A lot owner from NSW is wondering who is responsible to replace the screen door in their old unit block.
Question: An owner with mobility issues has had their door broken down multiple times for emergency services access. Is the OC obligated to replace the door due to the owner’s circumstances?
I am 80 and lived in this building for 40 years. My muscles are atrophied. I cannot get up if I lose balance and fall to the floor. Three times, emergency personnel accessed my lot by breaking down my door. The door is no longer secure, and I do not feel safe.
Our chairperson stated the OC intended to replace all unit doors because of stairwell noise issues and asbestos concerns. I’ve requested my door is replaced urgently. I’ve been told that although unit doors are common property, under the circumstances, I am required to pay for my new door. Where do I stand?
Answer: The owners corporation must repair the door, and it sounds like there’s a serious safety risk with asbestos fibres likely being released into the air from the damage.
An owners corporation’s paramount duty is to repair and maintain the common property (such as the entry door to the lot). This duty is set out in Section 106 of the Strata Schemes Management Act 2015 (NSW) (‘the Act’).
There are three main instances where the owners corporation does not need to repair and maintain the common property:
- If it makes a decision by special resolution: An owners corporation can determine, by special resolution in a general meeting, that it is inappropriate to maintain, renew, replace or repair the property. However, it can only make this decision if it 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.
- During litigation: If an owners corporation has taken legal action against an owner or other person in respect of damage to the common property, it may defer repair and maintenance of common property in relation to the damage to the property, until the completion of the action. However, it can only do this if the failure to repair and maintain will not affect the safety of any building, structure or common property in the strata scheme. Interestingly, the legislation doesn’t mention safety of a person. One would think this is implied.
- If a common property rights by-law exists: When an owner has been authorised to make changes to common property (in accordance with Section 108 of the Act), and a by-law has been made, wherein the owner is made responsible for the ongoing repair and maintenance of the affected common property.
In fact, an owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a failure to repair and maintain common property. The owner has two years to do this, from the date when they first became aware of the loss suffered.
In the specific example given, none of the three instances have occurred. The owners corporation must repair the door, and it sounds like there’s a serious safety risk with asbestos fibres likely being released into the air from the damage. The owners corporation could be liable for any ramifications arising from its failure to repair the common property in a timely manner. If the owners corporation wishes to recover costs, it may do so later. But, for now, it must replace the door.
If the owners corporation continues to refuse to replace the damaged door, you can seek orders from the NSW Civil & Administrative Tribunal under Section 232 of the Act.
Installing a lock box would be the best way to prevent damage from continuing to occur. This will require approval under Section 108 of the Act (and the approval process is an entire article in and of itself). The owners corporation would be wise to permit this, as it will prevent the new door from being damaged in the event of another health-related incident. The approval could include a by-law being made, which could make the owner responsible for repair and maintenance of the lock box (and for its eventual removal). Generally, an owner would bear any and all costs associated with making the by-law, so the owners corporation isn’t paying for this.
Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213
This post appears in the October 2024 edition of The NSW Strata Magazine.
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