Approvals for Work/Renovations in Strata Schemes

07/07/2016

Owners of Lots in Strata Schemes often want to carry out work on their unit or townhouse.  This article concerns the approvals required to carry out the work.

In a particular unit or lot in a Strata Scheme, there may be a mix of types of property.  Those types of property may be firstly the individual lot, and secondly the common property. So for example, in a townhouse with common walls, the common walls and the roof might be common property, but the courtyard at the rear of the townhouse might be part of the individual lot. The difference between these types of property is the ownership of the property. The owner of the lot is the individual person who owns the unit or townhouse. However the owner of the common property is all of the owners of the lots in the strata scheme collectively. These owners together are the Owners Corporation.

Often at Watson & Watson our experienced strata lawyers are approached by Owners of lots in relation to the requirements for consent and how to obtain the necessary consent to enable work to be undertaken.  The approvals for work on the common property and the lot within a unit differ, due to the different ownership.

For work to be undertaken at the unit there may be a requirement for approval, for example:

(a)      Owners Corporation approval for work on or relating to the common property, and

(b)      Development Consent from the Local Council or Private Certifier. 

           The Owners Corporations operates through their by-laws and may also have a by-law in relation to works to be carried out at or within a unit.  These may be procedural.  Even if the Owners Corporation’s consent is not required, the Owners Corporation can make by-laws regarding procedures in relation to carrying out of works wholly within a unit.  However a by-law may be unenforceable if it seeks to make a condition that the Owners Corporation must approve the works even if wholly within ones lot.  It is therefore important to review the by-laws. 

We often receive enquiries in relation to many different aspects covering all matters relating to strata. 

Invariably the first point of review is to review the by-laws and the Strata Plan.

These will assist us to be able to advise you in relation to your obligations and the Owners Corporations obligations in relation to many areas of contention including the issues relating to renovations. 

Some Lot Owners may believe that all the work/renovations being carried out within the lot or unit does not involve the common property. This is often not the case.  This issue as to what is common property and what is wholly within a lot is in many cases not without difficulty.  If you require assistance in this respect please telephone Richard Watson an experienced Strata Lawyer for advice. 

Following a review of the by-law and compliance with it as to procedural matters, if the Lot Owner wishes to carry out renovations, which requires work to the common property, the Lot Owner should seek approval from the Owners Corporation. This is by way of special resolution to be passed at an extraordinary meeting or annual general meeting. However, where the work involved is an alteration solely within the lot, approval from the Owners Corporation is not required.  However, as indicated above there may be other by-laws which touch upon this aspect requiring the Lot Owner to provide information to the Owners Corporation. 

Additionally the Lot Owner needs to consider whether there is local planning requirements requiring Development Consent from the Local Council or other consent before approval can be granted.  If work is to be undertaken to any part of the common property the Owners Corporation will have to consent to the lodging of the Development Application as an Owner of that part of the property namely the common property.  This is required even if the Owner of the lot is the Applicant for the Development Consent. 

If the Owners Corporation by resolution consents to the lodging of the Development Application with the Council it does not prevent any of the Lot Owners from objecting to the development by lodging objections to the Local Council. 

The Local Council does not investigate of itself the approval that has been granted by the Owners Corporation to ascertain whether it is for the same work for which the Development Application has been lodged.  If there is any question in this regard an objection can be lodged to Council.

If a common seal of the Owners Corporation indicating consent as Owner for the Applicant to lodge the Development Application is on the Development Application to the Local Council, however it is without any authority from the Owners Corporation this matter should be raised with Council.  The Council, if it is satisfied that the seal or signature indicating consent is invalid should reject the Application to Council as it is not lodged with the consent of each of the Owners, namely the Lot Owner and the Owners Corporation which owns the common property.

There can also be issues as to whether the Council can approve works which are contrary to an instrument or agreement between for example various Lot Owners.  This could include whether the Council can approve work the subject of an Application which is different to that which was approved by the Owners Corporation or is subject to particular by-laws. The signature by the Owners Corporation as an Owner of land (the common property) is not of itself evidence of consent to the actual works the subject of the Application but rather a consent to the lodging of the Application.  These issues have occurred in some recent matters in which we have been involved.                                                                 

If you find yourself in these difficult matters please telephone to discuss the matter with Richard Watson an experienced Building Construction and Strata Lawyer.

Please telephone Richard Watson or his Personal Assistant Shereen Da Gloria to discuss these important matters.