• Responsibility Hinges on Common Property: The Owners Corporation (OC) has a strict legal duty to repair and maintain all common property. For balconies, this almost always includes the structural slab and the waterproof membrane underneath the tiles.
• A Formal Written Notice is Your First Step: If you suspect a leak from common property, you must formally notify the OC and strata manager in writing (email with photos is best). A phone call is not enough. This creates an official record and triggers the OC’s legal duty to investigate.
• Expert Reports are Crucial Evidence: To prove the source of a leak and compel the OC to act, a diagnostic report from a qualified remedial builder or waterproofing consultant is essential. This expert evidence is critical if the dispute escalates to the NSW Civil and Administrative Tribunal (NCAT).
• The OC Cannot Use “No Funds” as an Excuse: The duty to repair common property is absolute. If the capital works fund is insufficient to cover the balcony repair, the OC must raise the necessary funds by striking a special levy.
• You Can Seek Orders from NCAT: If the OC fails in its duty, you can apply to NCAT for legally binding orders. NCAT can compel the OC to carry out the repair and can also order the OC to pay you damages for any foreseeable loss you have suffered due to their delay.

Introduction

Balcony waterproofing failures are among the most common and contentious issues within a NSW strata scheme, often leading to significant water damage and disputes over repair responsibilities. The critical question of who is responsible for a balcony repair hinges on whether the defect is part of the common property, a determination governed by the Strata Schemes Management Act 2015 (NSW).

This guide provides a clear, actionable roadmap for the lot owner and the Owners Corporation (OC), or body corporate, to navigate these complex situations. It clarifies the strict legal duties involved in maintaining common property. It outlines the steps for diagnosing failures, establishing who is responsible for repairing the issue, and ensuring a durable, long-term solution.

Diagnosing Balcony Waterproofing Failures

Common Signs of a Failed Waterproofing Membrane

Identifying the early signs of a waterproofing failure on a balcony is critical to preventing widespread and costly damage. While a leak into the unit below is a clear indicator, many other subtle clues can point to a compromised membrane. Lot owners in a strata scheme should be vigilant for these symptoms, often appearing on or around the balcony common property.

The evidence of a failing system can be grouped into several categories. Surface-level indicators are often the first clues you will notice:

Sign Category	Indicator	Description
Surface-Level	Efflorescence	A white, salty powder on tiles or concrete indicates water seeping through the structure and depositing mineral salts on the surface.
Surface-Level	Cracked or “Drummy” Tiles	Grout is cracking or tiles sound hollow, suggesting moisture underneath has caused the tile adhesive to fail.
Surface-Level	Peeling, Blistering Paint Bubbling,	or peeling paint on the balcony’s underside or adjacent walls, caused by trapped moisture trying to escape.
Moisture-Related	Water Stains and Mould	Dark, damp patches, yellowish-brown stains, or mould growth, often with a musty odour, signalling persistent dampness.
Moisture-Related	Water Pooling or Ponding	Water remaining on the balcony surface for over 48 hours after rain, indicating drainage issues that stress the waterproofing membrane.

Professional Diagnostic Methods & Expert Reports

While a visual inspection can identify the symptoms of a leak, a definitive diagnosis requires professional expertise to pinpoint the exact cause and extent of the failure. Engaging a qualified remedial builder, waterproofing consultant, or structural engineer is essential for any corporate body before a balcony repair. These experts move beyond visual checks to conduct a forensic investigation.

To avoid destructive testing like removing tiles, professionals use a range of advanced diagnostic tools to locate hidden moisture:

Tool / Method	Description
Moisture Meters	Measures the moisture content within materials like concrete and plasterboard to map the extent of water saturation under the surface.
Thermal Imaging Cameras	Uses infrared technology to detect temperature differences, revealing hidden leaks and water paths where trapped moisture is cooler.
Electronic Leak Detection (ELD)	A non-invasive method using a low-voltage current to precisely locate pinholes or breaches in the membrane without flood testing.

The investigation culminates in a comprehensive expert report. This document is the cornerstone of any corporate management action, transforming a complaint into a substantiated, evidence-based claim. A quality report provides:

Report Component	Purpose / Description
Expert Opinion	Provides a professional judgment on the root cause of the waterproofing failure.
Scope of Works	Recommends a detailed plan for the necessary repair and remediation.
Compliance References	Cites non-compliance with the Building Code of Australia (BCA) and relevant Australian Standards (AS).

This documentation is invaluable for any potential NCAT dispute and ensures that remediation efforts address the actual source of the problem rather than just treating symptoms.

Determining Responsibility for Balcony Repairs

The Owners Corporation’s Strict Duty to Repair & Maintain

Under New South Wales law, the responsibility for a balcony repair hinges on whether the defective component is common property. The Strata Schemes Management Act 2015 (NSW) imposes a strict and absolute duty on the OC to maintain and repair all common property. This obligation, outlined in Section 106 of the Act, means the body corporate cannot avoid its responsibility by claiming a lack of funds or blaming original construction defects.

The OC’s duty extends to several key balcony parts, almost always classified as common property. Consult the registered strata plan for your specific scheme to determine the exact boundaries.

