VIC: Q&A Approval for Renovations / Changing Appearance of the Lot

These Q&As discuss Owners Corporation approval required to renovate the apartment including consideration for changing the appearance of the lot.

Table of Contents:

• QUESTION: We’d like to install skylights. If we agree to be liable in case of damage, can the committee refuse our renovation because the roof is common property?
• QUESTION: Without consultation or approval from owners, the owners corporation manager and committee are changing the colour of our building’s façade. Should this be a special resolution?
• QUESTION: Our rules govern exterior fixtures and colours of curtains but do not explicitly mention outward appearance. What are the OC’s rights to dictate appearance?
• QUESTION: The neighbour upstairs is installing an air conditioner on our wall. We’ve never been asked about the installation. How do we have it moved?
• QUESTION: If an owners carries out substantial renovations without seeking approval from the owners corporation, does this affect our strata insurance?
• QUESTION: I installed two air conditioning units for my apartment without approval. The owners corporation has insisted I move the external units to an unworkable location. Can they insist on this?
• QUESTION: One lot owner in a small villa scheme has painted the outside of their lot without approval. The result is vastly different from the other lots. As the painting has been completed, what can we do?
• QUESTION: My downstairs neighbours have unsightly and offensive objects in their window. Our building is a very nice, refurbished block and their window display is inconsistent with the rest of the units.

Question: We’d like to install skylights. If we agree to be liable in case of damage, can the committee refuse our renovation because the roof is common property?

We’d like to install some skylights in our apartment in Victoria. The roof of the building is common property.

I sent the renovation form to our owners corporation (OC) manager, agreeing among other requirements that:

“We accept liability for any costs associated with damage to common areas by the contractor and charged to the lot owner, and we accept liability for any damage/ water leaks caused or as a result of the renovation work”.

We also confirmed after double checking with the contractor that the works will not compromise the roof structure.

Since December 2021, the OC Act mentions that “a prohibition on the installation of a sustainability item only on aesthetic grounds is taken to be unreasonable”. We believe skylights are sustainability items.

One committee member told me the committee would not approve our renovation request because the roof is common property. Knowing we agreed to be liable in case of damage to common property, can they refuse our renovation because the roof is common property?

Answer: The owners corporation is able to deny your request.

The owners corporation is able to deny your request. Even if the skylight is considered a sustainability item, please see the below from the Model Rules:

3. The owners corporation cannot unreasonably prohibit the installation of sustainability items on the exterior of the lot, including by prohibiting the installation of a sustainability item only on aesthetic grounds.

The above only relates to sustainability items installed on the exterior of the lot, not on common property. Any changes to the common property need the approval of the owners corporation. We recommend you ask the committee for the reasons for their refusal. See if you can reason with them and try and overcome any concerns. Meeting in person and explaining why you want this installed may also help you get approval.

Alex Smale
Melbourne Owners Corporation Services
alex@mocs.com.au
P: 03 9818 2488

This post appears in the November 2024 edition of The VIC Strata Magazine.

Question: Without consultation or approval from owners, the owners corporation manager and committee are changing the colour of our building’s façade. Should this be a special resolution?

Our three-floor apartment building is neutral with brightly coloured decorative poles. Without consultation or documentation, the owners corporation manager and resident’s committee are changing the façade’s colour to black and white. Is it a ‘significant change’? Should this have been a special resolution? I purchased my apartment because of the colour of the building. I stopped the repainting from progressing, and the poles are currently undercoat white.

Question: The Act does not explicitly define what constitutes a ‘significant alteration’, which usually means that each case will turn on its facts.

Section 52 of the Owners Corporations Act 2006 provides that an owners corporation must not make a significant alteration to the use or appearance of the common property unless:

• It is approved by a special resolution; or
• It is permitted under the maintenance plan; or
• It is agreed to under Section 53, which in turn provides for upgrading of the common property approved by special resolution; or
• It is required for safety or to prevent significant loss or damage.

We have assumed the façade is common property in answering this query.

