NSW: Q&A Strata approval for renovations – What is the process?

My unit in our 30 year old block has an original bathroom. I can’t afford a bathroom renovation, but I want to replace the old 3-panel sliding shower screen with a new semi-frameless screen.

Would this be classified as a minor renovation? Does the work require strata committee approval? Are there any additional requirements I should know of?

Answer: The approval requirement depends on how the new shower screen is being installed.

The approval requirement depends on how the new shower screen is installed. If the existing shower door tracks are left in place or the proposed works do not disturb the tiling and waterproof membrane underneath, then yes, this would be classified as minor works. An approval via a strata committee meeting of at least 51% of votes cast would suffice.

However, the moment the tiles, shower tray or waterproofing membrane is removed or affected, the works would be deemed a major renovation which requires approval at a general meeting of the owners corporation, and a special resolution (at least 75% of votes cast) is required to approve the works.

Remember to provide the plans of the works, including the date and times of work, as well as the licence and insurance details of your installer or contractor to ensure you have recourse in the event of a mishap. Otherwise, you may be held liable for any corrective/restorative action required under Section 120 of the Strata Schemes Management Act 2015. All renovation works undertaken by the lot are ultimately the responsibility of the lot owner to repair and maintain.

Something else to note for renovation requests is that any strata scheme registered before 1 July 1974 may not be subject to the current renovation work approval requirements, as the lot and common property boundaries are different.

Wenna Wu STRATA EVOLUTION E. Wennaw@strataevolution.com.au P: 1300 819 677

This post appears in the December 2024 edition of The NSW Strata Magazine.

Question: Do urgent bathroom repairs to the lot need to go through the normal renovation approval process?

In my ground-floor apartment, the bathtub has rusted through and is potentially leaking into the subfloor. This semi-urgent repair requires quick attention.

Do I pass a by-law via the normal renovation approval process? Is that a major renovation requiring a by-law to be drawn up by a solicitor, EGM with strata manager, voting, etc? Tiles and the bathtub will need to be removed and replaced.

Answer: Only once the by-law is approved and registered, works may proceed.

The bathtub/tiling removal will involve waterproofing works, so, yes, a by-law will be required to be passed by special resolution at a general meeting of the owners corporation.

The consent of the owner is also required for the making of the by-law.

Only once the by-law is approved and registered, works may proceed.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #700.

Question: If lot owners are renovating inside their lot, why do their renovation by-laws refer to common property?

A lot owner in our building is applying for approval to renovate their lot. Why does their special by-law No 5 – Works and exclusive use refer to sections 108 and 143? The by-law allows for the erection of new structures on common property and grants owners special privileges/exclusive use rights over common property. What does owners corporation approval allow them to do to common areas? They are renovating the inside of their apartment, so why is common property mentioned in their by-law?

Answer: If an owner renovated a bathroom, they would require the proper authorisations to alter the common property e.g. tiles, waterproofing etc.

As a strata owner, you own the cubic air space of a lot, which is, generally speaking, the upper surface of the floor, the inner surface of the walls and the under surface of the ceilings. So, generally, in strata, you do not own the floor, wall or ceilings. They are actually common property.

If, for example, an owner was renovating a bathroom, they would be removing common property tiles, waterproofing, ceilings, etc and require the proper authorisations to alter the common property, and, for example, if an externally vented bathroom exhaust was installed, exclusive rights for that installation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #699.

Question: My renovation by-law was approved at the AGM but not registered in the minutes. I have to wait until the next AGM for the minutes to be amended. I’ll be outside of the time limit to register the by-law. Can I resubmit or register late due to this error?

I submitted a renovation by-law for approval. Although the by-law was placed on the agenda and approved, this was not recorded in the minutes. When I notified the strata manager, they refused to amend the draft minutes and said changes would only be made at the next AGM when the draft minutes were approved or amended.

My solicitor could not register the by-law because I had no proof it was passed. I have to register the by-law within six months of it being passed, so even if the minutes are amended at the next AGM, I can not register the by-law.

Do I put the by-law up for approval again? Can I do this if it has already been approved? If the draft minutes are amended at the next AGM, can I still register my by-law if it is out of the 6 months registration period?

Answer: If you are still within the 6 month period to register your by-law, I would start by lobbying the strata committee to correct the meeting minutes.

This is very unfortunate. If you are still within the 6 month period to register your by-law, I would start by lobbying the strata committee to correct the meeting minutes. If it was a clear mistake I cannot see the issue with re-issuing the corrected meeting minutes.

You should let the strata committee and your strata manager know of any loss you may suffer due to the strata manager’s refusal to correct the meeting minutes and your inability to register the by-law. This may be, for instance, forfeiting a deposit under a contract for works. The secretary will be able to override the strata manager’s refusal and re-issue the meeting minutes as the power to issue meeting minutes is, in fact, the secretary’s. It is only delegated to the strata manager.

