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Topic
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Our Strata Manager (NSW) has advised the following:
“We can only on charge costs of repairs to common property if there has been permission granted to the owner of a lot for alterations to common property”.
To support that position appears to quote Section 63 and Section 65.
I believe that the statement does not pass the common sense test, as there must be a Legal remedy when UNAUTHORISED WORK IS DONE / COMMON PROPERTY IS DAMAGED, and the property needs to be put back to its original condition / repaired. This may be under Common Law OR Likely the Strata Management Act.
I note in particular Section 63 (below)
63 What power does an owners corporation have to carry out work and recover costs?
(1) Application of section This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.
As PART 2 (Sections 62 to 65C- covers MAINTENANCE, REPAIRS, ALTERATION AND USE OF COMMON PROPERTY AND FIRE SAFETY INSPECTIONS, I feel her quoting of these section is in error.
Has anyone have any knowledge on the matter.
Thanks – Winston
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Winston – the Strata Manager is correct in my opinion, as your Owners Corporation’s (O/C) approach should have been to seek an Interim Order to halt the Owner’s un-consented renovations as soon as it became aware of those.
So now your O/C has to play catch-up, and in my opinion the best way for it to do that would be for it to immediately write to the Owner and advise them that the works that they’ve undertaken (describe them specifically) place them in breach of Sects 65(A) and 116 of the NSW Strata Schemes Management Act (1996), and that it is their duty (use that word) to within 7 days either commence whatever repairs are necessary including but not limited to (list those) in order to return the common property to its original state or seek in writing the Owners Corporation’s consent to the entirety of their renovations, which it will retrospectively consider.
In that way, if the Owners seek written consent your O/C could at a General Meeting, as a demonstration of good faith, retrospectively consent to the Owner’s renovations with conditions, one of which would be that they, at their cost, repair all areas of the common property (as listed).
Conversely, if the Owners don’t within the timeframe allowed seek consent, and they don’t commence the listed repairs that are their duty despite the O/C’s offer in good faith, then that would in my opinion open the door for the O/C to invoke the provisions of Sect 63(4) as the only clause of that Section that’s relevant to your O/C’s situation.
The better as opposed to the best option (i.e. the Orders) would be to encourage the Owners to seek consent under Sect 65(A), as in that way the O/C wouldn’t have to seek access to the Owner’s Lot and/or chase them for the recovery of its costs in the NSW Civil and Administrative Tribunal, where it could still end up after Mediation anyway; which is why it’s been acting in such “good faith”.
Of course your O/C could seek resolution via Mediation with the assistance of the NSW Department of Fair Trading straight away, but again in my opinion a letter and a delay of around 7 days for a reaction is not too long for it to seek-out a better and quicker solution.
I am in the ACT but I am inclined to agree that if a unit owner (party A) has damaged the property of the owners corporation (party B), then the OC can seek reparation for the costs of rectifying the damage. It does not seem relevant to me for this argument that party A is a member of the OC. Party A and party B are separate legal entities. This would be the same if the damage to the common property were caused by a ‘party A’ who was entirely unrelated to the OC?
For an alternative argument, I assume you would have a bylaw along the lines of ‘A unit owner must not unreasonably interfere with the reasonable use and enjoyment of the common property by other residents.’ Damaging the common property would be an unreasonable interference, I would have thought, and this could be used to invoke the dispute resolution mechanisms associated with breaching a bylaw.
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