An owners corporations duty to maintain and repair defective common property in NSW is likely to undergo a major change if the proposed Building Compliance and Enforcement Bill 2022,NSW is passed by the NSW Parliament and becomes law.

The major changes are designed to give the NSW Building Commissioner Mr David Chandler draconian powers to force owners corporations to fix common property defects.

What are the New Powers Under the Bill?

The new powers under the Bill includes:

• A right to enter a strata scheme to inspect and investigate defects
• Organise and undertake destructive testing
• Forcing people associated with strata schemes to answer questions in writing
• Issue compliance notices
• Accept compliance undertakings
• Issue search warrants
• Applying to the Land and Environment court for restraining or remedial orders

The proposed changes will allow fines to be issued to owners corporations who are in breach of the Commissioner’s orders to a maximum of $22,000 and $2,000 per day for any continuing breach.

Consultation on the proposed bill ends on 25 November 2022 and if the bill is passed it will give the Building Commissioner more muscle against those owners corporations who fail to recognise that the duty to maintain and repair defective common property is an immediate duty that cannot be delayed or suspended.

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For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Existing Claims: Statutory Warranties and Defects

On 24 August 2022, in a recent case, the New South Wales Supreme Court confirmed that an owners corporation can add to an existing claim for a breach of statutory warranties new defects that may manifest after the owners corporation has commenced its legal action.

Did You Know?

This applies, even if the warranty period for those defects has expired at the time they are added to the claim.

Here we share the recent case: A Great Win for Owners Corporations in NSW

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Tenants, Building Defects, NCAT and Rent Relief

In a recent case, a property manager failed to inform a landlord of defects in the common property of a strata building and take any steps to investigate issues that a tenant had complained about.

The tenant applied to NCAT for a rent reduction as the landlord had breached their obligation to keep the rented premises in a reasonable state of repair as water leaked into the premises. The tenant was successful.

Who Could be Liable?

If a tenant claims rent relief from NCAT due to defects in a strata building, it’s important to note that NCAT could deem that it is the responsibility of the:

• Landlord who could lose rent (or worse) if they do nothing;
• Property manager if they fail to fix defects in the premises that they are authorised to repair following a tenant’s complaint in a timely manner;
• Property manager if they have not advised the landlord of defects (where they are not authorised organise repairs) following a tenant’s complaint;
• Owners corporation who could also be held liable for a landlord’s loss of rent.

A Timely Reminder for Managing Agents!

Ensure your professional indemnity insurance is current;

• Ensure your professional indemnity insurance is current
• Obtain landlord consent on a minimum amount for repair works which can be dealt with without the landlord’s approval;
• Allocate sufficient resources to attend to repair requests in a timely manner to avoid issues which could lead to court proceedings;
• Request that any common property defects are promptly repaired by the owners corporation;
• Ensure that the relevant strata by-laws for the apartment block are up to date to minimise your risk

Here we share some cases…

• https://www.caselaw.nsw.gov.au/decision/18261da0208ae3ceaf03173b
• http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWDC/2019/9.html

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

The perennial problem of owners who carry out unauthorised renovations works to common property continues to rear its head.

Here we look at the different strategies for dealing with unauthorised renovations works and explore the problems that arise when an owners corporation ignores the problem for too long.

What are the Different Ways to Deal with Unauthorised Renovations?

• The Aggressive Approach
• A Stern Approach
• Someone Else’s Problem Approach
• A Collaborative Approach
• The Ostrich Approach

In this article we look at the different approaches and lessons learned Unauthorised Renovations and how to deal with them!

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

What do you need to consider in your EV Strata By-law?

EV by-law’s prepared by our team permits all owners to install electric vehicle chargers in their car spaces or garages and connect those chargers by cabling leading to the switchboard.

However, there are a number of matters an owners corporation needs to consider when adopting the by-law and permitting owners to install electric vehicle chargers.

Seven EV By-law Considerations

1. Is there sufficient room on the switchboard for additional circuit breakers to be installed for each electric vehicle charger installed by an owner?
2. Is the existing electrical infrastructure on common property sufficient to handle the additional loads generated by electrical vehicle chargers when they charge EVs? If not, who will be liable to pay for the upgrade of that infrastructure?
3. Is it possible for electric vehicle chargers to be separately metered and charged to the owner’s account instead of the owners corporation paying for the electricity that is used by the EV chargers?
4. Do the EV chargers and their use create any risks to the health and safety of other residents?
5. Are there sufficient cable trays in place in the garage or other areas to accommodate the cabling that will need to be run between electric vehicle chargers in lot owners’ garages and the switchboard.
6. Will the electric vehicle chargers be compatible with any load management system in place and the electrical infrastructure that exists in the building?
7. Is it possible for limitations to be placed on the loads drawn by electric vehicle chargers, for example, to limit electric vehicle chargers to single phase chargers drawing no more than 10amps power?

JS Mueller & Co Lawyers EV by-laws deal with some of these considerations and often is tailored to deal with most of them.

CLICK HERE FOR ELECTRIC VEHICLE (EV) BY-LAWS

For the first time, all strata schemes across NSW are now required to report key information each year using the new Strata Hub portal.

