As most strata owners and occupiers in NSW would know legislative changes require certain windows to be fitted with window safety devices by 13 March 2018. The purpose of the legislative changes was to try to prevent children falling out of windows.

Almost nine months on from the changes and there are still questions about what exactly is required and the responsibilities of the owners corporation as opposed to owners and occupiers.

When are window safety devices required?

A window safety device is required where a lot is used for a residential purposed and a common property window is able to be opened and it is 2 metres above the ground level and the lowest part of the window is less than 1.7 metres above the level of the lot’s floor.

Potential alternatives to a window safety device would be a grill or safety bars provided they allow no more than 12.5cm gaps. Fly screens by themselves are unlikely to meet the pressure criteria required under regulation 30 of the Strata Schemes Management Regulations 2016 (essentially a screen must be capable of resisting an outward horizontal action of 250 newtons).

Can I open my window? If so, how far are windows permitted to open when the safety device/lock is engaged?

The requirement to have a window safety device does not mean that it must always be engaged however if it is not engaged, or worse if it is disabled by the occupier, and a person falls out a window and is injured the injured person (or their parent) would have a potential caused of action in negligence against the occupier of the lot and potentially the owner of the lot and the owners corporation. If there is a requirement to have the device it is there for a safety reason and we strongly recommend it should be used.

When the safety device or lock is engaged the window should only be able to be opened to a maximum of 12.5cm.

Can a lot owner install a window safety device?

Yes, they can however it must be installed in a proper and workmanlike manner and any damage to the common property caused during the installation must be repaired by the lot owner. Further, the owners corporation may ask for evidence that it complies with the Regulations. A link to regulation 30 is here: http://www.austlii.edu.au/cgi-bin/viewdoc/au/legis/nsw/consol_reg/ssmr2016333/s30.html

Can the owners corporation absolve itself of responsibility for the window safety devices by passing a common property rights by-law?

Yes, on certain conditions. Why? An owners corporation can pass a common property rights by-law providing the lot owners with the exclusive use of the window safety devices and the responsibility for its maintenance and repair however there are two potential issues with this which are:

1. A lot owner must consent to the by-law as obligations are being imposed on them.

Section 141 of the Act requires the lot owner to provide their written consent to the by-law. However, after two years from the making of the by-law section 141(3) means that all conditions or preliminary steps in making the by-law are deemed to be complied with this would arguably include the written consent of the lot owner. This means if a by-law was passed obligating lot owners to maintain and repair the common property window safety devices servicing their lot and that lot owner did not provide their written consent to the by-law the owners corporation may have difficulty in enforcing the by-law against that lot owner until two years after it had been passed.

2. The owners corporation has a strict responsibility to maintain and repair the common property under section 106 of the Strata Schemes Management Act 2016.

The owners corporation can pass a special resolution to the effect that section 106 (1) and (2) which impose the repair and maintenance obligations do not apply to a particular item of common property if:

(a) it is inappropriate to maintain, renew, replace or repair the property, and

(b) its decision 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.

There is an argument that not maintaining a window safety device would affect the safety of the building and, depending on the device used, may detract from the appearance of the scheme if is visible.

However, section 144 of the Strata Schemes Management Act 2016 requires a common property rights by-law to state whether the owners corporation or a lot owner is responsible for the repair and maintenance of the common property the subject of the by-law. The counter argument therefore is that by passing a common property rights by-law requiring a lot owner to maintain and repair the window safety device the owners corporation has under section 144(3) of the Act passed its absolved itself of its responsibility to maintain and repair the common property and it is this argument that I believe would be accepted in case of a dispute where a common property rights by-law obligating a lot owner has been passed.

This is general advice and is not meant to be relied upon. Please seek legal advice specific to your station.