If you are outside of the 6 month time frame, you will have to have your by-law motion re-passed and then registered.

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

This post appears in the June 2024 edition of The NSW Strata Magazine.

Question: An owner enclosed his balcony to create any additional liveable space. Retrospective approval included a motion that the owners corporation accepts the structure as built. The owners corporation has accepted this. What risk does this expose us to?

Without correct approvals, an owner in our ten lot strata scheme has enclosed his balcony with glass panels/doors to create an additional liveable space. This work changes the outside appearance of the building.

He completed the work without council approval or complying with the Design and Builders Practitioners Act or owners corporation approval which he subsequently obtained eight months later.

His motion to seek approval was subsequently changed at the meeting to include that the owners corporation accepts the structure as built. In other words, the owners accept an illegal non complying structure on the building. This potentially affects the building insurance and the value of the building and individual units. I objected that the change in the motion materially changed the intent of the original motion, which was to approve the enclosure off the balcony, not the enclosure on the balcony.

The owners corporation now does not wish to request compliance. Does this expose us to any risk? As an owner, what can I do?

Answer: Seek to have this motion brought up at the next general meeting.

This owner who has enclosed his balcony should submit a special by-law to the owners corporation for approval to ensure he remains responsible and liable for the ongoing maintenance. You could seek to have this motion brought up at the next general meeting. The difficulty here is that the lot owner can seek to obtain retrospective approval from the owners corporation.

At the meeting, you may wish to raise that the owner completed the work without compliance with the Strata Schemes Management Act 2015 and requirements of the Design and Builders Practitioners Act. The Owners Corporation could consider escalating this matter to the Tribunal to enforce the breach of the by-laws. I would be happy to advise further with you directly in this regard.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in the September 2023 edition of The NSW Strata Magazine.

Question: We have a by-law for every renovation, some with multiple pages. We’ve ended up with a large number of by-laws. Many of the by-laws have no relevance for current residents. What is the answer to this dilemma?

Answer: you may wish to engage the services of a strata solicitor to draft you a “generic” by-law for all major and minor renovations.

It will be difficult to condense your by-laws as any amendments to those by-laws passed require the written consent of each owner benefited (unless you think such consent will be forthcoming from all owners).

Moving forward, you may wish to engage the services of a strata solicitor to draft you a “generic” by-law for all major and minor renovations, which includes the wording of a short form by-law to be passed for a specific renovation for a specific owner. That will reduce the volume of pages in future.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #649.

Question: I paid a $500 bond for renovations 18 months ago. The work is now complete and has been signed off. I’ve requested a refund of the bond. Our strata manager says it cannot be repaid till the next AGM in a few months. Is this correct?

Answer: Review the precise terms of your by-law.

You should review the precise terms of your by-law as that will set out the procedure for having your bond (or part thereof) refunded. The by-law may state that the owners corporation must be satisfied you have complied with your works by-law but usually the by-law will state that the strata committee can authorise its release (provided it is satisfied you’ve complied with the by-law).

Despite the above, it seems an inordinate delay for you to have waited almost 2 years and you should press the strata manager/strata committee for reimbursement.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #631.

Question: How is the lot owner’s consent to the major renovation bylaw usually presented to the OC? For this transfer of responsibility to be effective, should we receive the written consent of all the owners of that lot?

I understand that section 108 of the SSMA states that a registered major renovations bylaw makes a lot owner responsible for ongoing maintenance of common property affected by the major renovations. For this transfer of responsibility to be effective, should we receive the written consent of all the owners of that lot? Neither our strata manager nor the lot owner has mentioned this. Our strata manager is intending to use a ‘recycled’ bylaw that has been used for similar major renovations previously.

Is there some form of written consent that must be undertaken? Can we request a letter from the owners of the lot agreeing to pass the bylaw that is included with the General Meeting agenda at the same time the bylaw is put to the meeting for a vote? Are there examples of this type of acceptance?

How is the lot owner’s consent to the major renovation bylaw under section 108 of the SSMA usually presented to the OC?

Answer: Most lawyers who prepare such by-laws provide a generic form of consent which is attached to the by-law.

There is no prescribed form or specific format for the required consent.

As you correctly state, Section 108 (5) of the Strata Schemes Management Act, 2015 (NSW) requires the written consent to the making of the by-law from the owner benefited and their consent to fulfil the repair and maintenance responsibilities set out therein.

Most lawyers who prepare such by-laws provide a generic form of consent which is attached to the by-law. It usually takes the form of a letter setting out the terms of their consent with the names of the owner(s), the subject lot, the date, signature panel and agreement to pay all the Owners Corporation’s costs in the preparation and making of the by-law (ie drafting and registration/consolidation).

