One of the most common questions that I receive from lot owners is along the lines of “why is the owners corporation picking on me, I just did a small bit of work”.
In my video (if you still call them that) post which is here: https://allisonbensonau.com/2022/04/08/works-by-laws-when-and-why-discussed/ I talk about works by-laws and when they are needed. The very quick answer is that you, as a lot owner, need to be conscious that the common property is not your property and that any work you do may need the approval of your owners corporation. There is a three tiered system of works and approvals required within strata schemes which I written about here: https://allisonbensonau.com/2018/04/06/i-want-to-do-work-to-my-lot-do-i-need-a-by-law/
To save yourself a lot of time, worry and money I strongly recommend that you obtain the required approval before you (or your contractors) start work. If you do not then your owners corporation may:
- serve a notice to comply for breach of your schemes by-laws and require you to reinstate the common property to the way it was prior to the works;
- apply for an interim NCAT order requiring you to stop all works and for substantive orders that you reinstate the common property to the way to was prior to the works; or
- require you to enter into a by-law to retrospectively authorise your works upon threat of NCAT proceedings being commenced.
The third option is perhaps the most benign however the owners corporation will likely require you to pay for the cost of their experts to review the works, the cost of lawyers to prepare the by-law and the costs of the owners corporation considering the proposed by-law, registering it and enforcing its terms. These costs can blow up especially if structural work is being conducted and the owners corporation’s expert is not satisfied with the structural integrity of the work that is being proposed or has already been conducted.
The first option is may seem relatively benign however if you do not comply with a notice to comply, the owners corporation can make an application to NCAT for a penalty order & costs. If not complied with further applications for penalty orders & costs can be made by the owners corporation and, quite frankly, start to get very expensive.
In my view, the harshest option is option two. Why? If you have had to relocate for the works to be conducted and interim stop works orders are made you could find yourself having to pay for alternative accommodation for much longer than expected. Even if you can stay in your lot with incomplete works there is the inconvenience factor to consider. You may also find yourself liable to pay your contractors delay damages under their contract which quickly add up. These are all obvious costs, the loss of goodwill of other lot owners, the time cost of defending proceedings and legal fees are also costs to be considered noting that as in all litigation there is no certainty of outcome.
For the ten to twenty minutes it takes to call your strata manager and describe your works and to look at your scheme’s by-laws and consider any restrictions is time well spent. After doing this, if you choose to go ahead with works that are not approved, you have made an informed decision to do so and are aware of the risks involved.
Please stop and consider what, if any, approvals you need before conducting works. A works by-law may be considered expensive (you can generally have a by-law prepared and registered fro around $1,000) but it is must less costly than delayed works or defending NCAT proceedings.
Please note that I have not touched upon whether work requires planning approval but this too must be considered.
This is general information and should not be considered to be legal advice. If you are affected you should obtain legal advice specific to your individual situation.