Legal status of an unauthorised window replacement | Common Property | Flat Chat Forum: Your Questions Answered


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Legal status of an unauthorised window replacement
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04/03/2018 - 9:09 pm
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Window Replacement

We recently noticed an owner had replaced a window to their unit. No approval was sought for this replacement, and no notification was given. Despite bringing this to the attention of the Council of Owners and the Strata Manager there seems to be no interest to address the situation with the owner.

The response from the Strata Manager was that “it has nothing to do with them”.

We have since learned that the alteration was arranged by the property manager as it was below the threshold for repairs given to them by the owner.

We have also learned that the property manager had been in contact with the Strata Manager about this matter.

Little information has been provided by the owner, who coincidentally, is a member of the Council of Owners.

Questions: Are we correct in assuming that by altering common property without permission any future insurance claim for leaking or other concerns from the owner regarding this window should not be entertained? What is the best way for this alteration to be recorded?

The state is WA.

Tess McGill
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08/03/2018 - 12:25 am
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Not an expert on WA strata law, but in NSW alteration by one unit owner of common property would be dealt with by an “exclusive use” by law which notes the alteration / addition to common property. The by law attaches to the title of that property, so future owners know of their responsibilities. Something similar seems to apply in WA:

19.5 Exclusive use or special privileges by-laws
See section 42(8) of the Act
It is possible to create by-laws granting individual lot owners exclusive use and enjoyment of, or special privileges in respect of, common property or any part of it.

Such by-laws will usually require a clear sketch plan of the relevant part of the common property and may be subject to conditions, including obligations to maintain and repair the relevant part of the common property or may be made subject to a payment or a combination of conditions and payment.

A proprietor who would have the benefit of such a by-law must give written consent to the adoption of the bylaw (see section 42 (8) STA).

To pass a by-law relating to exclusive use and/or special privileges in a two lot scheme a unanimous resolution is required and in any other scheme, a resolution without dissent is required.

Proprietors granted exclusive use are responsible for the repair and maintenance of their exclusive use area, unless the by-law states otherwise (see section 42(11)(b) STA)

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13/03/2018 - 3:47 pm
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in NSW my understanding is that, apart from the story being a probable breach of ‘appearance in keeping’ bylaws, common property items like original windows are generally repaired and maintained using common funds – but if the owner decides to renovate or replace with new/different then that incurs a change of use and thereafter the owner tends to be responsible for any repairs to it.

Our strata was asked to pay bills for $20K to stop a unit skylight leaking – but no other units had skylights.  After intensive research we found the skylight was not original and had been added by a subsequent occupant.  The current owner swore it wasn’t them, but wanted us to repair it.  We ended up offering them two choices – either remove it to restore the roof to original (no skylight) condition (which would have cost thousands) or sign an exclusive use bylaw accepting responsibility to maintain it in future.  Not wanting to pay any money now, they finally agreed to the bylaw.

Then today – undergoing renovations after poor tenants for the last four years, we get a claim from this unit for a leaking pipe.  Hmm – I’m interested to see if that might come from anywhere near the skylight …

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