There is no requirement to register or lodge the consent though the strata manager or strata committee will normally file the consent for their records.

See below relevant extract of the Strata Schemes Management Act 2015, Section 108 (5).

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—
1. 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
2. the owners corporation makes the by-law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #620.

Question: Should a Special Resolution for a by-law include the full by-law, which runs to two pages, or reference it as an attachment?

We are looking to renovate our bathroom. Should a Special Resolution for the by-law include the full by-law, which runs to two pages, or reference it as an attachment?

There is an Attachment A to the by-law which is includes builder’s details and a description of the work to be carried out.

Answer: We recommend that all particulars/details of the works be included within the text of the by-law itself.

For abundance of caution, we recommend that all particulars/details of the works be included within the text of the by-law itself as this is the document (once passed) which is registered on the folio of the common property with the Registrar General’s Office (NSW Land Registry Services) and becomes the permanent record of the approvals passed by the Owners Corporation.

However, your strata managing agent may keep on file this “Attachment A” together with the lot owner’s written consent both of which would be cross-referenced in the by-law and be available for production should a dispute arise.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #595.

Question: We provided all relevant documentation for approval to install hardwood flooring to our strata manager. If we aren’t given approval despite meeting all requirements, is this reasonable?

We are looking to remove existing carpets in our unit and replace them with hybrid flooring. This is currently determined to be a minor renovation according to our by-laws. We provided all of the relevant documentation to the strata manager, including acoustic reports, insurances and quotes for the chosen AAAC 6 Star rated floor finish over a month ago to put to the committee to vote.

We are not sure if the strata manager has even put forward the request to the committee at this point and avoids answering every time I have asked. If he has put forward the flooring for consideration and the committee has cast a no-vote regardless of the fact that we have met all requirements, would this be considered unreasonable? The strata manager keeps referring to a previous instance of a resident installing flooring that was not to standard as a reason as to why he doesn’t ‘think’ that the committee will approve.

Answer: If your application is unreasonably refused, you can seek orders from NCAT.

Approval of minor renovations by a strata committee

Section 110(6)(b) of the Strata Schemes Management Act (‘the Act’) allows an owners corporation to delegate the function of considering minor renovations (such as “installing or replacing wood or other hard floors”) to its strata committee. To do so, the owners corporation must have registered a by-law that expressly provides the delegation. In the absence of a by-law, minor renovations can only be approved by ordinary resolution at a general meeting of the owners corporation.

How long does the owners corporation or strata committee have to consider the application?

There is no law that specifies a time frame in which the owners corporation or its strata committee must consider an application.

Section 43(f) of the Act grants the Secretary the power to convene strata committee meetings, general meetings and annual general meetings.

Section 18 of the Act requires the annual general meeting to be held once each financial year. For strata committee meetings and general meetings, there is no requirement for the Secretary to convene them (unless they’ve been forced to do so, which is explained in the article linked further below in this article).

If an owner has submitted a motion under Schedule 1, clause 4 of the Act, it must be included in the agenda of the next general meeting (whenever that is convened).

How do I make it happen if the Secretary refuses to convene a meeting?

The Strata Managing Agent may have been delegated functions of the Secretary under section 51 of the Act, by way of their appointment and under the terms of their agreement. However, the Secretary’s powers supersede the delegation (in other words, if the Secretary invokes their rights, duties and obligations, the Strata Managing Agent cannot overrule them).

Otherwise, there are other mechanisms to force a meeting to be held – check out the response to the question “Question: At our AGM, a special levy was approved to replace aged windows. An owner has since challenged the decision and is seeking to have it overturned. What are the chances the decision will be overturned and if so, how do we fix the damaged windows?” on the “NSW Overruling Strata Committee Decisions” page of LookUpStrata.

What is the Strata Managing Agent’s role in all of this?

The Strata Managing Agent would assist in communicating between the Strata Committee and the applicant. It is not unusual for a Strata Committee to review an application for works simply to provide feedback on its prospects, but ultimately the decision to approve or deny the application must be made at a formal meeting. The Strata Managing Agent’s role is to give advice but not to make decisions or pass judgement on the application.

What if my application is taken to a meeting and is then unreasonably refused?

Section 126 of the Act allows an owner to seek orders from the NSW Civil & Administrative Tribunal, ordering an owners corporation to give consent to minor renovations or other alterations to common property directly affecting the owner’s lot. The Tribunal would need to be satisfied that the owners corporation has unreasonably withheld its approval.

How else can I move this forward?