The Act does not explicitly define what constitutes a ‘significant alteration’, which usually means that each case will turn on its own facts. However, changes that affect the appearance, use or functionality of common property, especially those that could impact property values or the enjoyment of the property by residents, are generally considered significant. Member Price analysed this term in Leonie Burke Pty Ltd v Owners Corporation 15762 (Owners Corporations) [2016] VCAT 2053 and said, ‘The word ‘significant’ is suggestive of an alteration which is important, noticeable or of consequence.’ In Leonie Burke, the construction of a new bin corral, which was much larger, more solid and more prominent than the previous structure, was considered to constitute a significant alteration.

Member Buchanan queried whether the removal and replacement of external cladding on a building constituted a significant alteration in Ubertas 505 St Kilda Road Apartments Pty Ltd v Owners Corporation PS544814U (Owners Corporations) [2020] VCAT 1416. Although the matter did not turn on this point, the Member seemed to accept the applicant’s argument that the owners corporation’s proposed replacement panels could significantly alter the appearance of the common property, thus necessitating approval by a special resolution as required by Section 52 of the Act.

The change from a neutral façade with coloured poles to a black and white façade could be viewed as significant because the façade is a prominent aspect of the building’s appearance, is highly visible and could potentially affect the aesthetic appeal and value of the property. Further, assuming the façade is part of common property, it is important that all owners have a say in significant changes. Requiring a special resolution ensures there is a collective agreement, maintaining harmony and preventing disputes among owners.

Having said this, sometimes changes in paint colour are part of necessary maintenance or modernisation efforts. If the change is minor or for the purpose of upkeep, it might be seen as an operational decision rather than a significant alteration, and requiring a special resolution could unnecessarily delay these essential works. It would be prudent to review the maintenance plan to see if it contemplated this change and the reasons behind it. We also recommend you access the meeting minutes to fully understand any documented discussions regarding this change, which in turn may inform your next steps.

Fabienne Loncar
Moray & Agnew Lawyers
E: floncar@moray.com.au
P: +61 3 8687 7319

This post appears in the September 2024 edition of The VIC Strata Magazine.

Question: Our rules govern exterior fixtures and colours of curtains but do not explicitly mention outward appearance. What are the OC’s rights to dictate appearance?

Boundaries on our plan of subdivision are typically exterior face, including apartment walls and fenced gardens backing onto a common area. Our special rules govern exterior fixtures, planter boxes, and colours of curtains but do not explicitly mention outward appearance (such as in the model rules 5.2(1)).

What are the owners corporation’s (OC) rights to dictate appearance, e.g. colours?

If the OC can dictate appearance, are they responsible for the cost of maintaining that appearance, e.g. the painting? In our case, we have included complex painting in the long-term maintenance plan approved at the AGM.

Answer: Each case must be assessed on its precise facts and according to what the plan of subdivision provides.

Whether or not an owners corporation has registered rules, the model rules will apply to the owners corporation to the extent that the registered rules do not cover the subject matter of the relevant model rule.

The owners corporation has the power to make rules concerning the external appearance of lots, and this is specified in Schedule 1 of the Owners Corporations Act 2006. This may include the colour palate. It is in the development’s interest to abide by registered rules concerning external appearance. An owners corporation can undertake work to private lot property (such as painting) only if:

1. it complies with Section 48 of the Act (i.e. provides a notice to a lot owner because it is not properly maintained); or
2. if it is in the course of providing a service to lot owners as authorised by Section 12 of the Act by special resolution; or
3. if it considers it a service in accordance with Section 47 of the Act.

The Tribunal has decided cases where an owners corporation has undertaken repair works to private lot property in circumstances where the works were to items effectively deemed a service (i.e. something that contributed to the structure or support of the building). Owners corporations need to be careful that they incur the costs of completing private lot works in accordance with the Act and strike levies appropriately. In most cases, the private lot owner should bear the major responsibility for the costs of any works associated with private lot property. However, each case must be assessed on its precise facts and according to what the plan of subdivision provides.

Phillip Leaman
Tisher Liner FC Law
E: ocenquiry@tlfc.com.au
P: 03 8600 9370

This post appears in the March 2024 edition of The VIC Strata Magazine.

