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That’s a pretty comprehensive reply to a tricky question – I’m impressed. The strata manager’s opinion about standard practice and precedents is, indeed, opinion rather than legal advice.
My first thought is to run this past your strata insurer. They may just pay up, but unwillingness to pay on their part is not an indication of strata scheme liability, rather a reflection of the terms of you insurance policy.
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Get the SM to use SMATA
Pardon my ignorance, but what is Smata? Some kind of accounting and management software. Getting a strata manager who doesn’t provide basic billing information to change their software is a big ask.
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For what it’s worth, this is what the Flat ChatBot says:
That’s important evidence, but the waterproofer’s statement alone doesn’t establish who is liable or whether the guarantee was legally cancelled. Ask for their view in writing, including the warranty terms, the specific tiling work said to have invalidated it, and any inspection findings. Get an independent building consultant or waterproofing specialist to identify the leak’s cause and the work needed.
NSW guidance treats bathroom work requiring waterproofing as a major renovation needing owners corporation approval. Check the strata records for the previous renovation’s approval and any by-law allocating ongoing responsibility. Flat Chat’s 2020 bathroom-renovation article discusses membrane responsibility and renovation by-laws, but it is commentary and may not reflect current rules: ‘Dream’ bathroom project: the nightmare begins. Strata renovation rules | NSW Government+1
Because this involves property damage and possible time limits, take the report, warranty, renovation and sale records to a NSW strata/property lawyer promptly.
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This is what the Flat Chatbot said when asked this question:
I wouldn’t assume a separate by-law is required—or that one would solve enforcement. Flat Chat reported a NSW case where an owners corporation used a by-law requiring owners to comply with a development consent; that by-law was declared invalid in that particular car-space dispute. It’s a useful caution, not a ruling on your renovation or a general answer about DA enforcement.
The NSW Government’s renovation guidance covers strata approval, but the sources I found don’t settle who can enforce the specific DA conditions here. Ask the council in writing to identify the relevant conditions and explain its position on enforcement. Given the potential cost and legal complexity, have a specialist strata or planning lawyer review the DA, the proposed work and any strata approvals before deciding whether to pursue a by-law or another route.
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Actually, on further thought, you may better off having had this handed back to you instead of expecting council to run the case. You don’t want your building’s needs to get tangled up in the priorities of a bureaucracy that probably doesn’t even begin to understand what’s important to you. But I still don’t think you need a separate by-law. The rule on superior laws applies whether or not you have a by-law saying that.
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The strata manger or committee is probably not responding to your son (or you) because they erroneously believe they don’t have to listen to tenants, only owners. This is out-of-date thinking. Section 226 of the NSW strata Act defines an ‘interested person’ in terms of making an application to the Tribunal as an “occupier of a lot”.
Section 118 of the Act says this:
“An owners corporation for a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies. Maximum penalty: 5 penalty units.
An owners corporation is to carry out work related to its functions under this section at its own expense and may, for the purposes of this section, carry out work on any part of the parcel.’
Your son should contact his landlord and ask them to contact the strata committee and strata manager, pointing out that the law requires them to install the window locks.
So in theory your son could by-pass the landlord and simply suggest to the strata manager, quoting section 118, that they arrange for locks to be fitted or he will seek the imposition of $550 fines at the Tribunal.
Failing that, he could go and buy locks that don’t require drilling or screws at a hardware shop or Bunnings for less than $6 per pair. Personally, I would be making a trip to a hardware store, get it done and deal with any unlikely consequences later.
And just for future reference, when you say you wrote to “the strata” did you mean the strata manager or the strata committee?
Government legislation has changed making it obligatory for strata schemes to include window safety in their annual inspections. But that assumes the scheme is fully functional and actually attends to these responsiblities.
By the way, this is what our Flat ChatBot said when, as an experiment, I ran the question through it:
That’s a serious fall risk. Until it’s made safe, keep the window closed and ensure your son’s child cannot reach it. In NSW, a lock is required when the window’s lowest opening is less than 1.7 m above the inside floor and that floor is at least 2 m above outside ground level; the lock must limit the opening to 12.5 cm. A flyscreen is only an alternative if it can withstand very strong outward pressure—an ordinary flyscreen may not be enough. NSW Government safety guidance
The NSW guidance says the owners corporation generally pays to install or repair required window locks, unless the scheme’s by-laws provide otherwise. As your son is the renter, ask him to write urgently to his landlord or agent, copying the strata manager, and request an inspection and a written response. The landlord or agent can raise it formally with the owners corporation; ask NSW Fair Trading for guidance if it remains unresolved. Flat Chat has an older discussion of compulsory window locks, but it may be out of date, so rely on the current government guidance. Safety rules for strata common property | NSW Government.