Whilst the strata committee and owners corporation may not be obligated to hold a meeting (unless for the reasons mentioned in the linked article), it is not uncommon for an owner to want to renovate. It is most common for those leasing their property to want to renovate in-between leases. Here are a few tips:

Allow plenty of time and apply early. The approval process can take weeks or months. Once you know you want to renovate, start the dialogue with the Strata Managing Agent or Strata Committee. It is always worthwhile getting approval well before wanting to carry out the works. Approvals don’t have a time limit on them either.

Offer to cover the owners corporation’s costs. Meetings do cost money to run, and often applications will be left for a future meeting in order to minimise costs. Offering to cover those costs could remove any financial concerns by the owners or committee members.

Communicate and understand any concerns. Sometimes the concerns may be legitimate. Other times, they could be misconceived or unreasonable. Speaking to experts will guide you on what is unreasonable. By-laws can be unreasonable, and just because one is registered, does not guarantee it is not unreasonable.

Seek legal advice if you must. It is the last resort, but a lawyer specialising in strata law will be able to advise you and the owners corporation on the law and any cases relevant to the circumstances.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in Strata News #592.

Question: How do we know if an alteration is a minor or a major renovation?

How do we determine if an alteration falls within the minor or major renovation category?

We have had a request from a lot owner to move their hot water system onto the balcony so they can replace it with a larger unit. It will involve drilling holes into the external wall and re-configuring plumbing.

Answer: Refer to these sections of the act.

Minor renovations are defined in S110 of the SSMA and S28 of the SSMA Regulations.

I don’t believe that work proposed is minor in nature as it involves external common property walls and maintaining a HW tank permanently outside on the balcony.

STRATA SCHEMES MANAGEMENT ACT 2015 – SECT 110

Minor renovations by owners

The owner of a lot in a strata scheme may carry out work for the purposes of minor renovations to common property in connection with the owner’s lot with the approval of the owners corporation given by resolution at a general meeting. A special resolution authorising the work is not required.

The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.

“Minor renovations” include but are not limited to work for the purposes of the following–
1. renovating a kitchen,
2. changing recessed light fittings,
3. installing or replacing wood or other hard floors,
4. installing or replacing wiring or cabling or power or access points,
5. work involving reconfiguring walls,
6. any other work prescribed by the regulations for the purposes of this subsection.

Before obtaining the approval of the owners corporation, an owner of a lot must give written notice of proposed minor renovations to the owners corporation, including the following–
1. details of the work, including copies of any plans,
2. duration and times of the work,
3. details of the persons carrying out the work, including qualifications to carry out the work,
4. arrangements to manage any resulting rubbish or debris.

An owner of a lot must ensure that–
1. any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and
2. the minor renovations and any repairs are carried out in a competent and proper manner.

The by-laws of a strata scheme may provide for the following–
1. additional work that is to be a minor renovation for the purposes of this section,
2. permitting the owners corporation to delegate its functions under this section to the strata committee.

This section does not apply to the following work–
1. work that consists of cosmetic work for the purposes of section 109,
2. work involving structural changes,
3. work that changes the external appearance of a lot, including the installation of an external access ramp,
4. work involving waterproofing,
5. work for which consent or another approval is required under any other Act,
6. work that is authorised by a by-law made under this Part or a common property rights by-law,
7. any other work prescribed by the regulations for the purposes of this subsection.

Section 108 does not apply to minor renovations carried out in accordance with this section.

28 Minor renovations by owners

Work for the following purposes is prescribed as minor renovations for the purposes of section 110(3) of the Act–

removing carpet or other soft floor coverings to expose underlying wooden or other hard floors,

installing a rainwater tank,

installing a clothesline,

installing a reverse cycle split system air conditioner,

installing double or triple glazed windows,

installing a heat pump,

installing ceiling insulation.

Andrew Terrell Bright & Duggan E: Andrew.Terrell@bright-duggan.com.au P: 02 9902 7100

This post appears in Strata News #588.

Question: Our renovation has been approved but we have been told to cease work until the bylaw has been registered. As approval has been granted, is it reasonable to withhold consent to commence?

We are looking to renovate our kitchen and bathroom. Strata has approved the renovation however the Strata Manager says we can’t start any work until the bylaw is registered. They state this could potentially take up to 3 weeks.

Given the works have been approved by the owners corporation and it will be the strata’s Solicitors attending to the registration process, is it reasonable to withhold consent to commence?

Answer: It is reasonable to demand that you wait until the by-law has been registered

A by-law has no force or effect until it is registered or recorded at the office of the Registrar-General (NSW Land Registry Services) on the common property certificate of title.

Therefore, yes, it is reasonable to demand that you wait until the by-law has been registered (presumably at your sole cost and expense), however, 3 weeks seems a bit of a long wait given that PEXA electronic registration takes 1 – 2 business days (once all the necessary documentation has been executed and lodged).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #584.

