Introduction

PBL Law Group, the leading law firm specialising in strata law and disputes in Sydney, recently advised an Owners Corporation in a case before the New South Wales Civil and Administrative Tribunal (NCAT). This case sheds light on vital considerations of consent and liability in strata property disputes where Owners Corporations have caused damage to private property. In this article, we will delve into the key lessons from this case to help lot owners and Owners Corporations effectively navigate damage to private property caused by Owners Corporations.

Background to the case

Our client had previously been requested by an apartment owner to inspect and replace a balustrade in the courtyard of their property, as part of the Owners Corporation’s obligation to maintain and repair the common property. The purpose of this request was to ensure compliance with the latest provisions of the Building Code of Australia pertaining to balustrades. The Owners Corporation has an obligation to repair and maintain common property, and although the balustrade was initially constructed to meet the relevant standards at the time of construction, it is considered unsafe according to current standards.

However, during the inspection process, the Owners Corporation’s subcontractors removed nearby fencing and plantation that were on the lot property without the consent or instruction of the apartment owners. Further, the Owners Corporations did not proceed to replace or ‘repair’ the balustrade despite the damage to lot property during the inspection. After being pursued numerous time to compensate for the damage and balustrade replacement, the Owners Corporation sought legal advice from PBL Law Group.

Lesson 1 – Strata must obtain consent before commencing works

This case underscores the importance of obtaining explicit consent or instructions from apartment owners before conducting any work on their strata property. The Owners Corporation proceeded with the removal of the fence and plantation during the inspection without obtaining proper consent from the apartment owners. In absence of the Owners Corporation’s failure to obtain express consent or instruction from the apartment owners, they sought to rely on two arguments to indicate that consent had nevertheless been given. The first argument was an instance where the apartment owners once referred to the fence as “junk” that needed to be removed for the balustrade. The second argument was the fact that the apartment owners had not objected to the removal which amounted to her giving consent. Both arguments were flatly rejected by the tribunal as not amounting to express consent or instruction to remove the fence and plantation.

This makes clear to Owners Corporations in NSW that anything less than express consent or instruction from a lot owner does not and will not amount to consent for works that cause damage to private property. If Owners Corporations seek to commence works that can affect or damage private property, it is always prudent to obtain clear and express consent from lot owners to carry out the work.

Lesson 2 – Strata will be held responsible for damage caused

This case also highlights to Owners Corporations the real likelihood of being held liability for damage to private property caused during works without the express authorisation or consent of the affected lot owner. The removal of the fence and plantation resulted in compensable damage to our client’s property, for which NCAT held the Owners Corporation liable to rectify. Ultimately, NCAT ordered the Strata Committee to begin the rectification within 70 days of giving the order and that the rectification must be completed within 3 months of its commencement.

This emphasises the need for Owners Corporations to obtain express authorisation or consent for any work that may impact an apartment owner’s property. If an Owners Corporation fails to receive express consent or authorisation, they may not rely on inferred consent or instruction to protect them from being held liable for any loss or damage arising from their works. Meanwhile, a lot owner may be assured that there isa strong case for compensation for  damage or loss caused to their property by Owners Corporations.

Lesson 3 – Understand the powers of NCAT

Understanding the powers and limitations of NCAT, the designated tribunal for strata disputes, is essential for parties considering or currently involved in a claim in NCAT. This case highlighted the specific sections of the Strata Schemes Management Act 2015 that determine NCAT’s power to award damages. While the apartment owners sought monetary compensation, NCAT primarily focused on reinstating the damaged fence and plantation, where restitution is a more appropriate remedy than monetary compensation. More specifically, NCAT ordered:

1. our clients to seek two quotes from contractors to rectify the fence and plantation and provide them to the strata committee;
2. the strata committee to consider and choose which quotation they will accept for the rectification works;
3. the strata committee to commence the rectification works within 70 days after the orders and to complete the rectification within 3 months thereafter.

Both apartment owners and Owners Corporations need to be aware of the tribunal’s jurisdiction and the available remedies to make informed decisions regarding legal recourse, particularly in disputes where restitution is an appropriate and viable remedy.

What should I do if my private property was damaged by strata?

If you find yourself in a situation where your private property has been damaged by the strata (or its contractors), it’s crucial to take immediate action to protect your rights and pursue appropriate solutions. Here’s a step-by-step guide to help you navigate this challenging situation:

1. Document the damages: Start by thoroughly documenting the extent of the damages to your private property. Take photographs and videos, noting any defects or issues caused by the strata. This evidence will be vital in supporting your claim for repairs or compensation.
2. Notify the Owners Corporation: Contact the Owners Corporation in writing, informing them about the damages and requesting immediate action to rectify the situation. According to property law, the Owners Corporation has an obligation to maintain and repair common property, including damages caused by their actions or negligence. Keep copies of all communication for future reference.
3. Seek expert legal assistance: Dealing with strata matters and navigating the complexities of strata law can be challenging. To ensure you have the best chance of a successful resolution, it’s advisable to seek professional legal assistance from a reputable strata law firm. Experienced strata lawyers can provide personalized guidance, helping you understand your rights and obligations as an owner in a strata scheme.
4. Collaborate with your legal team: Work closely with your strata lawyer to evaluate the damages, determine the responsibilities of the Owners Corporation, and develop a strong strategy. Your legal team will guide you through the negotiation process, representing your interests and advocating for the necessary repairs or compensation.
5. Pursue rightful compensation: With the support of your legal team, pursue rightful compensation for the damages inflicted on your private property. This may include restitution of damages or, in some cases, reimbursement for repair costs, loss of rental income, or other financial losses caused by the strata’s actions. Your lawyer will help build a robust case, ensuring your claim is well-documented and compelling.

Remember, time is of the essence when dealing with damage to common property. Act promptly, seek professional assistance, and assert your rights as a lot owner. By taking the necessary steps and working with experienced strata lawyers like Alex Ilkin of PBL Law Group, you can effectively navigate the complexities of strata disputes and seek the remedies you deserve. Safeguard your interests and effectively navigate strata disputes with our specialized expertise.