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The issue in our strata is the persistent refusal of our committee to undertake urgent common property repairs as required under Section 62 of the NSW Strata Schemes Management Act.
The committee asserts that a bylaw transfers perpetual responsibility for the repair of balcony masonry works – where balconies have been enclosed. At present 3 units are experiencing substantial leaks through the balcony masonry balustrades when it rains.
However legal advice (ironically obtained by the committee) had this to say about responsibility.
1. ‘The special bylaw involved does not relate to the balustrades on the balconies – what it does is allow owners to do work to common property in order to enclose their balcony’.
2. ‘As such we recommend that if the brickwork of the balustrade of any of the balconies has fallen into a state of disrepair, then the Owners Corporation ensure it is properly rectified as soon as possible’.
3. ‘In the absence of any by-laws registered on title transferring the responsibility of repair and maintenance of the brickwork on the balustrade of the original balcony to individual lot owners; it would comprise of common property and be the responsibility of the Owners Corporation to repair’. There is nothing in Schedule 2 of the unit title deeds mentioning any obligation – I should point out that the current owners involved were not the installing owners; most of the enclosures were installed 20 years ago or more!
Our committee has ignored the legal advice completely and refuses to provide any explanation. A recent mediation session came to nothing and we will be going to adjudication.
We would appreciate any views on this – enclosing balconies is not uncommon in strata of a certain age and it would be interesting to find out how it is usually handled. Incidentally, spray tests of the window frames failed to produce any leaks.
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Sorry, flat chatters – my post may have been a little garbled.
To be surer of our ground, the basic queries are:
- Does Section 62 of the NSW SSMA take precedence over any special bylaws as regards the repair of common property?
- Is there a legal difference between structural repairs and maintenance (painting, cosmetic works etc.)?
- Can obligations be transferred automatically to successive owners without their agreement if they are not spelled out on individual title deeds?
Any advice or views would be really appreciated.
1) Any gov, state or local legislation takes precedence over any bylaws and if the bylaws conflict with any law the bylaw looses.
2) Generally Structural repairs are the responsibility of the Strata unless a bylaw has been duly passed transferring that responsibility to the lot. Cosmetic repairs are the responsibility of whoever is responsible for the item (common property or lot property).
3) yes responsibility for common property can be transferred to lot owner (and subsequent owners) by a special bylaw being passed and registered with the state gov.
Structural items (especially in a unit situation) should not be transferred to lot owners and in your situation I would say the original balcony balustrades are still OC responsibility but the additions belong to the lot owners and the only thing the OC are obliged to do are remove them if considered unsafe as they are unapproved additions.
Mucho thanks for your comments, kiwipaul. Although we didn’t ourselves do the installations we have documents to prove the installations were fully compliant with the relevant bylaw (including council permission and a structural engineer’s report), and had OC approval.
Which begs the question – how can subsequent owners be held solely responsible for possible consequences from approved works 20 years + later?
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