Flat Chat Strata Forum Common Property Current Page

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  • #8452
    Jimmy-T
    Keymaster

      I’m in the weird position of asking my own website for advice but here goes.

      Last week our EC advised that some recessed light transformers inside the Common Property ceiling had been overheating due to being packed around with insulation.  They offered to arrange for an electrician inspect the transformers – for a fee.  The minutes of the meeting stated in bold letter that the transformers were not common property.

      Now, the Fair Trading “Who’s responsible …” memorandum is a bit of a muddle over this but in any case, our Owners Corp has never adopted it. Instead we’ve always previously worked on the basis that anything inside the ceiling was common property.

      I dug out a Strata Community Australia (formerly Institute of Strata Titles Management) document that says this:

      “Any pipe, cable, ducting, plug or the like that is for the exclusive use of the lot, then if it breaks:
      • Within the lot – Owners responsibility
      • Outside the lot or in a wall, floor or ceiling that abuts to either common property or another lot – Owners Corporations responsibility.

      To me that reads the cables and transformers in the ceiling are common property.  So, before I go and annoy the Executive Committee (again), who’s with me on this?

      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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    • #16727
      Austman
      Flatchatter

        What does the OC Act (in NSW) say?

        In Victoria it states:

        129 Care of lots

        A lot owner must—
        (a) properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property; and
        (b) maintain any service that serves that lot exclusively.

        So it’s not the case in Victoria.  And I’ve just replaced 4 of those transformers that have gone faulty at my own expense.

        OT: Newer replacement transformers are small, electronic and very cheap.  And probably run cool – it’s the downlights that get hot.


        #16733
        Jimmy-T
        Keymaster
        Chat-starter


          @Austman
          said:
          What does the OC Act (in NSW) say?

          It’s similar to Victoria … except there’s no distinction made about services to individual lots.

          62   What are the duties of an owners corporation to maintain and repair property?

          (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.

          The recent “Who’s responsible …” memorandum has set out to clarify some of these issues but unless it’s adopted as a by-law, the presumption is that anything that’s IN common property IS common property or at least OC responsibility.  For instance, water pipes servicing only one lot but in a common property wall would be considered an Owners Corp responsibility.  

          And even the ‘Who’s responsible’ document has flaws including apparently saying that the Owners Corp doesn’t have to make good the damage caused by a failure of common property water pipes (for instance) but does have to repair the damage caused when repairs of the original issue are being effected.  That one still has me scratching my head.

          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.
          #16734
          Whale
          Flatchatter

            G’day Jimmy, I looked at this one last night and whilst I instantly jumped to an opinion, circumstances resulted in me having a bit more time to think it over.

            So…whilst I don’t agree with the presumption that simply everything that’s in the Common Property is Common Property, particularly if the item is not available for or to the benefit of the common (everyone), until there’s a more definitive “who’s responsible” document available or some revised Legislation that’s less open to interpretation, I agree with you that the transformers and even the downlight housings themselves are the Owners Corporation’s (O/C) responsibility.

            My only qualification would be that those items were installed in the Lot as part of the original construction of the Plan.

            So far as the replacements are concerned, suggest that for an equivalent cost your O/C could replace the transformers with a 240VAC adaptor and matched halogen sealed-beam downlight, or if white light is preferable to a bright light then a sealed-beam LED is an even better and much cooler option. 

            #16750
            Jimmy-T
            Keymaster
            Chat-starter

              The plot thickens (or maybe it’s just the thick plottin’) – it turns out that the Owners Corp six years ago agreed by special resolution that we would take responsibility for our own wires, transformers etc etc. I was at the meeting so i should have remembered.

              However, there seems to be no record of that apart from the minutes of that specific general meeting.  Am I wrong (again) in thinking that the special resolution should then have been incorporated in the by-laws of the building? I would have thought so but I’m batting 0 and 1 here so I’d welcome your thoughts.

              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.
              #16754
              Whale
              Flatchatter

                Section 62(3) of the SCMA only makes reference to a Special Resolution, and if the Minutes of the Meeting include a statement that the Resolution about the transformers will “remain in force until otherwise resolved by proprietors at a general meeting”, then I believe that’s sufficient. If those words or some similar aren’t included, and the matter wasn’t again specially resolved at each AGM since 2006, then in my opinion the status quo applies and the O/C is responsible for the transformers etc.

                If you opt for the 240vac adaptor, then you’ll never need a transformer ever again.

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