NCAT Strata Disputes: How to Handle an Owners Corporation's Failure to Maintain Common Property

Dealing with unresolved maintenance issues in a strata scheme can be a complex and frustrating experience for lot owners. Whether it is a deteriorating roof, widespread water ingress, or a cracked driveway, the failure of an owners corporation to address common property defects often leads to tension within the community. When internal communication breaks down, lot owners in New South Wales frequently turn to the NSW Civil and Administrative Tribunal (NCAT) to enforce repair obligations.

This guide outlines the legal responsibilities of the owners corporation, the financial implications of maintenance delays, and the formal process for resolving an NCAT failure to maintain common property NSW dispute.

What is the owners corporation’s duty to maintain common property?

Under Section 106 of the Strata Schemes Management Act 2015 (NSW), an owners corporation holds a strict liability duty to maintain and keep in a state of good and serviceable repair the common property.

“Strict liability” means that the owners corporation has an absolute legal obligation to fix common property defects. They cannot legally refuse to undertake necessary repairs because the works are too expensive, too difficult, or inconvenient. If an item forms part of the common property—such as external walls, structural slabs, or original balcony tiles—the body corporate must maintain it.

Key Insights on Strict Liability

Preventative maintenance: The duty extends beyond simply fixing things when they break; it includes renewing or replacing common property items when they reach the end of their usable life.
Limited exceptions: An owners corporation can only resolve not to repair a specific item if they pass a special resolution declaring that the repair is inappropriate and that leaving it unmaintained will not affect the safety or appearance of the strata scheme.

What happens if the owners corporation has no money for repairs?

A lack of funds in the administrative or capital works fund is not a valid legal defence for failing to repair common property. If an owners corporation claims they cannot afford the maintenance, NCAT will generally disregard this argument and order the repairs to proceed regardless of the current financial position.

When a body corporate does not have sufficient liquid funds to carry out mandatory Section 106 repairs, they must find the money. This is typically achieved through one of two methods:

Raising a special levy: The strata committee or owners corporation will call a general meeting to pass an emergency or special levy, requiring all lot owners to contribute a lump sum based on their lot entitlement.
Strata finance: The owners corporation may take out a strata loan to fund the repairs immediately, with the loan repayments incorporated into future quarterly levies.

To address the ongoing issue of under-budgeting, recent legislative updates mandate that from 1 April 2026, all owners corporations must use a standardized form for their 10-year capital works fund plans. As outlined by the NSW Government’s guide to strata law changes, this measure ensures major repairs are adequately forecasted and funded in advance, reducing the need for unexpected special levies.

Can you claim compensation for delays in strata repairs?

Yes, lot owners can claim financial damages if an owners corporation fails to maintain common property, provided the failure causes a quantifiable loss. Section 106(5) of the Act allows an owner to seek compensation for losses resulting from the body corporate’s breach of its maintenance duty.

The 6-Year Damages Window

A critical legal update to be aware of is the recent extension of the statutory timeframe for claiming damages. Previously, lot owners had a strict two-year window to initiate a claim. Under recent strata law reforms, the statutory limit to claim damages for a failure to maintain common property has been extended to 6 years.

This brings strata law into alignment with general contract law and provides owners significantly more time to recover costs such as:

Loss of rent: If an investment property is left uninhabitable due to severe water ingress from a common property roof.
Consequential damage: If common property water leaks damage internal lot property, such as carpets, custom joinery, or paintwork.
Alternative accommodation: If an owner-occupier is forced to live elsewhere while common property structural defects make their apartment unsafe.

How does the NCAT dispute process work for common property?

Before NCAT will hear a maintenance dispute, lot owners must generally attempt formal mediation through NSW Fair Trading. The tribunal treats litigation as a last resort, expecting parties to resolve issues collaboratively where possible.

The typical pathway for escalating a strata maintenance dispute in NSW involves four distinct stages:

Stage	Process Description	Timeframe / Notes
1. Internal Notification	The lot owner formally notifies the strata manager or committee of the defect in writing, requesting the item be placed on the agenda for a committee or general meeting.	Response times vary, but clear paper trails are essential.
2. Mandatory Mediation	The lot owner lodges an application for mediation with NSW Fair Trading. A mediator facilitates a discussion to reach a “Settlement Agreement.”	Free of charge. If it fails, a “Notice of Unsuccessful Mediation” is issued.
3. NCAT Application	The owner files a formal application with the NSW Civil and Administrative Tribunal, typically under Section 232 or citing Section 106, attaching the mediation failure notice.	Filing fees apply. Requires submission of comprehensive evidence.
4. Tribunal Hearing	Both parties present evidence (expert reports, correspondence logs) before an NCAT Member, who then issues binding legal orders.	Can take several months depending on tribunal caseloads and complexity.

