Question: Who decides what is a repair versus an improvement?

Answer: This question is often asked, and there is no straightforward answer.

Strata Renovations summarises repairs in the following way: Anything required to:

• repair property
• maintain property
• replace property that has reached the end if it's service life, is dilapidated, damaged or unserviceable
• renew property that must be periodically renewed
• remove property that is illegal, dangerous or a hazard etc
• comply with any lawful direction from any authority

In his text book on the subject, Alex Ilkin concludes that what constitutes a repair is ultimately a matter for a court to decide.

Question: What if an item of common property was not built right in the first place?

Answer: Situations like this often occur, for example some common problems are as follows:

• Windows are not installed correctly when the strata scheme was built (or subsequently repaired etc)
• Repairs are not carried out properly (eg damp proof courses were not installed property)
• Roof leaks (eg flashing not installed properly) etc

The general position is that irrespective of whether an item was original, has been repaired, or perhaps repaired without permission by an owner, if an owner has not accepted responsibility to maintain an item of common property via a bylaw, then the owners corporation must pay for repairs to be undertaken.

Question: When is a repair a building defect?

Answer: To a degree, repairs and building defects are largely synonymous. Both are building issues that must be resolved. The definition of building defect is generally taken to mean a building related issue that must be resolved by the builder who constructed the works, or else the defect must be resolved by another person who has liability for the works, for example an insurer. The laws relating to building defects are very complex and change frequently.

Strata Renovations suggests that all claims that relate to building defects be professionally managed. Advice of this nature is too complex for this website which provides advice of a general nature.

Question: What are the exceptions to the requirement to repair common property?

Answer: Like everything, there are some exceptions to the rules outlined above which make it a mandatory responsibility of the owners corporation to repair and maintain the common property. Some of these exceptions are as follows:

• If a bylaw has been passed with respect to an area of common property, the bylaw may make one or more of the owners responsible for the maintenance of an item or other part of the common property.
• If the owners corporation has passed a special resolution that it is inappropriate to maintain, repair, renew or replace an item of common property, then the item does not need to be repaired. However conditions apply in that such a resolution cannot be made if the decision affects safety or detracts from the appearance of any property.
• Garages, tool sheds and other non-habitable spaces have a specific exemption in the Building Code of Australia with respect to rain and dampness.

Question: What happens if it cannot be determined if an item was originally part of the common property and it is suspected that an owner has repaired or renovated common property?

Answer: Situations like this often occur. For example, Strata Renovations recently saw a large strata scheme where one of the garages appeared to have been constructed in a different manner to the others. But there was no strong evidence that this was done by the current owners, or indeed in the past 10 or 20 years. It may have been altered by a previous owner, or it may have been part of the original construction. In this case, the owners corporation was advised that irrespective of who altered the common property, if it was defined as common property on the strata plan then the responsibility for repairs fell on the owners corporation.

This rule generally applies. For this reason, if an owner carries out unauthorised works, then the owners corporation should always do one of the following, either

1. require that the owner return the common property to original condition, or
2. lodge an application to the Tribunal if they do not, or
3. get the owner to pay for a bylaw which makes them responsible for the works.

The owners corporation should take photographs, statements and must act. Because if the owners corporation does not formally act via one of the mechanism's outlines above, then the default position is that further down the track, the owners corporation will have to pay anyway. The onus of proof is on the owners corporation. Strata Renovations is not aware of a legal precedent, but a sensible rule-of-thumb is that the owners corporation should commence action within two years.  

Question: What happens if an item of common property was never constructed?

Answer: Situations like this also occur frequently. For example, Strata Renovations recently inspected a property where there should have been a retaining wall. However a retaining wall was not originally constructed by the owners corporation. The answer in this case is very clear, the owners corporation is responsible to construct a retaining wall, if one is required, irrespective of whether or not there was a wall there originally.

Similar logic will apply for example to any of the following:

• security lights,
• gutters and drainage structures,
• damp proof courses,
• ventilation fan,
• letterbox.

Question: What happens if common property walls have cracked, should the owners corporation pay even if it might have been caused by unauthorised repairs by an owner?

Answer: This complex example was seen recently by Strata Renovations. The owners corporation was advised that the owners corporation has an absolute obligation to repair and maintain the common property, irrespective of who caused the damage. If the owners corporation believes that the damage was caused by an owner, and has clear or strong supporting evidence, then the owners corporation might like to take the case to the Tribunal. However it would take strong evidence for the Tribunal to conclude that an owner had caused damage to the common property. Such evidence might be an admission, photographs or witnesses and statements etc. Circumstantial evidence or the suggestion that this might have occurred a long time ago will almost always be rejected by the Tribunal.

The conclusion was that irrespective of the cause, if there is a crack in a common property wall then it is the duty of the owners corporation to repair the wall.

Question: What happens if an owner has installed a new door without permission and it now needs to be repaired?

