NSW: How to Enforce Against Unauthorised Works

This article about how to enforce against unauthorised works has been supplied by Kerin Benson Lawyers.

Unauthorised works are works to common property that are not cosmetic works, as defined by section 109 of Strata Schemes Management Act 2015, and that a lot owner has undertaken without consent of the owners corporation.

Minor renovations, which are defined by section 110 of the Act, require authorisation by a general resolution of the owners corporation (or the strata committee if a minor renovation by-law is registered). Works that are not defined as minor renovations and require authorisation by special resolution of the owners corporation are works that involve adding to, altering or erecting a new structure on common property, and include structural works, works that change the external appearance of the lot, and works that involve waterproofing.

Owners corporations and lot owners record their agreement to allow a lot owner to do works to the common property by specially resolving to make and register a common property rights by-law. The by-law stipulates the terms and conditions on which a lot owner can carry out the works. By-laws are only enforceable once registered, so it is preferable to obtain approval by way of a registered by-law prior to works being carried out.

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What about works that have gone on where no authorisation was sought? There are options:

1. If the owners corporation is aware that unauthorised works have been carried out, they may require the lot owner to provide them with a full scope of works, plans, drawings, structural reports, warranties, insurances for the contractors and a draft common property rights by-law granting retrospective approval to the lot owner which will need to be considered at a general meeting. The lot owner will also have to provide their written consent to the making of the by-law. If the owners corporation is satisfied with the works and the by-law, the owners corporation will specially resolve to make the by-law and once registered, the works will be authorised. This is a relatively quick and cost effective way to authorise works.
2. If the owners corporation knows the extent of the works and they wish to allow them but the lot owner refuses to make a by-law or provide their written consent to the making of a by-law, the owners corporation can propose a common property rights by-law. Provided that the terms are reasonable, even if the lot owner refuses to provide their consent to the by-law, the owners corporation can apply to the NSW Civil and Administrative Tribunal for order that the by-law be made.
3. As it is the owners corporation’s duty to repair and maintain the common property, they may demand that the lot owner return the common property to its original condition. Failing compliance, the owners corporation may seek orders from the Tribunal to enter the lot to carry out works to restore the common property and then seek the costs of doing so from the lot owner.

We note that any action in the Tribunal for the above will require mediation with Fair Trading before a Tribunal application is accepted.

Kerin Benson Lawyers drafts common property rights by-laws, including retrospective by-laws, for $600.00. We also act for owners corporations and lot owners in the Tribunal and at Fair Trading in relation to unauthorised works. If you have a question on the above or would like a costs agreement, please contact us.

This post appears in Strata News #359.

Have a question about how to enforce against unauthorised works or something to add to the article? Leave a comment below.

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Kerin Benson Lawyers P: 02 4032 7990 E: enquiries@kerinbensonlawyers.com.au

This article contains general information only and it is not legal advice. Before you take any action you should seek legal advice tailored to your specific circumstances.

Read next:

• NSW: Are We All Getting It Wrong? Unauthorised Works: Who Is Responsible For Repairing Them?
• NSW: Q&A Capital Works Fund – What Do We Need To Do Now?
• NSW: Works approval orders under the Strata Schemes Management Act 2015: How do they work in practice?

This article has been republished with permission from the author and first appeared on the Kerin Benson Lawyers website.

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