In a NSW strata scheme, the owners corporation repairs common property and each lot owner repairs their own lot. If the defect came from the original construction, the builder and developer can still be liable, through statutory warranties, the strata building bond or a duty of care claim. Which applies depends on where the defect is and what caused it.

This guide covers NSW only. It is general information, not legal advice.

Who is responsible for strata repairs in NSW?

Under the Strata Schemes Management Act 2015 (NSW), the owners corporation must maintain and repair the common property. Each lot owner looks after their own lot.

The hard part is the line between the two, and that line is drawn by the registered strata plan, not by what seems sensible. In many schemes the lot boundary is the inner surface of the walls, floor and ceiling. That puts the structure, the external walls and the shared pipes in common property, and the paint, floor coverings and fittings inside the lot. Older plans can draw the boundary differently, and by-laws can hand particular items to lot owners.

So before arguing about whose a defect is, look at three documents: the strata plan, the scheme's by-laws, and any common property memorandum the scheme has adopted. Every answer below comes back to them.

Who is responsible for windows in strata?

Usually the owners corporation, because windows set in an external wall are normally common property. That generally includes the glass, the frame and the seals.

The exception is a by-law or a plan that says otherwise. Some schemes pass by-laws making lot owners responsible for window glass or maintenance, so check both documents before anyone pays.

Is strata responsible for fixing grout and tiles on balconies?

It depends on the layer. A balcony is a stack: the concrete slab, a waterproof membrane, a screed bed, then tiles and grout. The slab is usually common property. Whether the membrane, screed and tiles are common property or part of the lot varies with the plan and the by-laws, so there is no single NSW rule to quote.

Grout is also worth reading as a symptom. Cracked or washed-out grout can be ordinary wear. Paired with drummy tiles, white salt deposits on the soffit below or a stain in the unit underneath, it often means water is getting past the membrane. At that point the question is no longer grout. It is a waterproofing defect, and the next section applies.

Is a bathroom leak covered by strata?

It depends on where the water comes from:

A fitting inside the lot, such as a tap, flexible hose or shower mixer, is usually the lot owner's responsibility.
A shared pipe, riser or stack is usually common property and the owners corporation's responsibility.
A failed waterproof membrane is where most disputes sit, because who owns the membrane depends on the plan and by-laws, and who caused the failure decides who pays.

Take one leaking shower. If the membrane failed because it was installed badly when the building was new, it points to the builder and the statutory warranty clock. If the same leak started after a lot owner renovated the bathroom, it points to that lot owner, with no warranty and no bond behind it. The law can be the same in both cases. What separates them is evidence.

Three things decide it:

Photographs before any repair. Once the tiles are off and the floor is re-laid, the original construction is gone.
The removed material. Keep a piece of the tile and bed with the membrane attached, if one can be saved.
A report that traces the water path. A report that only says "there is a leak" settles nothing. One that records where the water enters, how it travels and which element failed settles most of the argument.

When Owner Inspections investigates a leak in a strata building, the report is written to answer that question: where the water gets in, the path it takes, and whether the failed element belongs to the common property or the lot. For what a defect investigation report covers, see the service page.

Find out where the water is coming from

A defect investigation traces the source of a leak or failure and records the evidence before repairs remove it, so the owners corporation, lot owner and builder are arguing about the same facts.

Book a Defect Investigation

Does strata insurance cover building defects?

Generally not the defect itself. The owners corporation's building insurance responds to insured events, such as storm damage or a sudden burst pipe. Defective construction is generally not an insured event, although some policies cover sudden damage that results from a defect. The policy wording decides, so read it before assuming either way.

For defects in newer buildings, the route runs back to the builder and developer. Developers of new strata buildings that are not covered by home building compensation insurance must lodge a building bond before applying for an occupation certificate. In practice that generally means buildings of more than three storeys. The bond is currently 2% of the contract price, and the rate is set by regulation. An independent inspector reports on the building twice, and the bond can go toward defects the final report identifies. The Strata Building Bond and Inspection Scheme page explains the two inspections, and our guide to how the bond scheme works covers the developer's side. Smaller strata buildings are generally covered by home building compensation insurance instead.

How long does a builder have to fix defects in NSW?

There are two clocks, and people often mix them up.

The first is how long you have to bring a claim. There are three main routes:

Statutory warranties under the Home Building Act 1989 (NSW) run for six years from completion for a major defect and two years for any other defect. A major defect is a defect in a major element, such as load-bearing parts, a fire safety system or waterproofing, that causes or is likely to cause the building or part of it to be unusable for its intended purpose, destroyed, or threatened with collapse. The regulations can prescribe other major defects. A leaking balcony is not automatically a six-year defect. If a breach becomes apparent in the last six months of the period, proceedings can be started within a further six months.
The building bond, described above, for buildings that fall under the scheme.
The duty of care under the Design and Building Practitioners Act 2020 (NSW). Builders and others who carry out construction work owe each owner, including later owners, a duty to take reasonable care to avoid economic loss from defects. It applies to apartment buildings as well as other buildings. A civil action generally cannot be brought more than 10 years after the work is completed, under section 6.20 of the Environmental Planning and Assessment Act 1979, and completion is usually the date the occupation certificate is issued.

The second clock is how long the builder has to fix a defect once told. No statute sets a single number. It is set by the time in your written notice, a regulator's order or a tribunal order. For the detail on claims, see warranty claims for apartment defects.

What are the changes to NSW strata law?

The settled framework is the building bond scheme in the Strata Schemes Management Act 2015, and two 2020 Acts: the Design and Building Practitioners Act and the Residential Apartment Buildings (Compliance and Enforcement Powers) Act, which gives the NSW building regulator powers over defective new apartment buildings. The reform program is ongoing and rules change, so check NSW Fair Trading and the NSW Government's strata bond page for anything recent before relying on it.

What happens when the owners corporation will not act?

Work up a ladder:

Put it in writing to the strata manager or secretary, with photographs and dates.
Ask for a motion at a general meeting so the owners decide, and the decision is minuted.
Mediation through NSW Fair Trading. Most strata disputes generally have to go through mediation before the tribunal will hear them.
NCAT. The NSW Civil and Administrative Tribunal can make orders to settle strata disputes, including an owners corporation's failure to repair common property.

At the tribunal, the evidence from the bathroom section is what gets tested. Our guide to expert witnesses in body corporate disputes explains that role, and if the dispute is with the builder rather than the scheme, see if a builder won't fix defects.

We are an inspection company, not a law firm. A dispute at this stage needs a solicitor.

Frequently Asked Questions

QWho arranges a defect report on common property?

The owners corporation, through a committee decision or a resolution at a general meeting, and it comes out of the scheme's funds. A lot owner can commission their own report on their own lot.

QCan one lot owner make a claim for a defect in common property?

Usually the owners corporation brings claims about common property, because it owns and must repair it. A lot owner deals with defects in their own lot and can push the owners corporation to act through the steps above.

QWhat if a defect in my lot also affects common property?

Both parties are involved. A leak through a membrane can damage the slab and the unit below at once. Tell the owners corporation in writing early, agree who investigates, and keep the evidence so each side's share can be worked out.