Alterations or Additions to a Strata Unit including Townhouse, Commercial or Industrial Lot

07/03/2016

Is Local Council or Private Certifier’s approval required and does Owners Corporation have to sign the Application? – Depending on the works sought to be undertaken.

Can a By-Law protect the overall strata building? Yes to an extent.  Act now before a dispute arises.

Watson & Watson are experienced building and construction and strata lawyers.  Many experienced strata managers and most Executive Committees have difficulty with the vexed question.  Most take the view that the Owners Corporation is required to approve all building works and sign as Owner for all applications by any Lot owner for Council (or PCA) approval for the works.  This is not correct.

Fundamentally a Lot owner does not need to obtain the consent of the Owners Corporation to carry out work within a Lot (see Owners Strata Plan 5044 v Cameron North Sydney Investments Pty Limited [2003] NSWCA 5 at 152).

However, for changes to the common property “for the purpose of improving or enhancing the comment property” an authorisation under Section 65A of the Strata Schemes Management Act 1996 is required

Section 65A of the Strata Schemes Management Act provides that in the circumstances of improving or enhancing the common property an Owners Corporation may take the action but only if a special resolution has first been passed at a General Meeting of the Owners Corporation. 

It is usual that the special resolution makes provision as to the responsibility for the maintenance of the common property once the action (addition or alteration) has been taken.  The default provision is that if a special resolution under Section 65A does not specify who has the obligation for the ongoing maintenance of the common property the Owners Corporation has the responsibility for the ongoing maintenance.

A special resolution for the owner of a Lot to be responsible for the ongoing maintenance has no effect unless the Lot owner consents and the Owners Corporation make an appropriate By-Law.

Fundamentally the common property is all that part of the property building and land which is not owned by one of the Lot owners.  There are blurred lines in this regard. 

Not all applications for works to be undertaken require the approval of the local council or a private certifier.  A simple example is that one can undertake maintenance, for example, repainting of an area.  Again there are blurred lines.  One thing which is clear is that if there is a requirement for structural changes, for example, a structural wall there is a requirement for approval by the local council or the private certifier.

If work is being undertaken by a Lot owner without the appropriate approval an application could be made by the Owners Corporation or other Lot owner for an injunction preventing the works being carried out.  If the works have been carried out an application could be made for an order that the offending building works be removed and the common property reinstated.

As in most aspects there is no clear completely objective determination of the matters. 

The outcome of proceedings will depend upon the material facts.  Sometimes a slight change in the material facts will result in a different outcome.  Sometimes urgent action is required and other times it may not be required.

However, all in all one must consider the consequences both financial, emotional and also the time of action or inaction in relation to the many difficult disputes that arise not the least of which include those relating to owners wishing to undertake works.

Some Lot owners have the perception that they can do anything they wish and those same Lot owners somehow believe that their neighbours are not entitled to do anything without strict approval. 

If an Owners Corporation (by its Executive Committee and Lot owners) can think and make decisions as to what is good for the building then the Owners Corporation  has achieved a significant improvement on the basis of each Lot owner believing in their right to do something or to restrain somebody.

Watson & Watson suggest that particular by-laws can be passed which will set out the Owners Corporation’s requirements in relation to building works.  Such a by-law can set out procedural matters, however, the by law generally cannot oust the rights as set out in the legislation either the strata laws or the planning laws relating to the construction and use of strata lots.  We suggest that the best time to consider these matters may be before a major dispute arises in light of the actions or inactions of one or two particular Lot owners, or those on the Executive Committee who have control primarily by proxy of many of the owners.  The management of each strata falls within a various number of different alternatives, however, each depends on their own particular circumstances.

Please telephone Richard Watson an experienced lawyer with more than 30 years in solving disputes.  As time passes those disputes relating to owners within a strata Lot have become more prevalent and more difficult to resolve as they relate to many parties’ beliefs, rights, obligations and circumstances.