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I’m actually the tenant in this instance, but have been in the building for a long time and been involved in strata matters through my relationship with our landlord.
We’re in a flat in a strata building with the old standard strata laws in NSW.
20+ years ago, the bathroom was renovated, and a hidden electronic cistern installed in the outer wall. There is dedicated plumbing up the outside of the building for this purpose. No bylaw appears to have been created to transfer any responsibility for maintaining this modification.
The cistern mechanism is now failing and requires a costly repair. The strata committee is claiming it’s not their responsibility because it was installed by the lot owner, and services only one lot. I’m inclined to think that they’re wrong.
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If there is no by-law passing responsibility for the cistern to the owner of the lot, then it is the responsibility of the owners corporation.
If the cistern was inside the lot, then the answer would be different.
No, it’s not a statute of limitations issue. The key thing is that when an owner does this type of work, the OC should make sure that they are only permitted to do the work on condition that they agree to an exclusive use by-law that passes responsibility for that work to the owner. In the absence of a by-law the OC is responsible.
If a by-law is in place, then any subsequent owners are bound by the by-law and it is clear who is responsible. An affected owner has to agree to the by-law, the OC can’t just unilaterally resolve to introduce one.
In a perfect world you could ask the owner to agree to a by-law, but it’s not a perfect world, and why would an owner agree to that? On the flip side, where someone has done work which is arguably part of the common property, the OC can resolve to remove it. In this case I don’t think they can do that – because a cistern is an essential service.
Note that the Committee does not have the power to introduce a by-law, only the owners can approve one, in a general meeting (subject to the affected owner agreeing).
The owners corp may have responsibility for the cistern, since it’s on common property, but they don’t have to replace like for like.
A compromise would be to get a financial contribution based on the cost of the cheapest option, with the owner then replacing the cistern with a similar model but accepting a by-law giving them ongoing responsibility for the cistern and related pipework.
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.
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