How infrastructure contracts can fix illegal solar in strata

//How infrastructure contracts can fix illegal solar in strata

How infrastructure contracts can fix illegal solar in strata

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Most solar in strata is likely illegal. This is because, back in the day, owners failed to obtain an ‘exclusive use’ by law. There were good reasons for this (see here).

Changes to the Strata Titles Act in WA have now changed the status quo. An owner no longer needs the by law. All the owner now needs is an ‘infrastructure contract’.

However, the law does not fix past solar or solar that does not use one of these contracts.

How does the infrastructure contract fix illegal solar?

The contract sets out the strata’s consent to the solar. This is crucial because without such consent, the solar is illegal.

Most people would have tried to do the right thing. They would have sent a request to their strata for consent. And most strata would have said yes. However, this was not the same as ‘consent’ at law. The law required a by law. The purpose of the contract is to replace the need for the by law. This is so the consent is valid.

Are their other benefits to the infrastructure contract?

Yes. By doing one, the law grants certain rights to and imposes certain duties on the strata and the owner. These are set out in the Strata Titles Act and the Regulations. They include:

  • a duty on the owner to maintain and repair;
  • a right of the owner to use the power;
  • a duty on the owner to tell the strata if the owner sells the system;
  • a right of the strata to demand extra insurance costs;
  • a right of the strata to terminate the contract if the system damages the common property; and
  • a duty on the owner to remove the infrastructure when the contract terminates.

The above rights and duties are not exclusive. And the strata and the owner can agree to change some of them. But not all of them.

There are also other things which the law does not address. This includes:

  • what happens if the owner sells the lot;
  • a duty on the owner to ensure they carry out works properly and in time;
  • a right of the strata to view and approve plans;
  • insurance;
  • other rights to terminate the contract; and
  • a duty on the owner to make good.

The above things are not exclusive.

What are the consequences of not having an infrastructure contract?

It means the strata and the owner do not have the above rights. It means the strata is taking risks on the other issues as well.

If the solar is illegal, there may be other issues. For instance, the strata’s insurance may not cover illegal fixtures. So, if for instance a defect in the system causes a fire, the insurance may not cover the damage. There is only one way to be sure that there is cover. Make sure that the system complies with the law!

If you need an infrastructure contract or want to talk more, please contact us here or below. We will be happy to help you.

This article is not legal advice. You should get independent legal advice to deal with your situation.

For more articles, see here.

2021-02-19T10:38:19+08:00

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