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Here's a puzzle that was presented to me just last night. A building installs balconies and new sliding access doors as common property. One owner, unbeknownst to the others, changes his sliding doors for a different and much more expensive style of door. He then sells the unit to another person who later discovers the doors need repair – and a much more expensive repair than would be needed for the original doors. Who's responsible for the repairs?
My guess was the new owner has to shell out because they had bought the “illegal' door (and they could claim against the previous owner). However, a strata manager friend tells me no, the other owners are responsible because they should have known about the door and remedied the situation.
Now, setting aside the fact that this probably isn't worth going to court over – and certainly not the CTTT chocolate wheel – does anyone have a definitve answer to this?
JimmyT
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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Why should other owners be responsible for changes made? In our complex, all the sliding doors are not visible from any common areas. For all we know, owners have changed the standard issue sliding doors for french folding doors!
The standard doors/windows here are anodised aluminium sliding. They ain't pretty, but thats what we've got. If there is anything but the standard doors and windows (fitted when I bought this place off the plan – and I still have all the glossy brochures) then I believe its their problem. And unfortunately, of any new owners (and the previous owners should be held accountable).
Heaven help those who buy the units here where the some owners have previously tried to make changes that did not comply with building codes, Australian standards nor council regulations! Who know whats they have done where we can't see? And why should the rest of us pay if there is no record of permission for any changes from the standard fittings, fixtures and layouts?
This is one of those cases where the OC should have known what was going on but this situation also highlights how difficult it can be to keep tabs on what owners do and how long it can take for some matters to come to light.
Struggler makes a good point; why should the owners have to pay?
Definitive answers generally come from the Court of Appeal and that is a long and expensive haul.
The key words in this issue seem to be “common property doors”.
I do not think the new owner bought the “illegal” door. If the door is on common property it was not the original owners' door to sell to the new owner. The new owner shouldn't be responsible for the door.
It was wrong of the owner to upgrade without telling anyone and that highlights the diligence an OC needs to have.
That the owner who installed the door is long gone may well leave the ball in the OCs' court.
The history of the door (i.e time it has existed) would be a factor given significant weight by CTTT if cases i have seen are indicative. In cases i have been involved with the “time factor” seems to be enough to establish things with some CTTT Members; even if the thing was wrong in the first place.
The beauty of the Flat Chat forum is that there are so many lessons to be learned for Strata owners. An OC needs to check all work done on the property to ensure it was what the OC desired.
This is a problem that has perplexed our plan for several years. This is because for about ten years nearly every owner in our plan has made changes to the common property attached to their lots without seeking approval from the OC. These changes range from installation of air conditioning to shutters and awnings, timber floors and bathroom renovations. Once the first owner did something it proved hard for others not to follow. One in all in so to speak.
It was the culture in the plan therefore for about the first seven years that if you wanted to do or install anything you just went ahead and did it. Now the problems caused by not monitoring CP changes are coming home to roost – last year for example the OC had to replace a storm damaged awning which had been installed eight years ago by a lot owners without seeking approval.
Two of the most expensive additions to our lots have been the installation of shutter doors outside the existing balcony doors of a townhouse and a $25,000 air conditioning system contained wholly within the common property (i.e. the roof) of another lot.
The OC has been advised these and indeed all alterations to the CP, even though they have been made without reference to the OC,, still form part of the CP and if they require repair and or replacement it will be at the expense of the OC. The OC can of course decide not to repair or replace but this requires a special resolution at general meeting which would be hard to pass as nearly all owners have unapproved renovations to their lots.
As time moves on it will become more and more difficult to remember what changes came after the building was completed (in 199) as only one of the original owners still lives in the plan. Several lots have changed hands many times so any new owners would have a reasonable assumption if an item is on the CP it will be the responsibility of the OC to maintain.
To address the situation we are trying to identify all the CP changes and then have owners retrospectively apply for approval of the alterations/additions. The OC has already approved two alterations with the condition that the owner agrees in writing to maintain the changes, insofar as they affect the CP. We have created and registered a generic by law for the purpose and set up a register of Common Property changes. It will be a long process.
While we have implemented this program on advice of both the OFT and LPM Authority we have formally written to then for written confirmation as to conformity with the SSMA 1996.
Anyone with advice or suggestions would be most appreciated.
If I remember the facts correctly, there's a NSW court case where a unit owner replace their apartment's standard floor tiles with far more expensive marble(?) tiles, at the owner's own cost. The unit was sold. Later the tiles needed repairing and litigation ensued between the owners corporation and the new owner. The owner's corporation was finally required to pay for the repairs. This is because it's still common property even if you've ripped out the original property and replaced it with an expensive substitute, and the owners corporation granted consent (which can be expressly given or implied) to the renovation.
I heard the story at an Owners Corporation Network workshop on building defects.
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