Question: An owner in our 46 unit strata scheme wishes to add a room to his lot. Work involving reconfiguring internal walls is classified as minor works in the scheme’s by-laws, but is planning or additional permission required in respect of the strata plan or from the local council?

Answer: The proposed changes are effectively a change in use. Council approval will be required as well as approval of the Owners Corporation. A by-law would also need to be prepared and submitted for approval by the Owners Corporation. Approval may include development consent or complying development consent to proceed depending on the scope of works.

The proposed changes are effectively a change in use. Council approval will be required as well as approval of the Owners Corporation. A by-law would also need to be prepared and submitted for approval by the Owners Corporation. Approval may include development consent or complying development consent to proceed depending on the scope of works.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #568.

Question: Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. If damage occurs, who repairs the common property?

Minor Renovations in NSW can involve interfering with common property without the need for a special resolution. For example: Unit X’s owner replaces the unit block-standard single-glazed windows with double-glazed windows in Unit X only. In the event of damage to Unit X’s windows or to the wall around them (e.g. from water ingress):

does the owners corporation have to pay only the cost of replacing the unit block-standard single-glazed windows, with Unit X’s owner paying the difference since he wants double-glazing?

Importantly, how would you formalise (a) above, given that no special resolution is required?

who pays to fix the wall damaged by water ingress through Unit X’s new, double-glazed windows?

I am relying here on:

Section 28 of the Strata Schemes Management Regulation 2016; and

Section 110 of the Strata Schemes Management Act 2015.

Answer: It would be prudent for the owners corporation to make a by-law even though it is not required to.

Section 110 (minor renovations by owners) of the Strata Schemes Management Act (‘the Act’) does contain two key subsections relevant to the circumstances:

Minor renovations by owners

Section 110(2) – “The approval may be subject to reasonable conditions imposed by the owners corporation and cannot be unreasonably withheld by the owners corporation.”

Section 110(5) – “An owner of a lot must ensure that: (a) any damage caused to any part of the common property by the carrying out of minor renovations by or on behalf of the owner is repaired, and (b) the minor renovations and any repairs are carried out in a competent and proper manner.”

However, in my opinion it does not specifically transfer the ongoing obligation of repair and maintenance for the affected common property to the lot owner in the same way that a special resolution and by-law under section 108 of the Act would do.

Therefore, one of the “reasonable conditions” the owners corporation may want to impose is that the owner of the lot, from time to time, is responsible for the ongoing repair and maintenance of the common property and furthermore any damage caused to the common property as a result of the works. These should be included in the motion.

One challenge with this approach is that an owners corporation is only required to keep certain records (such as the meeting minutes that contain these conditions) for 7 years, and so the conditions could be lost over time.

For that reason, it would be prudent, in my opinion, for the owners corporation to make a by-law even though it is not required to. This will ensure that the obligations are recorded on title, forever.

It would therefore allow the owners corporation to clarify the answer to the questions you raise long after the decision was made.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in the May 2022 edition of The NSW Strata Magazine.

Questions: I’m seeking approval for new floorboards, but the committee insists upon a specific and expensive underlay. Can the owners corporation determine what underlay I use if I’m able to meet their requirements with a product I have chosen?

I’m seeking permission from the Exec Committee to update my old floating floorboards to new hybrid flooring.

The committee only approves flooring if you commit to either using a very specific, made to order and expensive underlay or pay for your own acoustic testing report.

I have provided evidence that the underlay I propose exceeds the acoustic report recommendations the committee has provided.

Can the owners corporation determine what underlay I use if I’m able to meet their requirements with a product I have chosen?

Answer: If you have provided probative evidence that your choice of underlay meets or exceeds the strata committee’s specifications, their demands may be construed as being “unreasonable”.

Your works are categorised as “minor renovations” under the Strata Schemes Management Act, 2015 (NSW) (“Act”) provided they do not involve waterproofing and other exceptions.

If your strata committee is imposing these requirements, it appears that they have been delegated the power to approve “minor renovations” under the Act.

The Owners Corporation/strata committee may only impose reasonable conditions and approval cannot be unreasonably withheld by the Owners Corporation/strata committee as stated in the Act.

In our view, if you have provided probative evidence that your choice of underlay meets or exceeds the strata committee’s specifications, their demands may be construed as being “unreasonable”.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the May 2022 edition of The NSW Strata Magazine.

Question: If a generic by-law for waterproofing is approved by the Owners Corporation, must subsequent requests for renovations requiring waterproofing still need to be approved by a special resolution?

I am secretary of a strata committee grappling with bathroom renovations.

