September 2014 | Scott Freidman

In a recent update we outlined the strict duties on Owners Corporations (‘OC’) to keep Common Property areas and related fixtures properly maintained and in good and serviceable condition: see S.62 Strata Schemes Management Act 1996. If an OC does not do so, is it wise for an individual lot owner to carry out the repair work itself, for example, rotten timber window sills or frames and if so can that owner then recover the cost or expense of the work from the OC?

The answer is no. Owners should maintain the pressure on the OC, if necessary obtain their own quotes, but cannot take matters into their own hands and also expect financial reimbursement. If an owner does so in order to improve the sale prospects or price, this will be at the owner’s cost.

This position was recently confirmed in The Owners – Strata Plan 32735 v Lesley Swan [2012] NSW, which involved a dispute about re-tiling a balcony floor on common property. Following delays and inaction from the OC the individual lot owner arranged for the re-tiling at her own cost and then tried to claim this cost from the OC. The Court confirmed that there was no right to this financial recovery because:
The statutory provisions do not authorise or permit an individual lot owner:

An individual lot owner should not be free to have his or her contractor perform work on common property, even where an OC has failed to rectify a defect or perform work, as this may:

  1. undermine the integrity of the strata scheme;
  2. result in strata safety issues;
  3. impact on the convenience of other lot owners; and
  4. cause work to be performed that is out of keeping with the visual or structural features of the building.

As noted in our first update on this topic, breach of the S.62 duties by an OC may give rise to a private cause of action under which damages may be awarded to the individual lot owner, if it can show that the OC delayed the repairs unreasonably and therefore caused damage. This would be the only reason for an individual owner to obtain quotes for repair work

Written by Scott Freidman
Director
(02) 9231 2466

If you would like more information please email Scott on sfreidman@hflawyers.com.au or call us on 02 9231 2466.

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