Common Property and repairs by lot owners

Our earlier blog gave a summary of the changes to the Owners Corporations Act 2006 which commence on 1 December 2021 as a result of the passing of The Owners Corporations and Other Acts Amendment Act 2021. It is available on our website.

Section 46 of the Act requires Owners Corporations to repair and maintain common property and any services or fixtures.

But what happens when the Owners Corporation fails to carry out the repairs or maintenance? Lot owners can become frustrated with inaction and may choose to carry out the works themselves. However, lot owners should not be tempted in carrying out works without express authorisation from the Owners Corporation.

The case law that has developed in this area has been that lot owners have needed consent of the Owners Corporation to undertake the works and if the works were undertaken without a resolution authorising the reimbursement or payment for the works, the lot owner was not able to recover the costs of the works from the Owners Corporation. Whilst the changes from 1 December 2021 don’t change the state of the law, they make it clear that under a new section 47A of the Act that lot owners must not repair, alter or maintain—

(a) the common property of the owners corporation; or

(b) a service in or relating to a lot that is for the benefit of more than one lot or the common property.

Unless authorised expressly by the Owners Corporation as an agent of the Owners Corporation.

This prohibition is subject to section 56 of the Equal Opportunity Act 2010.

But what does section 56 of the Equal Opportunity Act 2010 (EOA) provide and how does it apply to Owners Corporations?

Section 56 is for the benefit of a person with a disability (as defined by the EOA) who owns or is an occupier of a lot affected by an owners corporation.

Section 56 states that an owners corporation must allow a person with a disability  to make reasonable alterations to common property to meet his or her special needs if—

(a)     the alterations are at the expense of the person; and

(b)     the alterations do not require any alterations to a lot occupied by another person; and

(c)     the alterations do not adversely affect—

(i)     the interests of another occupier of a lot affected by the owners corporation; or

(ii)     the interests of an owner of another lot affected by the owners corporation; or

(iii)     the interests of the owners corporation; or

(iv)     the use of common property by another occupier of a lot or an owner of another lot affected by the owners corporation; and

(d)     the action required to restore the common property to the condition it was in before the alterations is reasonably practicable in the circumstances; and

(e)     the person agrees to restore the common property to its previous condition before vacating the lot and it is reasonably likely that he or she will do so.

The Act provides some useful examples of the above. In particular an owners corporation may be able to allow the person to make reasonable alterations to the common property by—

•     fixing a ramp to the external facade of the building;
•     installing a mechanical device in the front door of the building to enable the person to open the door automatically.

Lot owners need to be careful that they only undertake works to common property that are approved in writing by the Owners Corporation and that the issue of who is paying for the works is specified. It should be noted that an Owners Corporation must obtain a special resolution if the Owners Corporation (or someone as agent for the Owners Corporation) is undertaking a significant alternation to the common property under Section 52 of the Act.

Need Advice ?

Phillip Leaman, principal of the Owners Corporations practice group of Tisher Liner FC Law and his very experienced team can provide assistance to owners corporations, committees, lot owners and managers in a range of owners corporations legal matters. We have substantial experience in taking actions against builders, building surveyors, architects and plumbers for original building defects on common property and private lot property.

We also act for lot owners and Owners Corporations in respect to advising on what is private lot property as opposed to common property and the obligations of lot owners and Owners Corporations to undertake repairs and maintenance.

We believe Owners Corporations want to maintain peaceful, functional living environments for owners. Our mission is to provide a fresh perspective on resolving legal disputes and to inspire Owners Corporations to achieve outcomes that preserves the value of assets and restores harmony. We are expert Owners Corporations lawyers.

For advice or assistance, please contact Phillip Leaman on 03 8600 9314 or by email pleaman@tlfc.com.au.

To see earlier spotlights on the amendments check out our website. Our website also has more information on Owners Corporations as well as a range of helpful blogs and podcasts.