If a generic by-law for waterproofing is approved by the Owners Corporation, must subsequent requests for renovations requiring waterproofing still need to be approved by a special resolution of the Owners Corporation or can this approval be provided by the Strata Committee?

My confusion arises because the NSW Fair Trading website says approval for waterproofing cannot be delegated to a Strata Committee (as opposed to Minor renovations, which can). I have heard conflicting options on this point.

Answer: Under the by-law the strata committee may be delegated the responsibility to obtain all relevant specifications, certifications, insurances, dilapidation report.

Once a generic by-law is passed which regulates all bathroom renovations in your scheme, under the by-law the strata committee may be delegated the responsibility to obtain all relevant specifications, certifications, insurances, dilapidation report etc. in accordance with the terms and conditions of the by-law.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #558.

Question: I’d like to carry out minor renovations to my unit’s bathroom and kitchen. What is a reasonable amount of time for the committee to approve minor renovations once all plan documents have been provided?

Answer: The owners corporation has failed to exercise its function if it does not exercise it within 2 months of the making of your application.

When considering what is reasonable, you must take into account notice provisions under the strata legislation (3 clear days of notice of meeting) and the postal rule (7 business days) if the strata committee agenda is being posted through Australia Post. You would also need to allow adequate time to convene the subject meeting ie it would be unreasonable to expect the strata manager to convene a meeting of the strata committee in a couple days just to consider your application.

The strata legislation generally states that the owners corporation has failed to exercise its function if it does not exercise it within 2 months of the making of your application.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #558.

Question: I’d like to change my apartment flooring from carpet to tiles. Do I need a bylaw before beginning renovations in a strata property?

I own and live in an apartment building in NSW. I’d like to change my flooring from carpet to tiles. Our Strata Manager has said a bylaw may first be needed as the tiles will be attached to my floor which is common property.

Is a by-law required or is there any way I can carry out the renovation without needing a bylaw?

Answer: You need to look at the existing by-laws for your scheme and its process for approving minor renovations.

In short, you need to look at the existing by-laws for your scheme and its process for approving minor renovations. In particular, check if your scheme has a by-law relating to floor coverings and noise transmission, particularly to other lots.

Some schemes have made by-laws specifically related to hard flooring. Such by-laws may make allowance for hard floor surfaces like tiles to be installed, subject to the floor underneath being treated to ensure the noise transmitted is below a certain acoustic rating. Make sure you follow the correct approval process as this will help to avoid disputes with your neighbours and the cost of having to reinstate floor coverings later.

If your scheme was registered prior to 1996, its by-laws may contain the by-law relating to floor coverings (by-law 14) from Schedule 2 to the Strata Schemes Management Regulation 2016. This by-law provides that all floor space, other than that in a kitchen, laundry, lavatory or bathroom, must be treated so as to sufficiently prevent the transmission of noise that is likely to disturb the peaceful enjoyment of the owner or occupier of another lot. This does not mean that tiles cannot be installed but may mean that an acoustic underlay or other floor treatment may be needed to minimise the impact of the hard flooring on your neighbours.

Even if there is no by-law relating to floor coverings or hard flooring, you still have an obligation to not create noise that may interfere with another lot owner’s or occupier’s peaceful enjoyment of their lot. This obligation is usually set out in By-Law 1 for schemes registered prior to 30 November 2016 or by-law 6 in post 30 November 2016 schemes.

Your request to install tiles in your apartment would be considered “minor renovations” to common property, pursuant to s110 of the Strata Schemes Management Act 2015. One of the minor renovations specifically listed is “installing or replacing wood or other hard floors”.

Minor renovations require the approval of the owners corporation before you carry out the work. A motion regarding the work to be undertaken would be considered at a general meeting. A majority is required for the motion to be approved. Alternatively, the Committee can approve minor renovations, but only if they have been delegated the power to do so pursuant to a by-law.

When submitting your request, you may need to provide details of the work to be undertaken, such as:

Any plans of the work

When the work will be carried out

Qualifications and details of the tradespeople who will do the work

Specifications of any products being used to treat the floor to prevent noise transmission and any guarantees or warranties that may be given by the manufacturer or installer.

The owners corporation may grant approval subject to reasonable conditions and its consent cannot be unreasonably withheld. Conditions may include ensuring your flooring meets a certain acoustic standard or the requirement for documentation, such as an acoustic engineer’s report to be provided once the tiles have been installed.

On the face of it, you may not need a by-law to carry out this work if the proper approval process is followed. That said, it may be prudent and appropriate for the owners corporation to insist on a by-law. If they prefer you put a by-law in place before the work is carried out, they have the option of drafting it in a way that outlines a fair and reasonable approval process for not just you, but all owners that may wish to carry out this work in the future.

