Access to information is central to the effective operation of any strata scheme. Owners, prospective purchasers and other interested parties often require accurate information about a scheme’s financial position, governance and potential liabilities before making important decisions.
The Strata Schemes Management Act 2015 (NSW) (‘Act’) provides mechanisms that facilitate this transparency, including the right to inspect strata records and to obtain a strata information certificate in relation to a particular lot. These provisions are designed to ensure that relevant information about a strata scheme is accessible, while still recognising that certain legal protections may limit the scope of what must be disclosed.
Accessing records
Section 182(1) of the Act allows certain persons to request access to the records of an owners corporation. This includes an owner, mortgagee or covenant chargee of a lot within the strata scheme, as well as a person authorised by any of those parties.
Under s 182(2) of the Act, a request to inspect records must be made by written notice to the owners corporation and must be accompanied by the fee prescribed by the regulations.
Section 182(3) of the Act requires the owners corporation to make the following records available for inspection by the person who made the request, or their authorised agent:
(a) the strata roll,
(b) any other records or documents required to be kept under this Part,
(c) the plans, specifications, certificates, diagrams and other documents required to be delivered to the owners corporation before its first annual general meeting by the original owner or the lessor of a leasehold strata scheme,
(d) (Repealed)
(e) any applicable 10-year capital works fund plan,
(f) the last financial statements prepared,
(g) every current policy of insurance taken out by the owners corporation and the receipt for the premium last paid for each such policy,
(h) if a strata managing agent has been appointed, a copy of the instrument of appointment,
(i) if a strata renewal plan has been given to owners for their consideration under Part 10 of the Strata Schemes Development Act 2015, a copy of the plan,
(j) any other record or document in the custody or under the control of the owners corporation,
(k) if the duties of the owners corporation under this subsection have been delegated to a strata managing agent, any other records (including records of the strata managing agent) relating to the strata scheme that are prescribed by the regulations,
(l) if a building manager agreement is in force or has been entered into but has not yet commenced, a copy of the building manager agreement,
(m) particulars of any service agreement entered into by the owners corporation,
(n) particulars of any agreement entered into with a local council for a strata parking area,
(o) if the request is made within 5 years after the end of the initial period, particulars of any orders made under section 27 and copies of any related contracts or other documents.
However, the statutory right to inspect strata records does not abrogate important common law rights and immunities, such as legal professional privilege. In Owners SP No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221, the Court of Appeal at [20] held (albeit under the former legislation, being the Strata Schemes Management Act 1996 (NSW)):
Section 108 of the Management Act relevantly provides that a lot owner may request an owners corporation to allow an inspection to be carried out. An owners corporation must make any record or document in its custody or under its control available for inspection by a person who makes such a request. A person entitled to inspect a document may take extracts from or make a copy of the document. The primary judge accepted that such statutory provisions are not to be construed as abrogating important common law rights, privileges and immunities, such as legal professional privilege, in the absence of clear words or necessary implication to that effect (referring to Hanks v Admiralty Resources NL (No 2) [2011] FCA 1464, which deals with s 247A of the Corporations Act 2001 (Cth) (the Corporations Act)). His Honour then said that, at common law, a lot owner, in relation to the relevant owners corporation, should be in a similar position with respect to the inspection of documents, to that of a shareholder of a corporation in relation to the corporation before the enactment of the Corporations Act.
Accessing certificates
Section 184(1) of the Act further provides an owner, mortgagee or covenant chargee of a lot in a strata scheme, or a person authorised by any of them, may request the owners corporation to issue a certificate under this section (a ‘strata information certificate’) in relation to a particular lot.
Under s 184(2) of the Act, the request must be made by written notice to the owners corporation and must be accompanied by the fee prescribed by the regulations.
Section 184(3) of the Act provides that the strata information certificate must specify the following information in respect of the lot and the strata scheme:
(a) the amount of any regular periodic contributions for the lot determined by the owners corporation under this Act, the periods for which those contributions are payable and any discounts applicable for early payment,
(b) whether there is any amount unpaid of any contributions determined for the lot and, if so, the amount unpaid and, in the case of a contribution levied for the capital works fund, the date on which the contribution was levied,
(c) whether there is any amount unpaid by an owner under a common property rights by-law or a by-law made under section 108,
(d) whether there is any amount unpaid of any contribution levied under section 81(4) for the lot and, if so, the amount unpaid and the date on which it was levied,
(e) any amount and rate of interest payable in relation to any unpaid contribution referred to in this subsection,
(f) whether there is any amount recoverable from the owner of that lot for work carried out by the owners corporation,
(g) the proposals for funding the matters set out in the 10-year capital works fund plan,
(h) whether or not a strata renewal committee has been established in relation to the strata scheme under the Strata Schemes Development Act 2015,
(i) any other information that is required to complete the certificate.
Section 185 of the Act provides that a strata information certificate is conclusive evidence, as at the date of the certificate, of the matters stated in it in favour of a person (whether or not the applicant for the certificate or a person referred to in the certificate) who takes, for valuable consideration: (a) an estate or interest in a lot in a freehold strata scheme to which the certificate relates, or (b) an estate or interest in a lease of a lot in a leasehold strata scheme to which the certificate relates.