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Topic
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If an owner makes changes to common property, without getting strata approval, when does strata become responsible for those changes?
Is it when there is a new owner of the property, or after a ‘given’ timeframe, or never?
A simple (I hope) example; an owner installs a TV aerial on the roof without getting strata permission. Years pass. The owner sells the property. The new owner advises strata that the aerial is rusted and needs to be replace; as its on common property they believe strata is required to repair it.
Is the new owner in their right to keep the aerial as it was there when they purchased the property, or can strata insist that it be removed as it wasn’t an approved change?
If the aerial remains, who covers the cost of maintenance?
The aerial could just as easily be solar panels, or ducted airconditioning, etc…
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If there is no exclusive use by- law making the owner responsible then it is the OC’s responsibility. If the person who did it has gone, then you can’t require a by- law so you’re stuck with it.
A TV aerial is slightly different – someone may have put it there, but generally I believe the OC has to provide that sort of amenity. How they provide it is up to them.
Solar panels and air conditioning would be OC responsibility unless they passed a resolution not to replace or repair it, but I think that resolution has to be unanimous.
I’m afraid I don’t agree with Scotlandx on this, the Strata is only responsible for the original building common property or items it has installed itself. In the case of a tv Ariel not approved by strata that has become dangerous, the only obligation of the strata is to make it safe by removing it and returning the roof to it’s original state. This would apply to all unapproved items.
I think its a difficult situation, hence my question to the forum experts
kiwipaul; if the scenario was a ducted aircon system located in the roof which required a new motor, is your opinion is that strata has to remove it rather than replace/fix it, similar to the aerial?
I would suggest in that approach the new owner would not be happy to have purchased a property with a major feature now to be removed.
In any case how would any buyer of a property, where they weren’t the first owner, have any idea if any feature of a property was ‘original’ or added by a previous owner without strata approval? Wouldn’t such a concept require a detailed description of the property when it first entered strata? Such a thing I’ve not seen (in my very limited strata exposure).
I’m sure there are different opinions on this but I was wondering if anyone has seen anything on it in the Strata Schemes Management Act 1996 as I haven’t found anything yet.
That isn’t correct KP, at least in NSW. If an owner does works affecting common property and doesn’t get permission, unless the OC acts to require an exclusive use by-law (or possibly removal), the works (or whatever it is) become the responsibility of the owners corporation.
Yes teamwalrus you are right – a purchaser without notice would quite rightly object if they bought an apartment with air conditioning, and then the OC said sorry you can’t have it any more. I wouldn’t like to be the OC in that kind of situation. That is why it is so important to make it clear who is responsible for what.
In the case of a TV aerial what I am saying is that generally it is a reasonable expectation that residents will get TV reception. How the OC provides that is up to them, so if they want to take the old aerial away and replace it somewhere else fine, as long as the resident has TV reception.
teamwalrus is in NSW, so I’m afraid that I have disagree with you KWP (and not just because he/she may be an oceangoing colleague).
In my opinion (and experience) un-consented changes or additions to the Common Property are difficult to manage, not least of all because a vigilant Owners Corporation (O/C) should reasonably be aware of those at the time that they occur or within a short timeframe thereafter, and it’s hard therefore for an O/C to require some restoration of its Common Property or a reversal of whatever changes or additions were made and/or to substantiate an application along those lines to the NSW Civil & Administrative Tribunal (NCAT) long after the event, particularly so if the person who made the change or addition is/was a tenant or a new Owner (i.e. not the one who made the changes / additions).
As a more direct response to teamwalrus’ post, anything that’s attached or added to the Common Property by or with the consent of a Lot Owner forms part of that Common Property, and in the absence of a special resolution taken at a General Meeting that grants consent to those works and, with the prior written consent of the Lot Owner, a Special By-Law making them and subsequent Owner/s responsible for all on-going maintenance, repairs, and replacements of whatever’s been added or attached, then that responsibility remains with the O/C.
So the O/C is responsible immediately, although it can mount a successful argument against a Lot Owner to have them restore the Common Property to its original state and in default to undertake those works itself and recover all applicable costs of doing that IF the Lot Owner who undertook or consented to the works (e.g. by a tenant) is the current Owner. Although even then, a Lot Owner could claim that works were undertaken without their consent by a tenant (past or present) and that they weren’t aware of them – although that would be harder to substantiate at the NCAT given that regular inspections of rental properties are supposed to occur.
