Is the balcony, removal and replacement of the tiles, membranes, plus balustrades and the old stubs the responsibility of the owners corporation or is the lot owner solely liable? – Summer, NSW
Q: Hi team, my question bit of a long winded one so apologies in advance…
Background information: We are in a building of 9 units, with our unit in the middle of the second storey. The top level is a penthouse that stretches the length of our building. For 8 years we have been complaining of issues and damages to our unit as a result of water penetration coming from the penthouse above due to cracked tiles and dodgy waterproofing on the wrap around balcony attached to the penthouse. Damage has been so extensive that we have been without power to 80% of our unit for months at a time, our bathroom and children’s bedroom has its roof and walls crumbling with growing mould, and the list goes on.
Recently, the Strata manager has finally acted upon our complaints and has had an engineer inspection the balcony, who has recommended remedial works to be conducted immediately on the penthouse balcony as they uncovered x2 layers of unsatisfactory tiling and membrane, non compliant balustrades, and illegal pipes.
The Strata Plan was registered in 1996, and clearly states the balcony is not common property but is labelled as a verandah on the penthouse’s lot. There have been no updates registered and the penthouse Lot does not have by-laws specifically stating they have exclusive use of their balcony in the event it is in fact common property.
My question: is the balcony, removal and replacement of the tiles, membranes, plus balustrades and the old stubs the responsibility of the Owners Corporation or is the Lot owner solely liable?
Our strata manager has maintained that the penthouse balcony is common property despite the strata plan, and has bullied us into paying the initial special levy for works, based on figures produced by her builder with no quotes or invoices, and now they are asking us to pay an additional special levy due to unforeseen works that need to be further completed to this penthouse Lot. The Strata manager has said that we all have to pay the builder because it is unfair if he doesn’t get the money for the job.
Any information or advice regarding this would be greatly appreciated. I can supply a copy of our strata plan for reference if required.
Thank you so much
A: It may be best to first establish whether the balcony is common property or lot owner property. This will be the defining factor in terms of who is responsible for the payment of repairs and maintenance of the balcony.
According to Fair Trading NSW: “most balcony doors are usually common property if the strata plan was registered after 1974” and “is usually common property if the strata plan was registered after 1 July 1974, unless the registered strata plan says it is not.”
As a last resort, if you cannot come to an agreement or compromise and feel that the payment responsibilities are unfair, you may wish to take the case to the NSW Civil and Administrative Tribunal (NCAT).