Question: The neighbour upstairs is installing an air conditioner on our wall. We’ve never been asked about the installation. How do we have it moved?

Our upstairs neighbour is installing an air conditioner. Although there appears to be room on their wall to install the unit, they’re installing it on the exterior back wall of our apartment. We have not received any information or request for this installation.

The owners of the unit refuse to reconsider. Do they have the authority to install the unit on this wall? How can we have the unit moved?

Answer: Clarify the ‘ownership’ of the wall and the surrounding lot boundaries with your OC Manager before considering your next steps.

I suggest clarifying the ‘ownership’ of the wall and the surrounding lot boundaries with your OC Manager before considering your next steps, along with receiving confirmation as to whether the OC Committee approved the installation.

Although you’ve said it is ‘your’ wall, it is often the case that the outer half of a wall is the property of the Owners Corporation. If this is the case and the OC Committee has provided approval for the installation, you would need to submit a formal OC complaint seeking its removal/repositioning. If the OC Committee has not approved the installation, they should be informed and the OC Manager will help them arrange removal or repositioning elsewhere. Please note, however, that there have been instances where OC’s have tried to order removal/repositioning of an air conditioner and failed because the courts deemed it unreasonable to have to do so. Unless you can prove the air conditioner is genuinely impacting your peaceful enjoyment of the property, you and/or the OC may have difficulty attaining your desired solution.

If the wall is private (entirely owned by yourself and/or within your private lot boundary), you are entitled to arrange the air conditioner’s removal from your property however I recommend being careful not to damage it. If you wanted to proceed down this route, I’d strongly recommend giving the owner of the air conditioner a written warning to give them a final opportunity to remove it.

If in doubt or neither of the above suggestions are fruitful, I recommend seeking independent legal advice.

Callum Wilson
Bright & Duggan
E: callum.wilson@bright-duggan.com.au
P: 0427 339 980

This post appears in the February 2023 edition of The VIC Strata Magazine.

Question: If an owners carries out substantial renovations without seeking approval from the owners corporation, does this affect our strata insurance?

One of the owners in our black of 4 units carried out renovations, adding an extra bedroom in the roof space. They did not seek any approval from the owners corporation. They are now selling the unit.

Do the unapproved renovations affect our strata insurance? How do we resolve this.

Answer: Strata insurance is designed to factor in that owners will renovate their property from time to time.

Strata insurance covers building improvements, fixtures and fittings and does not require those items to be approved by the Owners Corporation in order for cover to apply. The owner just needs to demonstrate the property meets the definition of “insurable property” or “building” in accordance with the insurers Product Disclosure Statement.

Therefore, the owners unapproved renovations do not impact insurance as such – but for the following exceptions:

1. The renovations result in claims; or
2. The renovations require the building sum insured to be increased to cover the additional cost of those renovations.  Even in such instances, an additional cover under some policies for “Lot Owners Fixture & Fittings” is designed to cover this shortfall.

Strata insurance is designed to factor in that owners will renovate their property from time to time.

Tyrone Shandiman
Strata Insurance Solutions
E: tshandiman@iaa.net.au
P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #624.

Question: I installed two air conditioning units for my apartment without approval. The owners corporation has insisted I move the external units to an unworkable location. Can they insist on this?

I live in an 8 unit, 2 story apartment complex. I installed two external air conditioning units outside my unit on the first floor prior to owners corporation approval.

The owners corporation has stated they want me to move the external section of the air conditioner. The spot they have indicated is not a viable option as per various air conditioner technicians.

Can the OC reasonably request this change and prevent me from providing heating and cooling to my own unit?

Answer: We recommend you obtain one or two contractor’s reports to support your proposal.

The owners corporation model rules allow it to regulate the exterior appearance of a lot (even if it is private property). That said, an owner could obtain a written consent from the owners corporation to instal air conditional units and must not unreasonably withhold consent. We recommend you obtain one or two contractor’s reports to support your proposal. That would likely compel the owners corporation to favourably consider your proposal. We wish you luck with your consent application to the owners corporation.