Components generally considered the OC’s responsibility to repair include:

Component	Reason for OC Responsibility
The structural concrete slab	As the fundamental structure of the building, the slab is common property.
The original waterproofing membrane	Considered an integral part of the common property slab it protects, making its repair the OC’s duty.
Original tiles and grout	If affixed to the slab when the strata plan was registered, they are also considered common property.
Balustrades and railings	Typically, boundary structures essential for safety and therefore part of the common property.

If the OC breaches its strict duty, it can be held liable for any reasonably foreseeable loss a lot owner suffers. This may include damage to internal carpets, paintwork, or even loss of rent if the property becomes uninhabitable.

When a Lot Owner is Responsible for Balcony Repair

While the OC has a broad responsibility for maintaining common property, certain situations can shift the burden of a balcony repair to the individual lot owner. The OC will likely investigate these exceptions when a defect is reported.

A lot owner may be held responsible for repairs in the following circumstances:

Circumstance	Explanation
Unauthorised Works	A lot owner who performed renovations affecting common property without OC approval is liable for resulting defects.
Owner Renovations Under a By-Law	A common property rights by-law for major renovations often transfers ongoing repair responsibility to the lot owner.
Damage Caused by the Owner	An owner is liable for repair costs if their actions or negligence (e.g., drilling into the slab) caused the damage.
Exclusive Use By-Laws	The specific wording of an exclusive use by-law may make the lot owner responsible for all maintenance and major repairs.
Pre-1974 Strata Plans	For schemes registered before 1 July 1974, the lot owner is often responsible for the waterproofing membrane.

Your Action Plan for Initiating Repairs

Formally Notifying the OC & Strata Management

When you have confirmed that a balcony leak originates from common property, formally notifying the OC is your crucial first step. A casual phone call is insufficient; you must create a formal paper trail to:

• Trigger the statutory obligations of the OC
• Protect your legal rights
• Establish official evidence that the body corporate is aware of the defect

This formal notification involves sending a clear, written repair request to both the strata manager and the secretary of the strata committee. To be effective, your notice should include:

• A clear subject line, such as “Urgent Repair Request: Waterproofing Failure at [Your Unit Number]”
• A specific description of the problem, including the location and the date you first noticed it
• Photographic and video evidence of the damage (water stains, cracked tiles, mould growth)
• A reference to the OC’s strict duty to repair and maintain the common property under Section 106 of the Strata Schemes Management Act 2015 (NSW)
• Copies of any expert reports obtained from waterproofing consultants or remedial builders

This structured approach ensures a clear record of your communication and gives the body corporate management all the necessary information to investigate the balcony repair.

How to Lodge a Motion for Balcony Repair & Maintenance

If the OC or strata committee is unresponsive or unreasonably delays action after you’ve received your formal notice, your next strategic step is to lodge a motion. This approach forces the issue onto the agenda of a general meeting, compelling all lot owners to formally consider the repair. It also creates a minuted record of the decision, which is critical if you need to escalate the matter.

Any lot owner entitled to vote can submit a motion for consideration at the next general meeting. The process involves several distinct steps:

1. Draft the Motion: The motion must be written as a formal resolution. For a balcony repair, it could state, “That the owners corporation resolve to comply with its duty under Section 106 of the Strata Schemes Management Act 2015 (NSW) by engaging a qualified remedial consultant to prepare a scope of works to rectify the failed waterproofing on the balcony of Lot [Your Lot Number].”
2. Write an Explanatory Note: You must include an explanatory note of no more than 300 words. This is your opportunity to briefly explain the history of the defect, the evidence of the failure, and why the motion is necessary to persuade other owners.
3. Submit the Motion: The motion and explanatory note must be submitted in writing to the secretary of the OC or the strata manager well before the notice of the next meeting is sent out.
4. Requisition a Meeting: If the repair is time-sensitive and the next Annual General Meeting (AGM) is too far away, owners holding at least 25% of the unit entitlements can formally request an Extraordinary General Meeting (EGM) be held.

Implementing Interim & Long-Term Repair Solutions

Urgent Interim Fixes to Mitigate Damage

When a balcony leak is detected, immediate action is essential to prevent further damage to both common property and individual lots. Interim fixes serve as temporary measures while permanent repairs are arranged.

Key urgent steps include:

Action	Description / Purpose
Water containment	Placing buckets to catch drips helps minimise damage to floors, carpets, and furnishings below.
Temporary sealing	Applying waterproof sealants or tapes to visible cracks and joints temporarily reduces water ingress.
Covering the balcony	Using tarpaulins to shield the surface from rain, diverting water away from damaged areas.
Clearing drainage systems	Ensuring drains and gutters are debris-free to prevent water pooling, which stresses the membrane.
Professional assessment	Engaging licensed contractors to inspect and recommend suitable containment measures promptly.

These interim actions do not resolve the underlying waterproofing failure, but are critical to limiting ongoing water ingress and structural damage. Acting swiftly can reduce repair costs and health risks associated with mould growth.

