Written by Leisha de Aboitiz and Ole Mitrevski on August 1, 2015
When it comes to repairs and maintenance, an Owners’ Corporation needs to take its obligations very seriously.
An Owners’ Corporation must repair and maintain common property in accordance with section 62 of the Strata Schemes Management Act 1996 (NSW) (the Act). This is an absolute and strict liability duty, and is commonly misunderstood.
The duty imposed under section 62 is a duty that goes beyond taking reasonable steps or using best endeavours, meaning that an Owners’ Corporation could be in breach of its obligations under section 62 despite:
This is because section 62 imposes a strict and absolute duty on an Owners’ Corporation to maintain and keep its common property and personal property in good repair; i.e. the obligation is not only to repair damage when it occurs, but to prevent it from occurring in the first place.
When there is a breach?
A breach will be taken to occur from the moment any part of the common property or personal property of the Owners’ Corporation (e.g. washing machines, exhaust systems) is not working properly or requires repair, unless the Owners’ Corporation determines not to repair it per section 62(3). It doesn’t matter if the Owners’ Corporation acts promptly in fixing the problem; theoretically, the problem should have never occurred.
To comply with its duties under section 62, an Owners’ Corporation must:
Compliance with section 62 does not require:
Resolving not to repair or maintain common property
Pursuant to section 62(3), an Owners’ Corporation may determine (by special resolution) that sub-sections 62(1) and (2) will not apply to certain property, provided that:
There is no need to provide reasons for passing the special resolution, however relevant considerations may include: cost of repair, interference or disturbance, suitability or usefulness etc.
Recent case law suggests that a breach of section 62 would most likely give rise to statutory remedies (e.g. an order to comply, rather than damages). However, if malfunctioning or damaged common property causes loss, damage or injury (e.g. to a lot owner or visitor), then the Owners’ Corporation may be exposed to a common law claim for damages (e.g. in negligence).
Some ways to reduce risk associated with a breach, or potential liability flowing from a breach, include:
Tips and traps for strata managers
Regardless of how the repair or maintenance issue arises (e.g. at a general meeting or by notification), it is important to recognise the obligations of an Owners’ Corporation under section 62 and to ensure that:
If the Owners’ Corporation or its Executive Committee does not fully appreciate the full scope of the duty, or it appears there is a breach, then consider whether legal advice should be obtained.
DISCLAIMER: This article is intended to provide commentary and general information. It should not be relied upon as legal advice. Formal legal advice should be sought having regard to any particular facts or circumstances.
 Seiwa Pty Ltd v Owners Strata Plan 35042  NSWSC 1157 – contributory negligence is no defence to the breach of a statutory duty, but a cross-claim may be available.
 Seiwa Pty Ltd v Owners Strata Plan 35042  NSWSC 1157
 Ridis v Strata Plan 10308  NSWCA 246.
 Owners – Strata Plan 21702 v Krimbogiannnis  NSWCA 411.
We are delighted that Massons has been selected as an “Excellence Awardee” in the category of “Boutique Firm of the Year” at the 2022 Australasian Law Awards.
Thank you to all of our wonderful clients who have supported our nomination in this category, and to our amazing lawyers and support staff for making this possible!
Wishing all the other Awardees the best of luck and looking forward to the Gala Dinner. A night out with our team is always cause for celebration – win, lose or draw!!
March 23, 2022
We are excited about our inclusion in Doyle’s Guide for 2022 for NSW in the following categories:
Massons – Leading Property & Real Estate Law Firms
Jodie Masson – Leading Property & Real Estate Lawyers and Leading Leasing Lawyers
Leisha de Aboitiz – Leading Property & Real Estate Lawyers and Leading Leasing Lawyers
Ben Malone – Property & Real Estate Law Rising Stars
Thank you to all of our peers and wonderful clients who have helped to achieve this recognition.
March 14, 2022
February 28, 2022
We are excited to announce the appointment of Alex Ho as a Senior Associate at Massons. Alex started with us as a paralegal and has achieved this milestone in record time due to his hard work, his ability to develop and sustain fantastic relationships with clients, his engagement in constantly seeking to improve himself and others in equal measure, and his absolutely infectious enthusiasm. We couldn’t be prouder! Congratulations Alex!
January 5, 2022
December 8, 2021
We are excited to have been named as finalists in several categories in the Lawyers Weekly “Women in Law Awards 2021”:
– Massons – “Boutique Diversity Law Firm of the Year”
– Ole Mitrevski – “Senior Associate of the Year – SME Law”
– Michelle Mon – “Rising Star of the Year – SME Law”
– Nicole Caryofyllis – “Legal Support Professional of the Year”
We are proud to be recognised as a Firm which supports diversity in the workplace and are humbled to be included in the list of finalists in these categories. Win or lose, we are looking forward to celebrating the Awards night and would love to thank our peers and clients who have helped us achieve this recognition.
October 12, 2021