- This topic has 14 replies, 7 voices, and was last updated 10 years, 7 months ago by .
-
Topic
-
Hi Jimmy What is the correct area or section that covers things like the OC is responsible for any changes that might have been done by previous owners before they sold the unit to current owners.
For eg:- We bought the unit in good faith , had it inspected and cleared of any major faults before buying it in 2010. Recently a TV antenna installer discovered that ceiling joist have been cut to install down lights . The down lights were there when we bought the Unit.
Strata Manager has asked that all ceiling joist to be repaired and down lights installed must be made to conform to AS/3000-2007 ,Fig:-4.7 All work to be certified, by licensed person.
I did contact the original building inspector re the ceiling joist and he is of the opinion that it is common practice and the joists are strong enough to hold the ceiling up. The joist don`t need to be repaired.
Regards , Thanks.
-
Replies
-
I am assuming there is no exclusive use by-law in place or anything else covering those works? If there is the answer, would be different.
You didn’t carry out any works to the common property, i.e. they were done by a previous. In the absence of a by-law making the owner of the lot responsible for the works, you aren’t responsible for them, the owners corporation is, insofar as they are common property. So if they are concerned about them they have to fix them.
Just to add to my previous comments and Scotti’e observation below, it is worth noting that the section of the strata Act dealing with exclusive use by-laws and the like, assumes that the Owners Corp will take responsibility for altered common property unless it is otherwise specified in the by-law.
This is not the same as someone having made unauthorised changes and then selling without telling, but the intention is clear – if no one else takes responsibility then it falls to the Owners Corp in the absence of any legally binding document to the contrary.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
The NSW Strata Schemes Management Act (1996) applies, where Sect 62 outlines the unfettered responsibility of an Owners Corporation (O/C) to maintain and repair its Common Property, and Sect 65A sets out the procedures whereby Owners (and the O/C) may make changes to that Common Property, and specifically at Clause 3 where the responsibility for ongoing maintenance and repair of any changed items, consented or otherwise, remains with the O/C unless a Registered Special By-Law states differently.
As the Secretary of a self-managed plan it pains me to say so, but your case is aided by the facts that it’s extremely difficult for an O/C to claim that it was unaware of unauthorised changes to its Common Property by a Lot Owner, and to then insist that a subsequent Owner of that same Lot is responsible for those changes, and additionally because downlights actually extend into the Common Property (roof space) the extent of O/C’s liability for maintenance and repair is strengthened.
I’d suggest that you strive for some form of compromise such as sharing the costs in some proportion, because if push turned to shove your O/C could resolve not to maintain the downlights, and instead to just remove them and restore the Common Property (ceiling) to its original state.
Masked2014, Jimmy & Whale,
has anyone thought about the simplest and most obvious of all by-laws, normally by-law 5 under schedule 1 by-laws, being that you can not damage common property. I would envisage that it would be easy to prove that no other apartments have down lights installed, penetrating the fire separation or cutting ceiling joists.
further to this, you may find that there is some considerable legal precedent around this area, whereby an owners corporation has taken action against an owner for not having an exclusive use by-law in accordance with s52 or 65A of the act for alterations to common property, being the only mechanisms in the current Act to permit an owner to alter common property and to keep these alterations to common property. It may be possible to come to an agreement with the owner/OC to permit the alterations in retrospect.
Masked2014, sounds like you may need to seek professional advice from a qualified building consultant and or make application to Fair Trading in relation to the defective building works.
mr s
Mr Strata, I don’t think that’s the point here. This issue is that unauthorised changes were made to common property by a previous owner and Masked2014 was ordered by his strata manager to make good the damage at his own expense.
We are saying that he doesn’t have to as they (the OC) have inherited the common property damage and if they insist on “fixing” it, they have to pay.
Masked 2014 was looking for a definitive ruling that he could show to his strata manager to prove that we are right and the SM is wrong. I don’t know of one but that doesn’t mean it’s not accepted fact. And Whale’s post 5 below points to sections of the Act that would construct such a ruling.
