@mattb said:
I agree with your stance on this … however, all you need to prove is that OC didn’t remove the railing itself, nor did the OC grant permission to the previous lot owner to remove the railing.
I also agree that the claim is outrageous but I disagree that the OC has no liability if they didn’t approve the changes. The strata manager is absolutely right; even if the Owners Corp hasn’t allowed the changes to the balcony, they are liable for its upkeep. In fact, it could be argued that permission was tacitly given in so far as a balcony must be pretty obvious from outside but was allowed to be changed without comment or complaint.
The current owner has no liability as they bought the property in good faith. The only hope that the OC MIGHT have is to effect the repairs (as they are legally obliged to do) then pursue the previous owner in a civil action for damaging common property. I’ve never heard of that being done and I’m not at all sure of its likelihood of success but if the previous owner is no longer in the strata scheme that may be your only hope. Otherwise, suck it up and tighten up your compliance procedures for future reference.
We’ve encountered cases where, for instance, unauthorised changes to common property were made – sliding doors changed to bi-folds – which could only have been seen if you took a boat out into the bay at Bondi. When the bi-folds failed, the OC’s only options were to repair them (at considerable cost) or restore the sliding doors at their own expense.
This is a very compelling argument for NEVER letting changes to common property go through on a nod and a wink. It’s also why, excessively bureaucratic as it may seem, you need changes to common property within a lot to be approved by a by-law that shifts the responsibility for continuing upkeep to the owner making the changes.
Also, I would suggest that every time a strata property is put up for sale, at least one member of the EC should have a quick squizz at viewings and make sure that there’s something on the record that Common Property has been altered and that the current or subsequent owner is responsible for its repair.
A quick EC meeting issuing a Notice To Comply would put the issue on the record, at the very least.