To help strata schemes navigate this change, the NSW Department of Customer Service is hosting a special strata sector event.

Strata Scheme Reporting Lunchtime Online Q&A Event

The lunch hour event features a Q&A panel discussion on what the new reporting requirements will mean for NSW strata communities. Expert panellists will answer your questions and share insights about the new strata scheme reporting.

When: Wednesday 20 July 2022 from 12 noon – 1pm.

The panel includes:

• John Minns – NSW Property Services Commissioner
• David Chandler OAM – NSW Building Commissioner
• Kerrie Burgess – Director, Digital & Program Delivery, Department of Customer Service
• Karen Stiles – Executive Officer, the Owners Corporation Network
• Stephen Brell – President, the Strata Community Association (NSW)

If you’d like to submit any questions to the panel in advance, please email: stratasystem@customerservice.nsw.gov.au

TO ATTEND REGISTER ONLINE BY 15 JULY 2022

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

As you’re aware, recent changes to strata laws mean that all NSW strata schemes must, for the first time, complete online reporting.

The new strata portal will go live 1 July 2022 allowing strata committee members and strata managers responsible for reporting to register on the portal.

Communication Toolkit

This means that your networks will need to be advised of the reporting requirements. To assist with these communications NSW Fair Trading has developed a ‘Communication Toolkit’.

This ‘Communication Toolkit’ includes suggested wording for:

• Newsletters
• Websites
• Emails
• Social Media
• FAQs

To access the ‘Communication Toolkit’ please click here.

CLICK HERE FOR THE ‘COMMUNICATION TOOLKIT’

Further Information

• Visit: NSW Fair Trading Website
• Email: NSW Fair Trading
• Read Article: JS Mueller & Co Lawyers
• View: Strata Schemes Management Act 2015

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Strata NSW Covid-19 Laws Extended

To help strata and community associations to continue to manage their responsibilities of COVID-19 the NSW Government has extended the timeline for these laws to remain in place.

Laws were previously added to the Strata Schemes Management Regulation 2016 and the Community Land Management Regulation 2021 in response to the NSW COVID-19 outbreak.

These laws included allowing voting at remote meetings to be held electronically by tele or video conferencing, email or other electronic means. It is important to note that these laws will still apply even if a motion has not been passed.

New COVID-19 Strata Law Deadlines

Initially these temporary laws were to end on 31 May 2022 however they will now remain in place until 30 September 2022.

For further information visit: Strata Schemes Management Amendment (COVID-19) Regulation 2022 and the Community Land Management Amendment (COVID-19) Regulation 2022.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

Building Defects – Who is Liable?

Can the director of a building company that is responsible for the construction of a new strata building be held personally liable for defects in the building?

The Design and Building Practitioners Act 2020 (Act) was introduced in 2020 and provides that a duty of care is owed by “a person who carries out construction work” to an owners corporation to avoid defects in the construction of the building. But who exactly is classified as “a person who carries out construction work”?

Is “a person who carries out construction work” limited to the entity that was contracted to do the work such as the builder or does it also include all persons involved in completing the project such as a supervisor, project manager and even the director of the builder’s company or the developer?

Personal Liability of Project Manager

A recent decision by the Supreme Court of NSW has found that the husband of a director of a building company was personally liable for defective building works done by the builder under the Act because he acted as the project manager and supervisor of the builder: see Goodwin Street Developments Pty Ltd atf Jesmond Unit Trust v DSD Builders Pty Ltd (in liq) [2022] NSWSC 624.

In this case, the builder was placed into liquidation and the developer brought proceedings against Mr Roberts the husband of a director of the builder.  According to the Court, Mr Roberts was a project manager of the builder, supervising construction works for the project. Therefore, Mr Roberts was found to be “a person who carried out construction work” under the Act and was found liable for the defects.

Liability of Developer

In another recent Supreme Court case, an owners corporation sued the builder and developer for damages arising from defects.

The Court found, among other things, that a developer could be held liable for defects under the Act as a person who carried out construction work.

The Court also said that under the Act, a person could be liable for defects if they could (but did not necessarily) have control of the building works: see The Owners – Strata Plan No 84674 v Pafburn Pty Ltd [2022] NSWSC 659.

Conclusion

These cases have far reaching consequences for directors, supervisors, project managers, developers and sub-contractors involved in construction work who all could be liable to owners corporations for defects under the Act, even for work done up to 10 years ago (as the Act is retrospective). However, for those persons to be liable, it must be proven that they have had or could have had some control over the building works.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.

NSW has experienced unprecedented wet weather this year which has made it difficult to find contractors who are able to repair common property defects in strata blocks.

However, the duty to repair common property is a strict one and there are limited exceptions to that rule. So does the recent inclement weather provide an owners corporation with a lawful excuse for delaying essential repairs and maintenance?

In this article we take a closer look at the responsibility of an owners corporation to repair common property… Rain, Water Leaks, Delays, Tenants and Common Property Fixes.

Contact Us

For all strata law advice including by-laws, building defects and levy collections contact our specialist NSW and Sydney strata lawyers here or call 02 9562 1266, we’re happy to assist.