Question:
The owner’s corp chairman has contacted us stating he is ‘conducting inspections’ of lot owner’s balconies to see if any maintenance is required. If balconies are our responsibility cost-wise and we have no suggestion of any damage or cause for concern, does the committee have the right to come into our property for an inspection, seemingly without cause?
Answer:
The situation raises several issues and concerns which should be brought to the attention of lot owners and the chairperson either through their Strata Manager or by seeking further legal advice.
The first thing that comes to mind is to ask whether the Chairman is qualified to carry out such inspection? If so, does he/she meet the criteria of OH&S requirement to carry out the inspection work in a Strata complex?
Unless there is visible evidence of balcony deterioration, which it isn’t in this case here, the onus is on the lot owner under Section 129 of the Act to properly maintain and keep in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property, and maintain any service that serves that lot exclusively.
The second point to consider is to determine where the lot boundaries lie relative to Common Property, and depending on that determination, the Owners Corporation may have a responsibility to maintain the Common Property section of the balconies. The diagram below illustrates a section cut of a balcony base and the balustrade (side view) with median, interior and exterior line boundaries and shows which sections of the balconies are private and which part is common.
Furthermore, the most important part of the whole process is that the Owners Corporation should acknowledge and comply with the recent changes to the legislation. The Owners Corporations and Other Acts Amendment Act 2021 that came into effect on 1st December 2021 stipulates that an Owners Corporation can authorise a person to enter a Lot to carry out repairs and maintenance to common property. A notice of entry must be given to the lot owner, upon receiving at least seven days’ notice (or less in the case of an emergency), a Lot owner must grant entry to a person authorised by the Owners Corporation to carry out repairs, maintenance or other works to private property or common property in accordance with section 47(1), 47(2), 48(3), 50 and 51.
Complying with the above guidelines would be vital for the Owners Corporation to consider to be able to carry out the required inspection work to the balconies in accordance with Owners Corporation Act 2006 and the Acts Amendment Act 2021.
Further information on the changes to the legislations can accessed through our website https://mbcm.com.au/Authorised-Entry-to-a-Lot/
Rawand Kaka
Head of Strata
