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Hi, I’m new to the world of strata and would really appreciate some advice on what I think is an unusual issue.
I am very close to buying a really great unit that we love, but it has some significant unapproved works and I’m note sure if I should just forget about this unit and look for something else or accept it as being ok.
Here’s the story ….
The block is about 14 years old. The unit’s entitlement includes a small section of rooftop terrace area (covered) that was originally only accessible via the fire stairs. Around 8 years ago the unit was upgraded by enclosing the roof top terrace area to form a small study/bedroom area. This enclosure is ok as it has council approval and an occupancy certificate.
However, the upgrade also includes insatalltion of a spiral staircase from the lower level into the newly formed room on the enclosed roof top terrace. This involved a 1200mm dia hole being drillied in the concrete slab that was the roof. It is all very professionally done, its been in place for 8 years, and there is a certificate from a structural engineer – however the staircase has not been approved by council or the owners corp. I think the stairs were installed without approval after the occupancy certificate was issued for the enclosure.
Not sure why it doesn’t have approval and I can’t imagine that the Owners Corp doesn’t know about it.
I need to make a decison quickly as there is another potential buyer in the picture – apart from structural integrity (which I think is ok) is there anything else I should be worried about?
Thanks
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My late step-father, a conservative, old-school, solicitor would have told you to run a mile. Advice like this on matters such as yours has saved me on quite a few occasions.
…as a further response, what you should be worried (or at least give consideration to) is that the Council could withdraw its Occupancy Certificate and/or that the Owners Corporation (O/C) could require its Common Property (ceiling) to be returned it its original state.
I’m also a conservative, but as the works have apparently been professionally undertaken and the current Owner of the Lot has a Structural Engineer’s Certificate, the chances of the Council or the O/C taking any action is remote in my opinion.
I’m not a lawyer, but why not ask yours to request an extended cooling-off period or depending on their advice a delayed settlement, either one being conditional upon the vendor obtaining either or both of the requisite consents?
Personally, I’d focus on the O/C’s consent, but be guided by your legal advice and in the event that the vendor doesn’t agree, then that’s likely because they can’t obtain those consent/s, in which case you walk away.
In these circumstances, whomever the buyer is wouldn’t have to worry about OC approval once they had bought the unit, because they didn’t put the staircase in. The OC can only take action against the person who did it. That still leaves the lack of Council approval.
I would still be wary, just because I can’t stand things being a bit uncertain. I am familiar with one case where an owner did not get Council approval for a certain type of use of their lot. This has caused both them and the OC a lot of grief over a considerable period of time, and in the end the owner has had a large amount of value sliced off their property.
There may be trouble in the future without Owners Corporation approval. Our OC had problems in a unit with unapproved alterations to fire-rated ceilings (common property) made by a previous owner. The current owner sought to have the ceilings reinstated by the OC. It went to the CTTT and here is their decision:
“On the evidence before it the adjudicator is not able to make the orders sought by the applicants. If the alterations to the common property were carried out by the previous owner of the lot, the applicants (who are successors in title) are responsible for ensuring that the by laws of the strata plan are complied with. The adjudicator is not able to make orders that the Owners Corporation carry out repairs to common property that are as a result of alterations made to the common property by a lot owner.”
The current owner is now responsible for the reinstatement of the fire-rated ceilings in their unit, not the previous owner who did the unapproved works.
That is a bizarre decision although it does seem to uphold the principle of caveat emptor – buyer beware.
I reckon a smart lawyer would, on appeal, have argued that the current owner, acting in good faith, could not have known that the ceiling was non-compliant whereas the Owners Corp had a statutory duty to make sure that it was compliant.
In any case, there is no principle of precedent for CTTT rulings (although previous rulings are often considered by adjudicators as part of the broader picture).
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.
I assume JimmyT is talking about LukeR’s post about the non-approved alterations to a fire rated ceiling when he says: “I reckon a smart lawyer would, on appeal, have argued that the current owner, acting in good faith, could not have known that the ceiling was non-compliant whereas the Owners Corp had a statutory duty to make sure that it was compliant.”
I reckon a ‘smart lawyer’ when he was doing the conveyancing would have insisted on the checks everyone should have done, but apparently only 23% of people actually do, which should have spotted the unapproved and DANGEROUS ceiling alterations.
And the Owners Corporation’s ‘smart lawyer’, should they need one, will get that Notice to Comply straight to the owner, whoever it is at the time, complied with and have the unapproved, non-fireproof, dangerous ceiling which probably voids everyone’s insurance… fixed pronto.
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