What evidence is needed for an NCAT strata maintenance claim?

NCAT relies heavily on independent expert evidence rather than anecdotal builder quotes to determine the scope of necessary repairs. An owners corporation cannot simply present an opinion from a handyman to counter a structural defect claim.

If you are preparing an application regarding a failure to maintain common property, you should gather:

Independent Expert Reports: Technical assessments from qualified building consultants, structural engineers, or specialized plumbers detailing the exact cause of the issue (e.g., proving a leak originates from a common property membrane rather than a lot owner’s shower tray).
Photographic Evidence: Clear, date-stamped photographs showing the progression of the damage over time.
Communication Logs: Copies of all emails, meeting minutes, and maintenance requests demonstrating that the owners corporation was aware of the issue but failed to act within a reasonable timeframe.
Financial Records: Rent ledgers or quotes for internal repairs if claiming damages for consequential losses.

What orders can NCAT make against an owners corporation?

NCAT has broad statutory powers to intervene when a strata scheme is dysfunctional or failing its legal duties. Depending on the severity of the breach, the tribunal can make several types of legally binding orders.

Specific Repair Orders

Under Section 232 of the Strata Schemes Management Act 2015, NCAT can order the owners corporation to carry out specified repairs to the common property. These orders usually come with a strict deadline for completion, forcing a reluctant strata committee to engage contractors and commence works.

Damages Orders

As discussed, NCAT can order the owners corporation to pay financial compensation to a lot owner for losses directly caused by the maintenance delay, adhering to the 6-year claim limitation period.

Appointment of a Compulsory Strata Manager

In extreme cases where the owners corporation demonstrates a systemic failure to manage the building—or where the strata committee is paralyzed by internal conflict—NCAT can make an order under Section 237 to appoint a compulsory strata manager.

When appointed, the compulsory manager is granted all the powers of the owners corporation, the strata committee, and the chairperson. They can single-handedly raise special levies, terminate non-performing contractors, and authorize major capital works without needing a vote from the owners. While highly effective for fixing neglected buildings, this removes democratic control from the lot owners and is treated by the tribunal as a serious intervention.

Frequently Asked Questions

Can a lot owner withhold strata levies if repairs aren’t done?

No, a lot owner cannot legally withhold quarterly strata levies, even if the owners corporation is completely failing to maintain the common property. Under NSW strata legislation, the obligation to pay levies is entirely separate from the body corporate’s duty to repair. Withholding levies will result in the owner incurring penalty interest and debt recovery costs, and it may remove their right to vote at general meetings.

Does the owners corporation pay for damage inside my lot caused by a common property leak?

Generally, yes. If a common property failure—such as a ruptured main pipe or a failed external waterproof membrane—causes consequential damage to private lot property (like paint, carpet, or internal cabinetry), the owners corporation is liable for repairing that damage or compensating the lot owner under Section 106(5) of the Act.

Do I need a lawyer to go to NCAT for a strata dispute?

Legal representation is not mandatory at NCAT, as the tribunal is designed to be accessible to everyday citizens. However, strata law is highly technical. For complex cases involving significant structural defects, large financial damages, or technical expert reports, many lot owners and owners corporations choose to seek leave from the tribunal to be represented by a specialist strata lawyer.

What if the strata committee refuses to hold a meeting about the repairs?

If the committee ignores your maintenance requests and refuses to table the issue at a meeting, your next step is to bypass internal channels and apply for mandatory mediation through NSW Fair Trading. The prospect of formal mediation often compels unresponsive committees to finally address the issue.

Can an owners corporation appeal an NCAT decision?

Yes, parties can appeal an NCAT decision to the NCAT Appeal Panel, but generally only on a “question of law” rather than simply disagreeing with the factual outcome. Appeals must usually be lodged within 28 days of the original decision being handed down.

Navigating common property defects, special levies, and NCAT disputes requires a clear understanding of your building’s financial health. An owners corporation that consistently fails to maintain the property is often one struggling with inadequate capital works planning.

StrataClear helps Australian strata owners unpack their levy notices, interpret complex building financials, and understand exactly where their money is going. By bringing transparency to strata budgets, we empower owners to ensure their schemes are well-funded and legally compliant before disputes escalate.