Owners Corporation’s Duties Regarding Window Safety Devices/Barriers
We have received a number of enquiries lately in relation to the effect of the newly inserted section 64A of the Strata Schemes Management Act 1996 (“SSMA”) (which came into effect on 11 December 2013 pursuant to the Strata Schemes Management Amendment (Child Window Safety Devices) Act 2013) in particular:
(a) can an owners corporation make an owner or occupier of a lot who has installed a window safety device and/or window barrier serving their lot responsible to maintain, repair, renew and replace the window safety device and/or window barrier under a section 47 of the SSMA by-law?
(b) who is responsible to maintain, repair, renew and replace the window safety device and/or window barrier serving the owner’s or occupier’s lot after it has been installed by the owner or occupier of a lot?
The starting point is section 64A(1) of the SSMA which states that an owners corporation of a strata scheme to which this section applies must ensure that there are complying window safety devices for all windows of each building in the strata scheme that are windows to which this section applies i.e. by 13 March 2018.
It is interesting to note that despite any other provision of the SSMA, the relevant regulation and any by-law of the strata scheme, a lot owner is permitted to install a complying window safety device on their window (other than a window on another owner’s lot) but subject to the statutory obligations to repair any damage caused to any part of the common property by the installation of the device (s64A(4)(a) of the SSMA), ensure that the device is installed in a competent and proper manner and has an appearance, after it has been installed, in keeping with the appearance of the building (s64A(4)(b) of the SSMA).
It is the author’s view that:
1. An owners corporation still has the power to make a by-law under section 47 of the SSMA to make an owner or occupier of a lot responsible to maintain, repair, renew and replace the window safety device and/or window barrier serving an owner’s or occupier’s lot after it is installed as section 43(1) of the SSMA states, amongst other things, that by-laws can be made in relation to “safety and security measures”.
2. If an owner or occupier of a lot installs the window safety device and/or window barrier serving an owner’s or occupier’s lot but the owners corporation does not pass a section 47 by-law making the owner or occupier of the lot responsible to maintain, repair, renew and replace the window safety device and/or window barrier, an owners corporation may find it difficult to demand an owner or occupier of a lot to maintain, repair, renew and replace the window safety device and/or window barrier after it has been installed. However, a section 47 by- law could assist an owners corporation in these circumstances if the owner or occupier is in breach of the by-law, as the owners corporation could simply issue a notice to comply with the by-law, rather than have to resort to costly and time consuming mediation and adjudication.
3. To avoid unnecessary litigation and to avoid liability to the extent permitted by law, we recommend an owners corporation’s executive committee consider the need to register a section 47 of the SSMA by-law making the owner or occupier of a lot in a scheme that installs a window safety device and/or window barrier responsible for its future maintenance, repair, renewal and replacement.
If you have any queries or require further assistance implementing a section 47 by-law, please feel free to contact our strata law specialist Michael Pobi on (02) 8710 3430 or e-mail him at michael.pobi@pobilawyers.com
Please note that the information contained in this article is not legal advice and should not be relied upon. You should obtain legal advice before you take any action or otherwise rely upon the contents of this article.
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