KWP – sweeping statements may be your forte on this Forum (
) but I acknowledge that mine is being the arch-conservative.
So when I read Sect 65A of the NSW Strata Schemes Management Act (the Act) in the context of strata-savvy / bush-lawyer Owners and the often inconsistent rulings made by the NSW Civil & Administrative Tribunal (NCAT), then I read the provision that, in the absence of a Special By-Law stating differently, makes the Owners Corporation (O/C) responsible for the maintenance and repair of anything that’s been added to or erected on its Common Property by an Owner, as ipso-facto meaning that any such items are indeed part of that Common Property.
I agree that there are “degrees” of such changes and additions to the Common Property by Owners and that there may be an implied difference between those made on the external surface of a common wall and those made on the inside surface (i.e. within the air-space) of a Lot, but none of that’s stated in the Act and I’d sooner not leave decisions on such potentially contentious and expensive matters to interpretation by a third-party!
So whilst our Executive Committee doesn’t insist on Special By-Laws subsequent to Owners requests for our O/C’s consent to occasional renovations within Lots such as those to kitchens and bathrooms, we do cover its collective backside by including a clause stating that Owners’ acceptance of any consent and their undertaking of their renovations constitutes an understanding and acceptance by them of the requirement that they and subsequent Owners of the Lot are without limitation responsible for the on-going maintenance and repair of whatever it is that they’ve added to or erected on the Common Property.
What do they say about a stitch in time?
wildbear – having been on the receiving end of disparate rulings in the former Consumer Trader & Tenancy Tribunal in circumstances where our matters (2) were substantially the same, I’ve concluded that case law didn’t count for much in that Forum and I doubt that its metamorphisis to the NCAT as changed that too much; different horse with the same jockeys!
Suffice to say though that with regard to any additions and alterations to and the erecting of new structures on the Common Property, where Sect 65A(3) states that ….
“if a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, (then) the owners corporation has the responsibility for the ongoing maintenance”
….and your Plan’s Lawyer-written Special By-Law does include such a specification, then I think that supports my conclusion; albeit necessarily conservative in the context that I’ve outlined.