Rochelle Castro
RC & Co Lawyers
E: law@rccolawyers.com
P: 1300 072 626

This post appears in Strata News #571.

Question: One lot owner in a small villa scheme has painted the outside of their lot without approval. The result is vastly different from the other lots. As the painting has been completed, what can we do?

I am a lot owner and occupier in a small self-managed Owners Corporation of 4 villas. 3 villas are owner-occupied.

We have 1 rogue owner who does what they want without any discussion. They have recently painted the exterior of their unit without approval. The wall is highly visible from the exterior of the property.

Is this acceptable? Does an exterior wall have to border common property for the lot owner to require approval for repainting? This unit now stands out from the others.

As the painting is now complete, can they be ordered to strip the walls back to the original brickwork?

Answer: Enforcement is the hardest part.

The Owners Corporation Act states that you can not make significant alterations without special resolution, that being said….

The Owners Corporation can issue this owner with a breach notice and then a final notice. This will give them an initial 28 days to comply plus a further 28 days to comply.

If they still do not comply, the Owners Corporation is able to put in an application for VCAT. If they handle this matter themselves, they are looking at around $2,000. If the Owners Corporation decides to use a lawyer, this will most likely cost $5,000 – $7,000. They will most likely be awarded losses by the courts, but there will be a margin on this.

Following this there will be an order. The OC can carry out the works to the property and charge the owner (although getting access onto their property could be an issue), or the lot owner can carry out the order on their own.

Breach of rules for VCAT are at a 12 month wait period at the moment.

As this is not a black and white matter, the OC will need to check the boundary on the plan of subdivision. Change of outward appearance is a subject of matter ie. people have different opinions. Without seeing what the colour difference is, it is also hard to comment.

If the lot in question is on the boundary, the OC will have a better argument at VCAT. if it is within the lot’s boundary, it will most likely be harder to win and much harder to enforce.

Enforcement is the hardest part.

Tristan Veurink
Civium Communities
E: tristan.veurink@civium.com.au

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

Question: My downstairs neighbours have unsightly and offensive objects in their window. Our building is a very nice, refurbished block and their window display is inconsistent with the rest of the units.

I am a lot owner in the process of selling my apartment.

The tenants in the apartment below have unsightly and offensive objects (e.g. Halloween related) in their window. The window is situated directly in front of my car space. The items have been there for several months.

Can I request that the owners corporation ask the tenants to remove these offensive objects? I’m concerned they will put off potential buyers. It is unlikely that these objects will be removed anytime soon.

Our building is a very nice, refurbished block and the way they keep their window is inconsistent with the rest of the units.

Answer: Determine if the owners corporation has special rules that it could compel residents to not install objects in their windows that are visible from street view.

The owners corporation is empowered, through the model rules, to provide reasonable consent to owners/tenants on proposed alterations of their exterior lot. Decorations visible from street view would unfortunately not form part that model rule.

That said, the owners corporation is also empowered to make special rules of not permitting owners to install objects on windows that are visible from street view.

Before you decide to approach the owners corporation to require the tenant to remove the Halloween decorations (as it is well after Halloween), it is prudent that you determine if the owners corporation has special rules that it could compel residents to not install objects from their windows that are visible from street view. Absence of such a special rule, in our view, would unfortunately not permit the owners corporation to compel the tenant to remove the relevant Halloween decorations.

Rochelle Castro
RC & Co Lawyers
E: law@rccolawyers.com
P: 1300 072 626

This post appears in Strata News #550.

Have a question about whether you need Owners Corporation approval for renovations or something to add to the article? Leave a comment below.

This article is for reference purposes only and is not intended to be a comprehensive review of the developments in the law and practice or to cover all aspect of the subject matter. It does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.

Read More:

• VIC: Q&A Damage caused by a water leak from balcony above
• Consumer Affairs VIC: Maintaining and renovating individual lots in an owners corporation
• Considering renovating your apartment? Have you checked you legally own it?

Still after more about Owners Corporation approval when renovating or even more general articles about strata in Victoria? Visit Maintenance and Common Property OR Strata Title Information Victoria.

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