Sydney’s recent wet and wild weather has seen damage to a lot of dwellings with fallen trees, power lines and broken and lifted roof tiles. If you live in house and don’t have anyone else to deal with, you get the repairs done yourself. But if you live in a strata property – a unit, villa or a townhouse, and the damage is to the common property then you have to deal with the Owners Corporation (often through a strata manager). This means that you will have very little control, if any over the repairs. A good Owners Corporation will get things moving and happening as quickly as possible.
But, what happens when the Owners Corporation takes too long to get the repairs done? Can you do the repairs yourself and then claim the costs from them? And, what is common property?
As a general rule, common property is anything structural and things that form part of the structures, and everything else that does not form part of a particular lot. This includes boundary walls, floors, roof, balconies, balcony doors, tiles, pipes, drainage, electrical wiring, visitor and shared parking, driveways, waste areas, shared recreational facilities. The Owners Corporation is responsible for repairing these items so that the common property has a uniform look and work is done to an acceptable standard.
In a recent case of The Owners — Strata Plan 32735 v Lesley-Swan [2012] NSWSC 383, the owner of a lot in a strata plan needed to repair tiles on her balcony. Because the balcony forms part of the common property, the Owners Corporation were responsible for its repair. The owner of the strata lot was not satisfied with the length of time that the Owners Corporation were taking to repair the tiles and the balcony, and undertook the work at her own expense and then sought compensation from the Owners Corporation.
The issue: was the Owners Corporation under an obligation to compensate her for the cost of the works?
She argued that the Owners Corporation had breached their statutory duty to ‘properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation’ (Section 62 of the Strata Schemes Management Act 1996). She believed that such a breach allowed her to carry out the works herself and seek compensation from them. The Court ruled against her and held that the Owners Corporation had no liability to compensate the lot owner. The Court stated that the Owners Corporation’s failure to repair had not caused damage to the lot owner’s property. Basically, she could have waited for the Owners Corporation to make the repairs.
Although this may seem unfair, it would be unfair on all lot owners (whose strata contributions make up the sinking fund) if a lot owner could make repairs to common property whenever they felt like it without permission and then seek compensation.
Always deal with your Owners Corporation and don’t make changes or repairs to common property yourself. If your Owners Corporation is delaying the process or causing problems, you may need to seek outside assistance to review your strata by-laws and help push things along.
For further information contact our Commercial Business & Property Team.
