Part 2 Maintenance, repairs, alteration and use of common property and fire safety inspections

Introductory note. This Part sets out the duties of an owners corporation to maintain and repair the property of a strata scheme and to arrange access for fire safety inspections. Certain powers are given to an owners corporation to recover money for work required to be carried out and to enter property to carry out certain necessary work. The Part also deals with certain powers of an owners corporation in relation to alterations or additions to common property and the granting of licences over common property.

62   What are the duties of an owners corporation to maintain and repair property?

(1)  An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.

(2)  An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.

(3)  This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

Note. The decision of an owners corporation under subsection (3) may be reviewed by an Adjudicator (see section 138).

63   What power does an owners corporation have to carry out work and recover costs?

(1) Application of section
This section applies if a person who is required to carry out work as referred to in this section fails to carry out the work.

(2) Work required by public authority
An owners corporation may carry out work that is required to be carried out by an owner of a lot under a notice served on the owner by a public authority and may recover the cost of carrying out the work from the owner or any person who, after the work is carried out, becomes the owner.

(3) Work required to be carried out under term or condition of by-law
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot under a term or condition of a by-law and may recover the cost of carrying out the work from that person or any person who, after the work is carried out, becomes the owner of that lot.

(4) Work that is duty of owner or occupier to carry out
An owners corporation may carry out work that is required to be carried out by a person who is the owner, mortgagee or covenant chargee in possession, lessee (or, in the case of a leasehold strata scheme, sublessee) or occupier of a lot in order to remedy a breach of a duty imposed by Chapter 4 and may recover the cost of the work from that person.

(5) Work required to be carried out under order
An owners corporation may carry out work required to be carried out under an order made under this Act and may recover the cost of carrying out the work from the person against whom the order was made.

(6) Recovery of costs as a debt
The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

64   What power does an owners corporation have to carry out work at its own expense?

(1)  An owners corporation may carry out such work as is necessary to rectify any of the following defects:

(a)  any structural defect in any part of a building comprised in a lot that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,

(b)  any defect in any pipe, wire, cable or duct that provides, or through which passes, any water, sewage, drainage, gas, electricity, garbage, artificially heated or cooled air, heating oil or other service (including telephone, radio or television services) within a lot.

(2)  An owners corporation may carry out work referred to in this section at its own expense if the cost of the work cannot be recovered from some other person.

65   Can an owners corporation enter property in order to carry out work?

(1)  An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of carrying out the following work:

(a)  work required to be carried out by the owners corporation in accordance with this Act,

(b)  work required to be carried out by the owners corporation by a notice served on it by a public authority,

(c)  work required to be carried out by the owners corporation by an order under this Act.

(2)  An owners corporation may, by its agents, employees or contractors, enter on any part of the parcel for the purpose of determining whether any work is required to be carried out by the owners corporation in accordance with this Act.

(3)  In an emergency, the owners corporation may enter any part of the parcel for those purposes at any time.

(4)  In a case that is not an emergency, the owners corporation, may enter any part of the parcel for those purposes with the consent of any occupier of that part of the parcel or, if the occupier does not consent, in accordance with an order of an Adjudicator under section 145.

(5)  A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section.

Maximum penalty: 2 penalty units.

(6)  An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.

65A   Owners corporation may make or authorise changes to common property

(1)  For the purpose of improving or enhancing the common property, an owners corporation or an owner of a lot may take any of the following action, but only if a special resolution has first been passed at a general meeting of the owners corporation that specifically authorises the taking of the particular action proposed:

(a)  add to the common property,

(b)  alter the common property,

(c)  erect a new structure on the common property.

(2)  A special resolution that authorises action to be taken under subsection (1) 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.

(3)  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.

(4)  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 such a by-law.

(5)  A by-law made for the purposes of this section:

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

(b)  must not be amended or repealed unless a special resolution has first been passed at a general meeting of the owners corporation and the owners corporation has obtained the written consent of the owner concerned.

(6)  The provisions of sections 52 (3), 54 (2) and (3) and 55 apply to a by-law made for the purposes of this section in the same way as those provisions apply to a by-law to which Division 4 of Part 5 of Chapter 2 applies.

65B   Owners corporation may grant licence to use common property

(1)  An owners corporation may grant a licence to an owner of a lot to use common property in a particular manner or for particular purposes if the owners corporation has approved the granting of the licence by special resolution passed at a general meeting of the owners corporation.

(2)  A licence may be granted subject to terms and conditions.

Note. Division 4 of Part 5 of Chapter 2 enables owners corporations to make by-laws granting exclusive use rights and special privileges (including licences) in relation to common property.

65C   What are the duties of an owners corporation in relation to fire safety inspections

(1)  A person authorised to carry out an inspection under the Environmental Planning and Assessment Act 1979 of a building or premises for purposes relating to fire safety may give a notice in writing to an owners corporation for a strata scheme requiring the owners corporation to ensure that access is provided, within a period or at a time specified in the notice, to the common property of the strata scheme and, if so specified, some or all of the individual lots in the strata scheme.

(2)  An owners corporation must comply with a requirement of a notice given to the owners corporation under this section.

Maximum penalty: 20 penalty units.

(3)  It is a defence to a prosecution for an offence against subsection (2) consisting of a failure to ensure that access is provided to a lot in a strata scheme if the owners corporation establishes that the owner or occupier of the lot refused to allow the access or could not be contacted by the owners corporation.

(4)  For the purposes of the Environmental Planning and Assessment Act 1979, access to a building or premises or part of a building or premises given to a person in accordance with this section, or in accordance with an order of an Adjudicator made under section 145 for the purposes of this section, is taken to be a permission given to that person by the occupier of the building, premises or part to enter the premises and carry out the inspection concerned.