This is interesting because it states the law but doesn’t address the social component – your son doesn’t want to upset his landlord. That’s something he’s going to have to face if he wants his kids to be safe.
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- This reply was modified 3 days, 15 hours ago by -.
If your strata has adopted the model by-laws (provided by the NSW Government), it says that the owners corporation is responsible for cleaning them externally when it is not safe for the lot owner to clean them:
Also, I believe the model by-laws are defaults in cases where the model by-laws have not been adopted and there is no equivalent by-law on the books
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There was a case a few years ago generally known as the Elizabeth Bay Gardens dispute, which went to the NSW Court of Appeal:
- Supreme Court (first instance): Julian Edward Canny v The Owners–Strata Plan No 4983 [2018] NSWSC 80
- Court of Appeal: The Owners – Strata Plan No 4983 v Canny [2018] NSWCA 275
The building is the 15-storey, 78-apartment Elizabeth Bay Gardens at 15-19 Onslow Avenue. Parking lots were bought, sold and used by residents and non-residents from 1970 until 2014, and some sold for as much as $220,000. In 2014 the owners corporation passed a by-law that excluded non-resident owners of parking lots from using their spaces, and they were locked out. The strata committee’s by-law was based on the development consent. The 23 affected owners sued in December 2017 and won in February 2018, and the by-law was declared invalid.
On appeal, the court found that unclear wording in the development consent about which “occupants” could use the spaces had to be resolved in favour of the non-resident owners. The owners corporation was ordered to pay costs, and those costs were to be levied only on lot owners other than the respondents. We covered it here: Failed parking ban costs owners a truckload of cash. Worth noting, the excluded parkers OWNED the spaces.
I have heard of another case where the non-resident owner of a car space – I think he’d let his flat but not the parking space – and insisted on his right to continue using the common property swimming pool and gym in the building. Not sure how that ended up.
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Section 139(2) of the NSW Strata Schemes Management Act says a by-law must not prohibit or restrict transfers, leases, mortgages or other dealings related to a lot. If the parking space is a separate lot or part of a lot, the OC may hit that speedbump if they try to restrict car space letting to residents only. If the space is allocated exclusive use common property (as many are) it could be a different story. Security is just as compromised, if not more so, by short-term holiday lets but they were permitted under S139 before specific laws were introduced to curb them.
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If it’s in the strata management plan – the original document setting up the way the building is to be run – then that would require a super-majority of 75 per cent to pass the changes. Even then, the person whose windows are being cleaned could take the block to court for “fraud against a minority” which is when a strata scheme uses the democratic process to make a decision that unfairly impacts materially on individuals with less voting power.
I would send the committee an estimate of what it would cost them to fight the issue at the Tribunal and in court, compared to cleaning the windows.
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I would be careful about the wording and perhaps change it to “current development controls” or something like that. However, if the work requires a by-law, you can cite the part of the law that you quoted about by-laws not superseding superior law, without requiring a separate by-law to do so.
Your next email or phone call should be to a strata lawyer.
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One point is that strata cannot claim insurance for damage to something that is not part of the common property or that was not a result of a strata problem, for example failure of waterproofing.
Did you mean failure of waterproofing IS covered by strata insurance?
Waterproofing on balconies, in bathrooms and on roofs is common property, generally speaking, in NSW, unless and owner has taken responsibility for them through a by-law allowing renovations.
In any case, residents should have home and contents insurance to cover their own property. Let the insurance company sort out liability – it’s too hard for mere mortals.
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Our major problem is with showers, which are onto internal walls, but these walls are classified as common property.
This is the most common defect in new buildings and renos because the work done is literally covered up and is usually only revealed later, Former building commissioner David Chandler targetted this (among other flaws) by having inspectors rip up tiles to check the waterproofing is randomly selected bathroom in new blocks. If too many were found to be defective, he ordered every bathroom to be re-waterpoofed. No wonder he was targetted by dodgy developers and their cronies in the NSW Liberals.
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