Beyond that and in general terms, where the Lot has been sold and so the current Owner is not the person who undertook or consented to the additions / changes to the Common Property, then the O/C is stuck with the responsibility for all on-going maintenance, repair, and replacements unless it can convince a cooperative current Owner to agree to assume that responsibility retrospectively, and ideally to have that enshrined in a Special By-Law.
So in summary this whole topic is messy, and particularly so in Plans with high occupancies by tenants who may themselves make additions / changes to the Common Property, and moreso are disinclined to make an O/C aware of such works by others.
The solution that I adopted for our self-managed plan (where I am Secretary) was firstly to place an Item about the need for all Owners to themselves comply and to ensure compliance by their tenants with Sect 65A of the NSW Strata Schemes Management Act on the Agenda of every AGM, secondly to create a “Register of Changes and Additions to the Common Property”, thirdly to give all Owners a 6 month moratorium to advise me of any and all changes / alterations to their Lot/s irrespective of who did them or when, and lastly to specially resolve (i.e. >75% in favour) at the subsequent AGM to create and Register a Special By-Law providing that any additions / changes to the Common Property that aren’t shown in the “Register” (incl. those made by the O/C) are entirely the responsibility of the Owner/s from time-to-time of the Lots concerned.
OK – it’s work for me to keep the Register up-to-date, but that’s a hell of a lot easier that trying to assign maintenance and repair responsibility of a faulty TV aerial, air-conditioner, ceiling fan, or expensive floor tiles that have cracked to some less than cooperative Owner long after the event that added those to the Common Property!
Woops – Scotty and me posted at the same time (but similarly as usual) – so I’ll take the opportunity to now add that an O/C should make persons conducting a Strata Search (optional) or a Solicitor / Conveyancer requesting a S109 Certificate (mandatory) where both are pre-purchase, of any un-consented changes or alterations affecting the Lot; I always do!
Whale 1410
Thank you for the well worded and thoughtout replies.
Whale thank you for sharing your process re the register.
For the record I’m a he in NSW
In some states it depends if the unapproved work is a service or not.
In Victoria, an owner is responsible for a service from where it exclusively serves the owner’s lot only.
For for example, a split system air conditioner or a TV antenna that serves only one lot would always be the lot owner’s responsibility to repair/maintain/replace. As would any damage to common property that the service causes.
An unapproved common property building alteration is another matter. The OC is always responsible for common property maintenance and repair, including altered common property, unless an exclusive use arrangement has been made. But an OC can always try to reinstate any unapproved common property alteration and try to recover the costs of doing so.
I can’t see how an OC can force a current owner to reinstate a common property alteration that the current owner did not do. And VCAT seems to agree. Here is a case where a deck was built without OC permission by a previous owner.
I am talking about NSW Strata rules. I know it’s messy in NSW and I know the strata is responsible for common property but if an owner has fitted new very expensive items to common property (with no SBL) and this item breaks then the strata can just return it to it’s original state if asked to pay for the repairs.
If the new owner then objects he can be given the option of paying for it himself or having strata remove it for free. I agree the strata cannot insist that the item is removed, but I believe it can refuse to pay for any repair (with the exception of returning the CP back to it’s original state).
For an a/c unit on CP that breaks (supplying only one unit) then the strata should say it’s not our problem and leave it up to the new owner to fix it. I’ve looked at the Adjudication ruling and can find none that has forced the strata to fix an improvement that was unauthorized. Mind you their is only 1,000 online in NSW, QLD has approx 10,000 online so a much bigger database.
Is the Strata responsible for the regular ongoing maintenance of unapproved a/c units, solar panels. hot water tanks, etc located on common property.
KP that is not correct. If someone undertakes unauthorised works or additions that affect common property, and there is no special by-law, and then the lot is sold to someone else, the OC is stuck with it. Refer both my and Whale’s previous posts.
If an OC took it upon themselves to rip out an air conditioning unit that serviced a lot on the basis that it was an unauthorised addition by a previous owner, they would be in a hell of a lot of trouble. The same applies to an addition that needs servicing – if there is no by-law specifying that it is the responsibility of an owner, then the OC has to do it.