So, if I were Masked 2014, I would not be hiring anyone to do anything. The OC are the ones who want things done and they have been told that they are responsible but chose not to believe this. So let them make the running until they trip over the law
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Thanks Jimmy, yes that is understood. I know from experience that Masked2014 doesn’t have a strong position.
take for example a fine dining restaurant in town that had taken over the ground floor common property bathrooms and a lobby. The previous owners had obtained consent of the OC to lodge a DA, but not permission to alter common property or stay in occupation on common property.
There were changes to ownership to several lots, and as a result, the OC decided to look into the matter, and took action through Fair Trading. The OC were successful in getting an order that the current owner had to get a by-law, lease or licence for their alterations, should they want to keep them and had to maintain them in good order. The sticking point was the lobby area, and it was agreed that they would vacate the lobby and as the OC had known about the alterations for so long, the OC were to fund the reinstatement of the lobby, but if the OC hadn’t known of the alterations, the lot owner was about to foot the bill.
I have also recognised that Masked2014 has contacted the builder that did the works, as he should of. This to me sounds like a contractor doing shoddy workmanship that should be fixed by that contractor or action taken through Fair Trading to ensure they don’t keep up with the same shoddy practices.
From the OC’s perspective, they could fix the common property, reinstating it to its original condition prior to the down lights, ie, removing the down lights and reinstate the original light within the apartment like other owners have. The issue for Masked2014, is that they (the previous owner) has not obtained the correct approvals for these works, and in doing so, have intruded into common property. There is plenty of legal precedent that will assist the OC’s case against the current owner, that they have not got consent to keep the works on common property.
I am suggesting, rather than having that battle, why don’t the OC and Owner work together to take action against the shoddy builder who should be the one paying all costs to fix defective building works. 2 years non structural and 6 years structural warranty requirements under the home building act. The contractor should have been licensed etc, and dependent on the contract and cost of works should be providing warranties.
Just some food for thought…. It’s easier for all to work together to resolve their common issue, use the energy to get it solved rather than fight against the other owners and strata manager, put the shoe on the other foot, how would you feel as an owner, paying to fix someone else’s shoddy renovations, that benefit no one, but just that apartment…
mr s
@Mr Strata said:
I am suggesting, rather than having that battle, why don’t the OC and Owner work together to take action against the shoddy builder who should be the one paying all costs to fix defective building works. 2 years non structural and 6 years structural warranty requirements under the home building act. The contractor should have been licensed etc, and dependent on the contract and cost of works should be providing warranties.
Just some food for thought…. It’s easier for all to work together to resolve their common issue, use the energy to get it solved rather than fight against the other owners and strata manager, put the shoe on the other foot, how would you feel as an owner, paying to fix someone else’s shoddy renovations, that benefit no one, but just that apartment…
I agree that working towards a common solution is better than going to war but it seems like the EC has come in very heavy-handed on Masked2014.
Your example is very specific … a restaurant is by definition a public place so everyone would have been able to see the changes that were made. However, the OC got an order requiiring by-laws if the new owner wanted to keep the changes. That doesn’t alter my point at all. In fact it proves that the OC still had responsibility over common property and could, theoretically, have reinstated common property at OC expense.
If you trawl through these pages, however, you will find plenty of examples of owners whose ECs have tried but failed to order them to fix or remove changes to common property. And yes, other owners have to pay for fixing up just one of their neighbour’s messes – that’s why I am always warning against owners corps allowing changes on a nod and a wink.
But the fact remains that common property is the responsibility of the owners corp and changes are the responsibility of the person who made them. If that person has sold up and moved on, the responsibility reverts back to the OC.
They can order that it be repaired and reinstated … but it would be at OC expense. In the vast majority of cases the outcome described in your restaurant example is negotiated rather than taken to a tribunal. The owner can keep the alterations if they agree to a special resolution by-law shifting responsibility for the upkeep to them.
That’s perhaps what Masked 2014 should be seeking – but he certainly shouldn’t be paying for repairs or remediation that are the OC’s responsibility.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Mr Strata said …. has anyone thought about the simplest and most obvious of all by-laws, normally by-law 5 under schedule 1 by-laws, being that you can not damage common property.