The Process for Compliant Long-Term Remediation

Permanent balcony repairs require a comprehensive and methodical approach to restore waterproofing integrity and prevent recurrence. The process typically involves several important stages.

First, preparation of the balcony surface is essential:

1. Complete removal of existing finishes: All tiles, grout, screed, and the failed waterproofing membrane must be stripped down to the bare structural substrate, usually concrete or timber. This ensures that no compromised materials remain to undermine the new system.
2. Substrate inspection and repair: The exposed substrate is thoroughly examined for damage such as concrete spalling (“concrete cancer”), cracks, or timber rot. Any defects must be professionally repaired or replaced to provide a sound base for waterproofing.
3. Correcting balcony slope: A new screed is applied if necessary to create a positive fall (minimum 1:100 slope) directing water towards drainage outlets. Proper drainage is essential to prevent ponding and membrane stress.

Next, the waterproofing system is installed:

1. Application of a new waterproofing membrane: Licensed waterproofing specialists install a compliant membrane system in accordance with AS 4654.2. Options include:
   • Liquid-applied membranes (e.g., polyurethane)
   • Sheet membranes
   • Peel-and-stick systems
   The appropriate system is selected based on balcony design and substrate.
2. Detailing and sealing: Critical junctions such as wall-floor interfaces, door sills, penetrations, and corners are carefully detailed with bond breakers, flashings, and high-quality sealants to prevent water ingress.

Finally, quality assurance and finishing steps are completed:

1. Flood testing: Before re-tiling, the new membrane undergoes a 24-hour flood test to verify watertightness. This quality assurance step is vital to ensure no leaks remain.
2. Re-tiling and installation of movement joints: Tiles are installed with appropriate adhesives, and flexible expansion joints are placed around the perimeter and at regular intervals (approximately every 3 metres). These joints accommodate thermal movement, preventing tile cracking and membrane damage.
3. Certification and warranties: The completed works should be certified by qualified inspectors, and warranties (often 10 years) obtained from contractors to guarantee durability.

Compliance with the BCA and relevant AS is mandatory throughout the remediation process. Engaging licensed professionals with proven expertise in strata waterproofing is crucial to avoid repeat failures.

Additionally, OCs should incorporate these repairs into their capital works plans and budget accordingly. Special levies may be required to finance the project if funds are insufficient.

Regular maintenance following remediation—including cleaning drains, inspecting sealants, and repairing grout—helps prolong the lifespan of the waterproofing system and protects the investment.

Combining urgent interim containment with a carefully planned, compliant long-term remediation strategy, strata schemes can effectively manage balcony waterproofing failures and safeguard common property and lot owners’ interests.

Escalating Disputes to NCAT

Seeking Urgent Interim Orders from NCAT

In situations where a balcony leak is causing severe and ongoing damage, waiting for a full hearing is often not feasible. A lot owner can apply to the NSW Civil and Administrative Tribunal (NCAT) for urgent interim orders to compel the body corporate to take immediate action to prevent further harm. The primary basis for seeking such an order is urgency, which must be demonstrated.

An application for an interim order is appropriate when there is an immediate risk of serious harm to people or property. For a balcony repair, this could include situations where:

• Water ingress is significant with every rainfall
• The leak is creating a serious mould or health hazard
• There is a risk of electrical faults or structural damage

The application for interim orders is lodged with a substantive application for final orders. NCAT prioritises these requests and may decide within 24 to 48 hours. While the Tribunal might not order a full, complex repair at this stage, it can issue temporary orders for the body corporate management to install weather protection or take other containment measures while a permanent solution is organised.

Applying for Final Work Orders & Damages

If the OC continues to neglect its duty after formal requests and mediation has failed, a lot owner can apply to NCAT for final orders under Section 232 of the Strata Schemes Management Act 2015 (NSW). The success of an application depends heavily on the quality of evidence provided, making expert reports a critical component of your case.

NCAT has broad powers to resolve the dispute and can issue legally binding orders, including:

Type of Order	Description
Work Orders	Compels the Owners Corporation to carry out specific common property repairs within a set timeframe, often based on an expert’s scope of works.
Damages Orders	Orders the OC to compensate a lot owner for any reasonably foreseeable loss (e.g., internal damage, loss of rent) due to the breach of duty.
Cost Recovery	May permit a lot owner to arrange the repair themselves and recover the costs from the Owners Corporation.

It is important to note that any legal action for damages must be started within two years from the date the lot owner first becomes aware of the loss. Failing to act within this period may result in the claim being permanently barred.

Conclusion

Navigating a balcony repair in a NSW strata scheme requires a clear understanding of how to diagnose the failure, determine responsibility under the Strata Schemes Management Act 2015 (NSW), and follow a structured process from formal notification to lodging a motion. Should disputes escalate, applying to the NCAT for work orders and damages provides a definitive path to resolution for the lot owner or the body corporate.

If you are facing a strata dispute over a common property balcony repair and require assistance, contact the experts at PBL Law Group for trusted legal guidance. Our team specialises in strata law and can help protect your rights and navigate the complexities of body corporate management to achieve a durable solution.

Frequently Asked Questions (FAQ)