull something together and have an EGM once all your ducks are lined up.
I think you need to talk to a lawyer, either way.
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