Mr S, I am of the opinion that just like most other By-Laws, #5 is intended to stop something (i.e. a breach) from occurring as opposed to the remediation of its physical consequences, and that it applies moreso to someone driving a nail into a common wall or deliberately defacing common property than it does to managing the activity of someone making changes to, altering, and/or adding something to that property.
This is a difficult area for all Owners Corporations as those Owners who want the benefits of Strata living whilst retaining the benefits of a stand-alone home when it comes to any and all activities within their “castle”, rarely seek its prior written consent before commencing renovations, and it’s difficult for Executive Committees and other interested Owners to detect and act upon un-consented activities at an early stage unless consequential activities such as noise and the parking of contractors’ vehicles impacts.
At the risk of beating my own drum again, our self-managed plan managed this situation in 2011 by unanimously resolving to establish and maintain a Register of Changes (including alterations, additions, and new structures) to the Common Property where, after a 6 month moratorium during which Owners could with guidance from the E/C provide details of any existing changes within their Lots, all those then visually confirmed as involving Common Property were described in the Register.
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.
I also include an item describing the above and the requirements under Sect 65A in my Report forming part of the Agenda for every AGM, and include advice re any inclusions in the Register (or not) at “other items” on every S109 Certificate provided prior to the settlement of a sale within our Plan.
OK it’s more work for the hard-working Secretary, but at least our O/C incorporating of course all its Proprietors is better, if not totally, protected from being lumbered by claims by Proprietors for the often expensive renovations and additions within their Lots to be maintained by it, and conversely from having to play catch-up by bluffing those Proprietors into maintaining and repairing their own renovations, and by quietening their noisy floors.
Almost four (4) years down the track, and our management system is working a treat!
@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.
I agree what you are doing is admirable and it should work but the Strata Act in NSW transfers the responsibility of any alterations to common property to the OC once the lot is sold and I don’t believe a bylaw can conflict with the Act and win.
If this was the case why don’t the default strata bylaws in NSW introduce such a bylaw when the building is first registered to eliminate this ridiculous problem of the strata being lumbered with unauthorized alterations.
Whale I fully agree with what you are doing but I have my doubts about whether it would work if challenged.
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 why I don’t believe that a SBL such as ours can conflict with the Act, but rather supports our O/C’s assertion that a new Owner, who after all’s been advised pre-settlement via a Strata Search and/or via a S109 Certificate about the existence of our SBL and/or of un-consented works involving the Common Property within the Lot that they’re intending to purchase, will be held responsible for maintaining and repairing those.
Thus far there have only been two (2) affected sales in our Plan where in both cases a pre-settlement adjustment to account for the costs to the new Owners of rectifying un-consented renovations (both floors) was made and thankfully, because despite a new title I fear a continuation of inconsistent and contradictory rulings, we haven’t yet been taken all the way to the Tribunal on this, as all Owners have either accepted the validity of our SBL or, in only one (1) instance, taken us to arbitration were they’ve been encouraged to accept it.
I’m not suggesting that our Plan’s SBL is the perfect remedy to this persistent problem, but it’s better than any alternative that I’ve come across to date save the re-write of the NSW Act when a Government finally has the courage to do it!
Off the pack the Motorhome now; back in a week!
@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.
@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, as mini said, it’s just how it’s generally interpreted (including by me).Then Mini said
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.
To be fair, you have not provided a definitive statement of who is responsible for what, instead you have given us a ramble through various bits of legislation with a fair few unreferenced instances about what has been “held” in “some cases” to be “prima facie”. That is far from a definitive statement in any Act.
Whale said there was no definitive statement. You say he’s wrong but, in fact, you prove his point. Enough of this. Here is a definitive statement:
If someone changes common property without the knowledge or permission of the Owners Corp and then sells that property, the Owners Corp inherits the changes to the common property. However, within the OC’s legal obligation to maintain and repair common property lies the implied right to restore the CP to its original state at the OC’s expense.
If anyone has any issue with that, please sue me so we can get a definitive answer as a legal precedent.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
@JimmyT said:
“some cases”Well Jim, many tend to take issue at me citing cases here, so I didn’t this time.
- You must be logged in to reply to this topic.