NSW: Q&A What if My Lot Causes a Leak

This Q&A is about being blamed for a leaking roof after installing a skylight or carrying out renovations in a NSW strata apartment.

Table of Contents:

• QUESTION: The ceiling of our unit has been damaged by an upstairs unit. The upstairs owner will not allow access to the lot and insists the issue is the responsibility of the owners corporation. We are unable to live in the unit. Where do we stand?
• QUESTION: A leak in our ceiling was found to be due to our recent renovations. I’ve been charged $2000 for the repair work. Is strata able to authorise work to a lot before consulting the owner and then charge the owner for the work?
• QUESTION: If I install a skylight in my apartment ceiling, how can I be sure strata won’t automatically be blamed for any future roof leaks?

Question: The ceiling of our unit has been damaged by an upstairs unit. The upstairs owner will not allow access to the lot and insists the issue is the responsibility of the owners corporation. We are unable to live in the unit. Where do we stand?

We have recently purchased a ground floor unit. There is damage to the ceiling in one bedroom. The damage originated in a unit on the top floor. Damage extends to a first floor unit and my unit. The owner of the top floor unit will not make the unit available for inspection to assess. They are adamant strata should pay, while strata say it’s the unit owner’s responsibility. Meanwhile, we have an unliveable unit and no time frame for assessment, let alone repair. Where do we stand?

Answer: The strata manager does have an avenue of recourse through the Tribunal if the lot owner denies further requests for access.

The strata manager does have an avenue of recourse through the Tribunal if further requests for access are denied by the lot owner.

Relevantly, section 122 of the Strata Schemes Management Act 2015 (“the Act”) provides in subsection (2) that an owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel to determine whether any work is required to be carried out by the owners corporation in accordance with this Act.

It appears that the owners corporation is seeking to make a determination if it is required to comply with section 106 of the Act regarding the duty to maintain and repair common property.

That section also allows the owners corporation to obtain an order for access from the NSW Civil and Administrative Tribunal.

Section 122 relevantly provides:

122 Power of owners corporation to enter property in order to carry out work

1. An owners corporation for a strata scheme may, by its agents, employees or contractors, enter on any part of the parcel of the scheme for the purpose of carrying out the following work–
   
   1. work required or authorised to be carried out by the owners corporation in accordance with this Act (including work relating to window safety devices and rectification work carried out under Part 11),
   2. work required to be carried out by the owners corporation by a notice given to it by a public authority,
   3. work required or authorised to be carried out by the owners corporation by an order under this Act.
2. An owners corporation for a strata scheme 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 the Tribunal under this Division.
5. A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section : Maximum penalty–5 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.

Once access is provided, the owners corporation could consider engaging a consultant to determine the source and liability issues.

Liability limited by a scheme approved under professional standards legislation.

Pierrette Khoury
Khoury Lawyers
E: [email protected]
P: 0415 459 486

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

Question: A leak in our ceiling was found to be due to our recent renovations. I’ve been charged $2000 for the repair work. Is strata able to authorise work to a lot before consulting the owner and then charge the owner for the work?

Strata arranged a plumber on two occasions to investigate and repair a plumbing leak in the bathroom ceiling of my apartment.

The plumber concluded, as the leak was caused by our recently completed renovation, I am responsible for the charges I have been billed around $2000 for this work.

While I have no concerns the repairs are my responsibility, I’m concerned about the amount charged. The plumber attended after hours for a non urgent repair. Is strata able to authorise work to a lot before consulting the owner and then charge the owner for the work?

Answer: There is a section in the Act that allows an owners corporation to do this.

There is a section in the NSW Strata Schemes Management Act 2015 (“the Act”) that allows an owners corporation to do this.

There are certain actions the owners corporation may take. One of those actions relates to work to rectify certain defects. Relevantly, section 119 of the Act provides:

Work to rectify certain defects

1. An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects–
   
   1. any structural defect in any part of a building comprised in a lot in the scheme 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,
   2. 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, internet, radio or television services) within a lot.
2. An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.

There is a further power in accordance with section 122. That section relevantly provides power of owners corporation to enter property in order to carry out work.

Having not seen the by-laws, there is also the possibility there is a by-law in place that authorises the owners corporation to do this. I suggest this also be reviewed. At times a by-law can include a power of an owners corporation to charge an owner where access was not provided or refused for the purpose of an inspection or work being carried out.

Pierrette Khoury
Khoury Lawyers
E: [email protected]
P: 0415 459 486

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

Question: If I install a skylight in my apartment ceiling, how can I be sure strata won’t automatically be blamed for any future roof leaks?

I am considering installing a skylight in my apartment ceiling. My unit is on the top floor. I am aware I am required to follow the correct procedures for installing the skylight. I’m also concerned about future concerns.

I believe a bylaw may have to be created for future repairs if there is a roof leak in units directly resulting from my skylight.

If, at some point in the future, there is a leak identified in the ceiling say some distance from the installation, will I be responsible for the repair? How can I ensure any investigation into the cause of a leak is carried out objectively?

Answer: Always have a licensed plumber determine the cause of any leak.

If a roof leak occurs, the best way to get around this is to have a licensed roof plumber determine the cause.

Most plumbers/trades will write a report which identifies the issue and what has caused the problem, along with the required repairs. If the cause of the roof leak isn’t identified as the skylight then it would fall under the owners corporation’s responsibility. However, if the leak is determined to be a result of the install of the skylight then it would be the lot owners responsibility.

Jamie Welbourne
SMS Strata Management
E: [email protected]
P: 1800 351 078

This post appears in Strata News #283.

Have a question about skylights and roof leaks in NSW strata or something to add to the article? Leave a comment below.

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Read next:

• NSW: Minor Renovations (eg Air Conditioner Installation) & Unreasonable Refusal

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