@stressed said:
However if there is no waterproofing in a bathroom, then non-existent waterproofing cannot be common property.
Says who? If you attach something to common property then it comes under the same regulations as common property
The waterproofing when laid by the lot owner, is lot owner property to be maintained by the lot owner.
Yes, provided the by-laws passed to allow the change to common property specifies that – otherwise it defaults to the owners corp.
The waterproofing cannot suddenly become common property. There are no provisions either in the SSMA 2015 or SSDA 2015 which allow this to happen.
Not so. Again, anything that changes common property by virtue of being attached to it becomes common property unless the enabling by-law says otherwise. See section 108 of the Act (below).
It would be in contravention of basic property rights. It would be the same as saying that kitchen cabinets, when they are attached to a common property wall, suddenly become common property.
What basic property rights? You are comparing ducka and apples – a new kitchen is legally defined as a minor renovation, changing the waterproofing of a bathroom is a major renovation
Also a by-law is not required because they are only written in respect of common property and the waterproofing is not common property.
Argue this dubious point all the way to the Tribunal, if you wish, but your quoting of selective parts of the law (including two out-of-date Acts) will get you nowhere.
Section 108
(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 maintenance
A 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.