As individual owners, most people maintain their premises as best they can. They patch walls, touch up the paint, repair damage and keep things in good order.
But what about common property in a strata scheme? Whose job is it to take care of that, and how does the process work?
What are the Obligations of the Owners Corporation?
The essential starting point is this – the owners corporation is obliged to maintain and repair the common property in the strata scheme.
Specifically, the owners corporation must “properly maintain and keep in a state of good and serviceable repair” the common property (and any personal property that has vested in the owners corporation, but that’s a story for another day).
Beyond that, the owners corporation also has to renew or replace any fixtures or fittings as needed that form part of the common property.
There is a major point to make here though – the owners corporation has no obligation to upgrade anything. The requirements here are focused on maintenance and repair only.
So, for example, the owners corporation has an obligation to:
- Fix a broken gate to the secured common carpark area;
- Ensure that the goods lift remains operational and in good order;
- Maintain the building pipework to avoid leaks and repair them promptly if they occur.
Of course, the owners corporation pays for this maintenance and repair using the funds raised through levies.
What if One of the Lot Owners Broke It?
So let’s say John and Suzie Smith were carrying a piano in and dropped it on the foyer tiles, cracking half of them.
Does the owners corporation still have to repair that at the expense of all the owners?
Well, not necessarily.
If the owners corporation is taking steps to recover the costs of any damage from an owner, it can defer the repair/replacement until that action is concluded provided it doesn’t have any adverse safety consequences to do so.
So if there’s an allegation that an owner should be responsible for repairing the damage, at their expense, then the owners corporation should:
- Actively take steps to pursue that owner for the costs of repair;
- Note at a regular meeting that action is occurring, and that the owners corporation is therefore deferring any obligation it might otherwise have to repair the damage; and
- Ensure that if for any reason the damage cannot or will not be repaired by the lot owner (ie – the action to recover from them ceases) the owners corporation then takes steps to do the repair itself.
Does the Owners Corporation Have to Repair if None of the Lot Owners Want it To?
Sometimes there are bits of a building that just aren’t worth repairing. Perhaps they can’t really be adequately repaired, or maybe the repairs are too expensive to warrant the job.
If there is a consensus view that something just isn’t worth it, the owners corporation can avoid its obligations to repair if it passes a special resolution that:
- It is “inappropriate” to maintain, repair or replace the thing in question; and
- That not doing so won’t adversely affect the safety of the building, or detract from the appearance of any property in the scheme.
What are the Rights of the Lot Owners?
There are a number of situations where lot owners might want to push back on the owners corporation. Generally those situations fall into one of these categories:
- The owners corporation failing to repair or maintain something that it should;
- The owners corporation wanting to improve something rather than repair it; and
- Damage that arises from the owners corporation failing to meet its obligations to repair and maintain the common property.
Let’s look at each in turn.
Failing to Repair
Sometimes an owners corporation, for whatever reason, fails to repair and maintain the way it should be. Alternatively there might be a clash about who has the responsibility to do what, or just how much “maintenance” is required to keep things to the appropriate standard for a building.
So what happens if an owner, or a few owners, believe that the owners corporation should be doing something but there isn’t a consensus about it?
At a practical level, the first thing to do is to bring the issue to the committee’s attention, or raise it as part of the normal meeting process within your owners corporation. This can hopefully allow some sensible discussion to occur and may ultimately resolve things.
If there is disagreement about whether something actually needs maintenance, then it can be useful to try and get any reports from managing agents, handover reports or dilapidation reports that the owners corporation might have had done over time. Which of these are available will depend on the age and situation of your building of course.
But sometimes reports and discussions don’t help. If push comes to shove, an owner can apply to the Tribunal for orders compelling the owners corporation to perform the repair and maintenance that has not been done.
Of course the lot owner/s will need to establish for the Tribunal that:
- The property forms part of the common property;
- It requires repair or maintenance (if necessary by showing that the state of the thing in question has deteriorated);
- What the proposed repair or maintenance it wants performed is; and
- That the owners corporation has no valid reason to avoid conducting the repair or maintenance.
Damage Arising from a Failure to Repair
Often as part of a complaint that the owners corporation failed to meet its obligations to repair and/or maintain the common property, a lot owner will have suffered some kind of damage.
So, for example, the proper plumbing inspections and maintenance have not occurred, and as a result there is a leak in the pipework which causes water damage to an owner’s property.
The owner can seek compensation from the Tribunal in this circumstances to cover the loss and damage they have suffered.
To achieve that, the owner would need to demonstrate all the things we list in the section above, as well as connect the dots between the failure to repair and the loss or damage they are claiming for.
Improvements Rather than Repairs
Sometimes what person A considers to be “repair and maintenance”, person B believes to be an improvement.
A good example here is roofs.
A roof can be repaired in terms of its function for a long time. Eventually, however, the roof is visually unappealing and while it technically still performs its function it is really in need of replacement in terms of aesthetics.
So is the roof replacement a “repair” or an improvement?
The question to be asked here is whether the roof should be repaired or replaced. Importantly the question is not whether the roof “can” be repaired – most things can be repaired but this does not necessarily mean that repair is the most appropriate option.
Each decision the owners corporation needs to make here need to be assessed on a case by case basis. As a general rule, if an item is significantly dilapidated and as a result is detracting from the overall appearance of the building irrespective of whatever repairs might be performed, it might be time to consider replacement as the viable option.
In this case, it would still be considered “repair and maintenance” for the purposes of the owners corporation obligations.
What Orders can an Owner Seek?
If an owner needs to go to the Tribunal on grounds the owners corporation has failed to meet its obligations, the orders an owner can seek can cover a fair range of options. These include, for example, orders requiring the owners corporation to:
- rectify defective works;
- pay an individual owner to carry out those works;
- do something or refrain from doing something;
- pay for removal and/or storage of furniture while works are being done;
- pay for the costs to repair or replace property of an individual that was damaged as a result of the failure to repair the common property (eg carpets, plasterboard, mould remediation).
But What if we DO want to Improve Things?
While the obligation on the owners corporation is limited to repair and maintenance, that doesn’t mean that you can’t ask for improvements.
If the owners corporation, or an owner, want to improve the common property, add a structure or substantially alter things then the owners corporation can pass a special resolution dealing with the idea.
Of course, sometimes an owner wants an improvement to the common property that mostly benefits them and not others. While people might not object to such an improvement, they might not want to pay for it either – so what should the owners corporation do in such a circumstance?
Thankfully there is ample allowance for resolutions that a particular owner pay for the installation and/or upkeep of a particular improvement, even if it’s on common property.
There’s a fair amount of flexibility available, but it’s important to follow the right forms including the way resolutions are passed, and any necessary adjustment to your by-laws.
This is where getting a strata lawyer is a good idea so that things don’t come back to bite you down the track.
If you are an owner or a committee member embroiled in complex discussions about repair and maintenance, we’d be happy to help. Give one of our strata lawyers a call today.