@Whale said:
KWP – actually the NSW Act doesn’t definitively state that the responsibility of any alterations to common property transfers to the O/C once a lot is sold, that’s just how it’s generally interpreted (including by me).
That’s not really the case.
If works have been carried out in contravention of section 65A, that is, if there has been an addition to the common property without a special resolution specifically authorising that addition, then, prima facie, some cases have held that the owners corporation is responsible for maintaining that addition.
The conclusion is said to follow from section 5 of the Strata Schemes (Freehold Development) Act 1973 which defines “common property” to be “so much of a parcel as from time to time is not comprised in any lot”. As to the meaning of “parcel”, the same Act defines it to be:
“(a) except as provided in paragraph (b), the land from time to time comprising the lots and common property the subject of a strata scheme, and
(b) in relation to a plan lodged for registration as a strata plan, the land comprised in that plan.”
And “lot” is defined to mean “one or more cubic spaces forming part of the parcel to which a strata scheme relates, the base of each such cubic space being designated as one lot or part of one lot on the floor plan forming part of the strata plan, a strata plan of subdivision or a strata plan of consolidation to which that strata scheme relates, being in each case cubic space the base of whose vertical boundaries is as delineated on a sheet of that floor plan and which has horizontal boundaries as ascertained under subsection (2), but does not include any structural cubic space unless that structural cubic space has boundaries described as prescribed and is described in that floor plan as part of a lot. “
Thus, it follows from definitions that in a strata scheme there can only exist lot and common property.
Section 62 of the Strata Schemes Management Act 1996 says:
“(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.”
Thus, subject to a special resolution being passed under s 62(3) or a by-law being made in accordance with s 65A(4) which both must satisfy certain requirements (or an exclusive use/special privilege by-law being made under s 52 which imposes the responsibility of maintaining the common property to the lot owner(s) specified in the by-law), an owners corporation is responsible for maintaining common property under s 62, even if, as the cases say, it is common property which has been added to without proper approval.
In the case that a lot owner has breached s 65A and have done certain works which have added to the common property, that owner, whilst he is still owner of the lot, could be ordered by a strata schemes adjudicator to restore the common property into its former condition.
However, if that lot owner sells his unit and the unit, with the unauthorised works, is bought by another person then that new owner technically hasn’t committed a breach of s 65A or the by-laws of the strata scheme (which generally prohibit works from taking place unless if there is the requisite approval).
@Whale said:
After adding-in all the changes to Common Property that the O/C had itself made over the years, the Register was then closed-off, and at the next General Meeting it was specially resolved to Register a Special By-Law stating in very specific terms that any changes, alterations etc not shown from time-to-time in that Register were un-consented by the O/C, and that the responsibility for maintaining and repairing those was the responsibility absolutely of the Owner/s from time-to-time of the Lot/s concerned.
Without having seen the by-law, I would just add a few remarks. Do you receive written consent from those who have agreed to accept the responsibility of maintenaning that common property?
Here is an excerpt from the Minister’s second reading speech with respect to the 1987 amendments to the Strata Titles Act 1973 (the precedessor legislation to the Strata Schemes Management Act 1996):
“The proposals also include a number of measures to protect the interests of both individual proprietors and bodies corporate. The first is that for such a by-law to be valid, the body corporate must first obtain the written consent of the proprietors who will be given the exclusive use of the common property. This provides a proprietor with a safeguard against unknowingly being given responsibility for the maintenance of part of the common property. For example, a proprietor absent on vacation might otherwise return to find that he had been granted exclusive use of the roof of the building with attached responsibilities for its upkeep and maintenance.”
It seems like the said by-law in your self managed strata schemes infringes upon the intent of the legislature in this regard. I will not make any comments as to its validity other than this.