Even where someone does unauthorised works and they are still there, the OC can’t just wade in and remove them. We are in that position at present with an owner who seems to find it amusing to ignore numerous notices to him telling him not to do that kind of thing, and just keeps doing it. If the owner refuses to consent to a by-law then the only option is for the OC to seek an order for one, or in the alternative an order permitting removal of the works.
Yes it is messy, but that is the way the law works in NSW. That is why, as Whale points out, it pays to be vigilant.
@scotlandx said:If an OC took it upon themselves to rip out an air conditioning unit that serviced a lot on the basis that it was an unauthorised addition by a previous owner, they would be in a hell of a lot of trouble. The same applies to an addition that needs servicing – if there is no by-law specifying that it is the responsibility of an owner, then the OC has to do it.
I’m not for one moment suggesting that anything unauthorized be ripped out, I just saying it’s not the strata responsibility to fix an unapproved addition.
Quote from another post.
Two points: The owner in question wants to change the compressor at the Owners Corporation’s expense. This owner does not consider the air-con to be their own private property. This was an illegally installed unit for which responsibility has transferred to the owners corp (unless the owner is lying).
On that basis, the Owners Corp has acquired responsibility for the air-con but, as I have said repeatedly, they don’t have to fix it. They can just remove it.
This is a different situation from an owner wanting to fix their own air-con at their own expense
Author JT himself.
I also agree Whales solution is the best but how many strata have the knowledge and time to manage this, I suspect very few and most would only come across this issue once an illegal alteration have been found and a new owner is asking the strata to repair it.
For the strata to accept responsibility to maintain all unauthorized alterations is a license for unscrupulous operators to make unauthorized changes then sell expecting the strata then to repair their doggy work. Luckily I live in QLD where this cannot happen but I cannot believe this was the intention of the strata act NSW.
kiwipaul said
I’m not for one moment suggesting that anything unauthorized be ripped out, I just saying it’s not the strata responsibility to fix an unapproved addition.
If an unapproved addition to common property is left when an owner sells, and the Owners Corp has not objected to the addition, then the Owners Corp absolutely and definitely takes responsibility for it, regardless of whether or not they knew about it.
Others think that means they have to leave it in place and repair it when it breaks down. I disagree. If the addition now belongs the Owners Corp, then surely they can choose to fix it or remove it. What they can’t do is choose to do nothing.
Does anyone know of any case law that suggest otherwise?
I have found this, where the new owner of a unit was ordered to remove an unapproved staircase installed by a previous owner.
And in this case, the CTTT Member said: “The Owners Corporation has the right and the duty to maintain and repair common property. In my view maintenance and repairs extends to removing any trespass on or interference with common property.”
Neither of these are precisely what is being discussed here. However, in cases of new owners assuming that additions to common property were approved, I would suggest ‘caveat emptor’ applies.
It makes no sense to me that a subsequent owner of a property can say “this is common property so you must repair it” then says “this is my property so you can’t remove it.”
That said, sense is not a major component of strata law
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.
Jimmy re:
“I have found this, where the new owner of a unit was ordered to remove an unapproved staircase installed by a previous owner.”
What a fascinating case! The decision gives hope to duped OCs everywhere.
teamwalrus – Sect 140 is irrelevant in my opinion, as it relates to situations where a Lot Owner has sought the Owners Corporation’s (O/C) consent to alter and/or repair Common Property either before or after doing the works, and that consent has been unreasonably refused. It also includes the additionally subjective proviso of the works needing to directly affect the Owners’ Lot.
Whilst I agree that an O/C, when faced with a maintenance / repair / replacement issue involving un-consented changes / additions to its Common Property, cannot simply do nothing, the consequence is that it’s then placed in a position of expending funds to do something when that could fairly easily be avoided.
That means of avoidance is vigilance by the O/C, or a relevant Special By-Law such the one that I suggested earlier, which incidentally is how the staircase matter referred to in Jimmy’s post (#12) was resolved; I can’t help wondering what the outcome would have been otherwise.
You refer to the (hypothetical?) example mentioned in your first post, where it’s clear now that your O/C must do something about the TV Aerial with which the current Owners have had no involvement. That in my “black or white” opinion should be to remove it, and if by some chance the Lot doesn’t then have adequate television reception via the means put in place at the time of construction, then any cabling that’s within the internal walls of the Lot is the Owner’s responsibility and anything else is the O/C’s responsibility.
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