Our team would be happy to assist with the drafting of a by-law, if required. Alternatively, you can go online to By-Law Builder and order a Floor Coverings by-law for just $129 + GST.

Nancy Torry Bugden Allen Graham Lawyers E: nancy@bagl.com.au P: 02 9199 1055

DISCLAIMER: This answer, provided to a question on the LookUpStrata website, is not intended to be legal advice. You should seek independent legal advice tailored to your specific circumstances. The information in this article is of a general nature and is not intended to address the circumstances of your particular legal issue.

This post appears in the April 2022 edition of The NSW Strata Magazine.

Question: I live on the ground floor of an apartment and we have a patio and garden area. I would like to build a roof over the patio area. What do I need to consider? What approval do I need to seek?

Answer: This would need approval at a General Meeting of all owners and a Special by-law to be put in place.

Owners Corporation approval for the enclosure of your patio is likely required for a number of reasons and it is suggested this would need approval at a General Meeting of all owners and a Special by-law to be put in place.

Consideration would need to be given on what is defined as your air space on the strata plan for your property. This will specify what is common property vs your lot property air space.

As the patio roof would likely affect the appearance of your lot and it is assumed it is going to be required to be attached to part of the common property (e.g. external walls) an application would have to be made as a renovation affecting common property under Section 108 and 111 of the Strata Schemes Management Act 2015.

This requires approval for the works by Special Resolution and a By-law adopted, both of which would need to be considered at a General Meeting.

Robert Fothergill Strata Life E: Robert@thestratalife.com.au P: 02 9456 9917

This post appears in the March 2022 edition of The NSW Strata Magazine.

Question: What would the consequences be if we approved a lot owner’s request for a bathroom renovation (including the waterproofing) by Special Resolution rather than a By-Law?

Answer: This may result in the Owners Corporation being responsible.

Because the works involve waterproofing and other changes to the common property, Section 108 (5) of the Strata Schemes Management Act, 2015 (NSW) applies. That section specifically states that:

Changes to common property

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–
1. 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
2. the owners corporation makes the by-law.

If the proper process as per the above is not adhered to, the Owners Corporation may encounter difficulties in imposing on the owner the responsibility to repair and maintain the works carried out and may result in the Owners Corporation being responsible.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the March 2022 edition of The NSW Strata Magazine.

Question: As Council requires the owners corporation to sign off on a development application before it can be considered, how much detail is the owners corporation justified in asking the lot owner?

An owner of a lot wishes to put in a DA for change of use of commercial premises in a strata complex that will involve some modifications such as additional toilets. As Council requires the owners corporation to sign off on the application before it can be considered, how much detail is the owners corporation justified in asking of the owner? Can the OC ask for finalised plans and details such as the precise nature of the works including who will perform the work?

Answer: The legislation doesn’t have any restriction on how much information the owners corporation can ask for.

The legislation doesn’t have any restriction on how much information you can ask for. The general rule of thumb is that you should be asking for everything that you need to satisfy yourself that the works are acceptable to you as an Owners Corporation or will have no detrimental impact on another law or the common property.

Generally speaking, we asked for all the plans (where relevant) whether they are plumbing, electrical, architectural, or structural, depending on the nature of works. We also ask for a detailed letter summarising the proposed changes so that we can then determine if a bylaw is required, and what other consents, as an Owners corporation, are required.

You can ask for any information that you need. There is no limit. That’s the short answer.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the February 2022 edition of The NSW Strata Magazine.

Question: Do we need permission from the owners corporation to install an entertaining area, including a sink and lighting, in our villa’s backyard?

In a Villa complex can an owner build an entertainment area in their backyard?

The structure’s roof is attached from the facia board under the eaves of the back of the villa to the dividing fence, using the fence as walls for the entertainment area. The fence height has been raised to 2.2m. A sink has been installed, lighting & a fan.

Does any of this need strata approval or is this structure allowed?

Answer: Yes, strata approval (by way of a by-law as the structure changes the external appearance of the lot) is required from your description. Likely Council approval would be required too.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in Strata News #530.

Question: Can we combine 2 strata lots to create one large lot? What do we need to consider before planning the renovation?

We own a two-bedroom strata apartment and are considering buying the one-bedroom apartment next door to increase our overall space and give each of our daughters their own room, etc.

If no one else’s lots, building stability, etc. are affected and we engage a structural engineer to assess/advise on the work, then commit to make good repairs prior to our sale of either apartment downstream, could we install a doorway between the 2 lots?

Are there any existing precedents for this kind of thing in current strata law?

Answer: You will need a by-law to be passed by special resolution of the Owners Corporation to approve the creation of the doorway.

