By law ..right or wrong

You need to separate the concepts of ownership and responsibility for maintenance. 

The OC owns common property until such times as it sells or transfers ownership to another person or company.

In terms of tiles on floors this SCA publication, Who’s Responsible, is very helpful, but basically it says tiles on the floor and external walls are the responsibility of owners.

Exclusive use by-laws allow individual lot owners to enjoy exclusive use of parts of common property but, to be legally valid,  they must have a clause saying who is responsible for maintenance of the common property for which exclusive use has been allowed.

The default position is that the OC is responsible unless the benefitting lot owner is named as being responsible in the by-law.  

However, the intent of the law is for people taking over common property to take over responsibility for its maintenance but for the OC to retain responsibility if they are daft enough not to insist that is part of the by-law. That way, responsibility is always clear (if not entirely fair).

All of the above is why exclusive use agreements made on a nod and a wink should never be entertained.  Sales of properties and changes of EC and OC membership leave both parties wide open to disputes that cost time, energy and money and are totally unnecessary.

On the question of lawyers disagreeing, there are lawyers who work in strata, others who live in strata and a third group who’ve heard about strata.  All of them think they are experts but only one group is likely to give you the right answer … provided you ask the right question.

@justsaying said:

the lawyers involved…. Both leading strata lawyers! One, I suspect , who thrives on ongoing litigation! 

what chance do we have? Going to NCAT? That is one flip of a coin where not everyone is a lawyer and often miss the critical and supplementary evidence.

Yes, there are differences in strata lawyers too – some like to fight and win, some prefer to mediate and reach some acceptable compromise. You pays your money, you makes your choice.

The reason there are so many grey areas in strata law is that NCAT and its predecessor the CTTT were buffers that prevented courts from setting precedents that could be used as benchmarks in subsequent cases.

You’ll find the few areas of rock-solid strata law, such as the OC’s duty to maintain and repair common property, come not from the law itself but from case law established in the Supreme and even higher courts.

The fundamental question on your issue is “pain versus gain” – is it worth all the hassle, frustration and expense (in time and energy as well as fees) even when you know you are right?

Never forget the litigating lawyer’s five favourite words: “It’s a matter of principle …”