Answer: If a door (or window) has been installed in a common property wall it becomes part of the common property and the owners corporation must pay the repair bill. For this reason, if an owner carries out unauthorised works, then the owners corporation should always do one of the following, either:

1. require that the owner return the common property to original condition, or
2. lodge an application to the Tribunal if they do not, or
3. get the owner to pay for a bylaw which makes them responsible for the works.

The owners corporation should take photographs, statements and must act. Because if the owners corporation does not formally act via one of the mechanism's outlines above, then the default position is that further down the track, the owners corporation will have to pay anyway. The onus of proof is on the owners corporation. Strata Renovations is not aware of a legal precedent, but a sensible rule-of-thumb is that the owners corporation should commence action within two years. 

Question: What happens if there is damp or mould in an apartment?

Answer: The owners corporation has an absolute responsibility to ensure that water, moisture or damp do not penetrate an apartment, particularly if it causes damage, mould or mildew. There is evidence that mould can be very dangerous and damp related problems should always be resolved as a priority. If an owner identifies that damp is penetrating their apartment, then the owner should report the matter to the owners corporation which must act to prevent the entry of water or damp. These problems can be very expensive to resolve, but the cost is irrelevant, the owners corporation must act quickly.

There is one exception to this rule as descibed by Alex Ilkin, the owners corporation is not required to prevent damp from entering 'uninhabitable' areas of a lot, this might include for example a carport or garage. The Building Code of Australia has a specific exemption to garages and carports which applies. Strata Renovations believes that this rule will apply if a room is identified as follows:

• the room is marked as a garage or carport on original plans or the strata plan
• the room is constructed with a garage type door

Many owners try to convert a carport or garage area to an extra bedroom, or store valuable possessions in these rooms which are not designed for this purpose. When their furniture or clothes become mouldy they then complain to the owners corporation. These complaints have no basis.

Question: What happens if unauthorised repairs to common property were carried out by a previous owner?

Answer: Normally, in this case, the owners corporation will be fully liable to pay for the repairs to common property.

Question: What happens if very expensive repairs are required to the common property?

Answer: Strata Renovations recently saw a strata scheme where a number of balconies had severe concrete cancer. This was likely to cost a lot of money and take several years. Irrespective of the cost an owners corporation has a responsibility to repair and maintain the common property, in this example the owners corporation had an obligation to make the common property safe. If the owners corporation does not have the funds available in their sinking fund, they must either raise a special levy or alternately borrow the money via a strata loan. Strata Renovations has borrowed money on a number of occasions and recommends this approach whole-heartedly. 

Strata Renovations has also recently witnessed a large building that required extensive repair works to be undertaken. This involved underpinning foundations, new drainage and repairing extensive cracks in walls. The owners corporation of that building decided to call a large special levy. Some owners could not afford to pay the special levy and were forced to sell their apartments. In this sitution Strata Renovations would have recommended to the owners corporation that they borrow the money but this option was never presented to the executive committee or owners corporation by the strata managing agent until it was too late.

On that occasion Strata Renovations believes that the strata managing agent did not manage the situation appropriately. It is our opinion that a strata managing agent should present the full range of feasible options to the executive committee and owners corporation for consideration.  

Question: What happens if you do not agree with the proposed method of repairing common property?

Answer: Unfortuantely this is also a common situation. For example, Strata Renovations has been involved in two recent situations where there is some disagreement as to how repairs might be carried out:

Example 1: Repairs to stop damp penetrating. Stopping the penetration of damp can be very complex, and often requires a range of treatments. Opinions often vary. When there are a range of opinions the opinion of the "expert" must take precedence over the opinion of say a builder, tradesperson or layperson. If two experts disagree, and they are both willing to present their evidence to the Tribunal or a Court, then the Courts have processes to resolve differences of opinion between experts. However outside a court, the opinion of an expert in the field always wins. In the example of damp, an owner wanted to conduct cheap repairs including drainage ditches etc and made an application to the Tribunal that included a request to conduct what the expert called "shoddy" repairs. The expert proposed complete reconstruction. The Tribunal appointed a compulsory strata manager who decided to follow the advice of the expert.

Example 2: Balcony repairs: Strata Renovations has also recently seen a complex problem that will involve expensive repairs to balconies. A range of treatment options were possible. Some options were far more expensive than others. Strata Renovations recommended to the owners corporation that they initially conduct a quick discovery process in order to briefly determine what all the feasible options are before proceeding with expensive repairs. An owners corporation should inform itself properly before making expensive decisions.

Example 3: Cracking of common property walls. Strata Renovations has also recently witnessed a situation where there was extensive cracking to common property walls. In this example the owners corporation was presented with options for quick and expedient repairs versus almost complete demolition and a complete rebuild. This was a complex situation and engineeres, architects and building professionals will often find themselves in situations where there is no straight-forward answer. In this situation immediate and expedient repairs were undertaken together with a recommendation to carry out a range of preventive measures. It is likely that additional repairs may be required over time, however the long term cost to the owners corporation was dramatically reduced. One of the main factors to consider is the likely inconvenience that will be caused to the owners from each option considered. In the example cited the disruption to the owners was likely to be less if expedient repairs were undertaken, so that option was recommended.

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