You will need a by-law to be passed by special resolution of the Owners Corporation to approve the creation of the doorway (together with structural engineering certifications/specifications etc) and the by-law can stipulate the reinstatement of the wall prior to re-sale of either lot if that is the intention. The by-law will also need to be registered on the folio of the common property (Owners Corporation’s certificate of title).

An alternative (but more expensive process) would be to combine the 2 lots by way of strata consolidation ie merge the 2 lots to be one and have the strata plan re-drawn to show both apartments as one. This is done through NSW Land Registry Services and requires a survey plan and various approvals from the Owners Corporation.

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the September 2021 edition of The NSW Strata Magazine.

Question: The owners below me intend to renovate, including removing load-bearing walls. Who is responsible for paying for a dilapidation report?

I own a unit in a block of four. The owners below me intend to renovate, including removing load-bearing walls. The engineers have recommended a dilapidation report be prepared for my unit before the renovations begin.

Who is responsible for paying for this report?

If there is damage to my unit from their renovations, how would this be managed and funded?

Answered: The homeowner who is wishing to undertake the renovations is required to pay for the dilapidation report and to restore the damage to any common property.

The homeowner who is wishing to undertake the renovations is required to pay for this report and to restore the damage to any common property. This is ordinarily set out in the by-law which should be tabled at the annual general meeting or extraordinary general meeting. It appears that the by-law is likely to make provision for a dilapidation report, pre and post the works being undertaken.

A pre dilapidation report is ordinarily prepared and after the work is completed a post dilapidation report is prepared. This will determine whether any damage is caused.

The cost should not fall on you. Any damage which appears in the post dilapidation report should be borne by the owner undertaking the works.

Pierrette Khoury Khoury Lawyers E: pierrette@khourylawyers.com.au P: 0415 459 486

This post appears in Strata News #502.

Question: If there is an existing renovations bylaw in place, does the lot owner need to get a new bylaw if additional renovations fit the original scope of works.

What is the ongoing benefit of a renovation by-law that has been registered against a lot? I have a building I manage where a lot owner obtained a by-law to do renovations in the lot, most specifically to the bathroom and waterproofing membrane. After the renovations, the lot owner sold the unit.

A new owner buys the unit and does not like the renovations and wants to renovate to their taste. Their renovation plans fall completely within the vague scope of works of the renovation by-law (eg “remove existing floor and install new flooring”). If you buy into the history of a unit, its by-laws, and the obligations and responsibilities of the by-law(s), then surely you can buy into the benefits as well. If the scope of works does not change, does the new owner need to get a new by-law for their renovations?

The obligations and responsibilities were already transferred to the new owner when they purchased the unit. They would need to get a renovation application approved by the Owners Corporation, but do they need a new by-law?

Answer: The motion and by-law should be very specific in terms of what works are being undertaken and who is responsible thereafter.

The owners corporation must still approve the renovation works in accordance with section 108 of the Strata Schemes Management Act, regardless of whether or not there is an existing by-law in place.

This is owing to subsection (2), which allows the work to proceed only if the owners corporation has passed a special resolution “that specifically authorises the taking of the particular action proposed.

In the article NSW: Renovation By-Laws – How Much Detail Do I Need To Include published by David Bannerman, Bannermans Lawyers, clarification is given to the need to:

adequately describe the works and the common property area; and

clearly identify who will be responsible for property maintenance of, and keeping in a state of good and serviceable repair, the specified common property are.

In summary, the motion and by-law should be very specific in terms of what works are being undertaken and who is responsible thereafter.

The vague description of the works in this particular by-law may serve to benefit the lot owner by avoiding the need for a new by-law, however it may also place the owners corporation (or the owner) at risk for the reasons mentioned in the article.

Tim Sara Strata Choice E: tsara@stratachoice.com.au P: 1300 322 213

This post appears in the August 2021 edition of The NSW Strata Magazine.

Question: If I replace my old window and the owners corporation decides to replace all windows in the future, will I be liable for the special levy?

I am about to renovate my unit and want to replace an old window with a louver. This process will cost about $5,000. I don’t mind paying, however, if strata want to replace all windows in the future, will I have to pay the special levy for the windows if my window is already replaced?

The committee have talked about replacing the windows for over 2 years, nothing has been done and I am just tired of waiting.

I am getting a bylaw made for my kitchen and bathroom renovations and am thinking I can just include the window replacement in this.

Answer: You may remain liable to contribute to the special levy

Yes, you may include your window works within one and the same by-law. The owners corporation may include a provision that if they do replace the windows, in case yours is not identical to their proposal (or potentially, if it is), that it is subject to replacement in the course of the owners corporation’s works (and therefore, you would remain liable to contribute to the special levy).

Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440

This post appears in the July 2021 edition of The NSW Strata Magazine.

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