Flat Chat Strata Forum Common Property Current Page

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  • #11978
    Fgc
    Flatchatter

      I’ve done a good bit of searching and haven’t been able to find the answer to this question so please excuse me if it was staring me in the face and by all means remove my post.  The situation is this:

      Pre-1974 building with the old standard bylaws.  Balconies that appear on the strata plan as outside the thick, black line, indicating they are common property.  The balcony concerned is tiled and uncovered.  The current owner bought in about 2000.

      There has been a persistent leak into the downstairs flat during heavy rain.  Some works have been carried out by strata, poking around in the brickwork, to no avail.  The strata committee has claimed that the tiles are not original, and that the balcony was renovated without strata permission (by a previous owner now long departed) so the floor of the balcony is no longer their responsibility and thus, if the leak is going through the floor and not the wall, the owner has to pay for repairs.

      I can’t find any law or precedent to support this unless there was a change to the bylaws when the renovations were done, so just wondering if anyone has any insight.  

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    • #30637
      Jimmy-T
      Keymaster

        The owners corporation is responsible for all common property. In the absence of the special resolution by-law that they should have extracted from the renovator, then they, or their successors, have to wear the consequences.

        This is why I have been saying for the past 15 year that there are serious problems with letting owners do what they want with common property on a nod and a wink.

        It’s also why a common property by-law requires someone to be given responsibility for the ongoing maintenance (with that defaulting to the owners corp if they are stupid enough not to insist that responsibility shift to the renovator).

        So look no further – if the Owners Corp can’t come up with a record of a registered by-law saying the previous owner has taken responsibility for the upkeep of the balcony, then it’s still their responsibility and they are obliged to fix it.

        You can take that to the bank … and NCAT. 

        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.
        #30639
        Fgc
        Flatchatter
        Chat-starter

          @JimmyT said:
          The owners corporation is responsible for all common property. In the absence of the special resolution by-law that they should have extracted from the renovator, then they, or their successors, have to wear the consequences.

          This is why I have been saying for the past 15 year that there are serious problems with letting owners do what they want with common property on a nod and a wink.

          It’s also why a common property by-law requires someone to be given responsibility for the ongoing maintenance (with that defaulting to the owners corp if they are stupid enough not to insist that responsibility shift to the renovator).

          So look no further – if the Owners Corp can’t come up with a record of a registered by-law saying the previous owner has taken responsibility for the upkeep of the balcony, then it’s still their responsibility and they are obliged to fix it.

          You can take that to the bank … and NCAT.   

          Tremendously and immediately helpful as always! Many thanks. 

          #30651
          Paul2000
          Flatchatter

            Following on from this question, and I understand the issues, what is the position that after an owner departs it is discovered that they have carried out an illegal renovation. For example top floor apartment and skylight installed. The Owners’ Corporation were unaware of the work and the new owner simply accepts it as it is. If there was a later issue, eg water leaks through the roof resulting from the renovation, I would think that the OC would have to accept responsibilty for any repair. After all the new owner did not do it and was unaware that it was illegal. The former owner has gone and it would be difficult to sue them.

            Any thoughts?   

            #30652
            Whoopi
            Flatchatter

               Hi Jimmy are you thinking of Sect 108?

              #30656
              Jimmy-T
              Keymaster

                @Whoopi said:
                 Hi Jimmy are you thinking of Sect 108?  

                Indeed I am:

                108   Changes to common property

                (1) Procedure for authorising changes to common property
                An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

                (2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

                (3) Ongoing maintenanceA special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.

                (4)  If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

                (5)  A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:

                (a)  the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

                (b)  the owners corporation makes the by-law.

                (6)  The by-law:

                (a)  may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and

                (b)  must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned.

                (7)  Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.

                Note.

                 A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).

                 

                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.
                #30663

                Thoughts on secretly installed skylights…..

                Without a by-law moving responsibility for upkeep to the unit owner, the Owners Corporation (OC) must take responsibility for them.

                Now that the OC is responsible for them, the OC might decide it doesn’t want to take care of skylights that favour just one owner, and might resolve to remove them and patch the ceiling and roof.

                What’s that – the new owner likes them? Well, they can prepare a special by-law for registration on their title, moving the care and maintenance of the skylights to the unit owner.

                End of thoughts.

                #30678
                Paul2000
                Flatchatter

                  Thanks everyone for your comments re skylights etc. Confirmed my opinion.

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