Who's responsible for new waterproofing when there wasn't any before? | Common Property | Flat Chat Forum: Your Questions Answered




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Who's responsible for new waterproofing when there wasn't any before?
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Larry
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07/10/2017 - 12:21 am
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Our Strata scheme in NSW was registered in 1983 when none of our apartments had bathroom waterproofing and therefore it wasn't part of common property.

If, however, an owner subsequently renovates their bathroom and is therefore required to install waterproofing under the Building Code, does the new waterproofing automatically become part of common property and Owners Corporation therefore become responsible for its maintenance / repair? 

Or does a bylaw need to be passed specifying who would become responsible for maintenance/repair of the new waterproofing?  

I'm aware that under new NSW Strata legislation waterproofing is common property but I'm not sure if this applies to older buildings in which waterproofing didn't exist at time of Scheme's registration.

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scotlandx
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07/10/2017 - 12:14 pm
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If an owner adds it, then the owner should be responsible for it and a by-law implemented accordingly.

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stressed
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07/10/2017 - 1:40 pm
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Under section 110 (7) (d) the Legislators appear to have assumed that "waterproofing" is common property. Section 110 is concerned with work, by a lot owner, to common property, in connection with the owner's lot, for the purposes of minor renovations. The Legislators have not specified which "waterproofing" they mean. Therefore it could be on a balcony, on an outside wall, in a bathroom or somewhere else.

However if there is no waterproofing in a bathroom, then non-existent waterproofing cannot be common property.  The waterproofing when laid by the lot owner, is lot owner property to be maintained by the lot owner.

The waterproofing cannot suddenly become common property. There are no provisions either in the SSMA 2015 or SSDA 2015 which allow this to happen.

It would be in contravention of basic property rights. It would be the same as saying that kitchen cabinets, when they are attached to a common property wall, suddenly become common property.

Also a by-law is not required because they are only written in respect of common property and the waterproofing is not common property. 

 Section 18 (1) of the SS(FD)A 1973 provides that - Upon registration of a strata plan any common property in that plan vests in the body corporate for the estate or interest evidenced by the folio of the Register comprising the land the subject of that plan but freed and discharged from any mortgage, charge, covenant charge, lease, writ or caveat affecting that land immediately before registration of that plan.

Section 21 of the SS(FD)A 1973 provides that - Common property shall not be capable of being dealt with except in accordance with the provisions of this Act and the Strata Schemes Management Act 1996 .

 

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JimmyT
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07/10/2017 - 2:33 pm
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stressed said
However if there is no waterproofing in a bathroom, then non-existent waterproofing cannot be common property.

Says who?  If you attach something to common property then it comes under the same regulations as common property

The waterproofing when laid by the lot owner, is lot owner property to be maintained by the lot owner.

Yes, provided the by-laws passed to allow the change to common property specifies that - otherwise it defaults to the owners corp.

The waterproofing cannot suddenly become common property. There are no provisions either in the SSMA 2015 or SSDA 2015 which allow this to happen.

Not so. Again, anything that changes common property by virtue of being attached to it becomes common property unless the enabling by-law says otherwise. See section 108 of the Act (below).

It would be in contravention of basic property rights. It would be the same as saying that kitchen cabinets, when they are attached to a common property wall, suddenly become common property.

What basic property rights? You are comparing ducka and apples - a new kitchen is legally defined as a minor renovation, changing the waterproofing of a bathroom is a major renovation

Also a by-law is not required because they are only written in respect of common property and the waterproofing is not common property.

Argue this dubious point all the way to the Tribunal, if you wish, but your quoting of selective parts of the law (including two out-of-date Acts) will get you nowhere. 

 Section 108

(1) Procedure for authorising changes to common property

An owners corporation or an owner of a lot in a strata scheme may add to the common property, alter the common property or erect a new structure on common property for the purpose of improving or enhancing the common property.

(2)  Any such action may be taken by the owners corporation or owner only if a special resolution has first been passed by the owners corporation that specifically authorises the taking of the particular action proposed.

(3) Ongoing maintenance

A special resolution under this section that authorises action to be taken in relation to the common property by an owner of a lot may specify whether the ongoing maintenance of the common property once the action has been taken is the responsibility of the owners corporation or the owner.

(4)  If a special resolution under this section does not specify who has the ongoing maintenance of the common property concerned, the owners corporation has the responsibility for the ongoing maintenance.

(5)  A special resolution under this section that allows an owner of a lot to take action in relation to certain common property and provides that the ongoing maintenance of that common property after the action is taken is the responsibility of the owner has no effect unless:

(a)  the owners corporation obtains the written consent of the owner to the making of a by-law to provide for the maintenance of the common property by the owner, and

(b)  the owners corporation makes the by-law.

(6)  The by-law:

(a)  may require, for the maintenance of the common property, the payment of money by the owner at specified times or as determined by the owners corporation, and

(b)  must not be amended or repealed unless the owners corporation has obtained the written consent of the owner concerned.

(7)  Sections 143 (2), 144 (2) and (3) and 145 apply to a by-law made for the purposes of this section in the same way as they apply to a common property rights by-law.

Note.

 A new by-law or other changes to the by-laws for a strata scheme must be approved by a special resolution of the owners corporation (see section 141).

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JimmyT
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07/10/2017 - 2:40 pm
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Larry said
If ... an owner subsequently renovates their bathroom and is therefore required to install waterproofing under the Building Code, does the new waterproofing automatically become part of common property and Owners Corporation therefore become responsible for its maintenance / repair? 

Or does a bylaw need to be passed specifying who would become responsible for maintenance/repair of the new waterproofing?  

As ScotlandX indicated, a by-law would be required to install the waterproofing required by the building code and that same by-law would, sensibly, apportion the care and maintenance of the waterproofing  to the lot owner.

The fact that there was no waterproofing before is irrelevant. You would treat this as a change to common property and pass the responsibility to the lot owner.

You could argue that the lack of waterproofing was a defect but that would be pointless as all the bathrooms are affected and therefore all the owners would pay for the rectification anyway.

Keep it simple!

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dingo
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16/11/2017 - 8:41 pm
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 David Bannerman has a recent article on pre 74 stratas that is worth a read. Not as simple as some may suggest in pre 74. some waterproofing may be lot owners depending on location not sure what effect that has on the act 

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Ziggy
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17/11/2017 - 3:57 pm
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I’ve got the opposite. We’ve had waterproofing done to the exterior of lot owners’ property then covered with stones. It is now full of weeds. Who then is responsible in having it all cleaned up when the OC claimed it WAS common property in order to add the waterproofing? HELP? I hate strata living!

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