Maintenance and repairs in Strata Schemes - Owners Corporation Obligations

22/04/2015

In 2014 Paul who owned a Unit in a complex at Manly approached Richard Watson as Paul had water damage to his Unit.  Above Paul’s Unit was a balcony which formed the roof of Paul’s Unit.  The balcony was used by the Owner of the Unit on the next level above. 

The damage had continued for some years with no solution in sight.  The Owners Corporation seemed to take the view that the problem was one that should be resolved between Paul and the Owner of the Unit above.  The Owner of the Unit above was not interested in resolving the issue. 

Paul spoke to Richard Watson to ascertain what could be done to solve the long outstanding water damage issue. 

The Owners Corporation is responsible for maintenance of the common property.

A Strata complex essentially consists of two (2) different species of property, namely:

  1. Each lot which is owned by the particular Unit or Lot owner, and
  2. The common property which is property not owned by the individual lot owners. 

There are some questions as to which part of the building is part of the property owned by each individual lot owner and what part remains as part of the common property.

The basic rule is that everything inside the airspace of the Unit usually forms part of the individual lot and the maintenance of that Lot is the responsibility of the particular lot owner.  Everything outside the airspace usually forms part of the common property and is the responsibility of the Owners Corporation. 

Section 62(1) of the Strata Schemes Management Act (The Strata Act) provides that the Owners Corporation must properly maintain and keep in a state of good repair and service or repair the common property.

In November 2006 Mr Justice Brereton in the case of Seiwa Pty Limited v Owners Corporation Plan 35042 dealt with this issue. In Seiwa’s case Mr Justice Brereton observed:

“The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state of which enables it to serve the purpose for which it exists.  Thus the body corporate is obliged not only to attend to cases where there is a malfunction but also to take preventative measures to ensure that there not be a malfunction.  The duty extends to require remediation of defects in the original construction of the common property.  And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them”     

“It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the Section 62 duty”.

In principle the Owners Corporation must maintain the common property.

In the circumstances the first question to decided in cases such as Paul’s case is whether  the cause of the leak was failure to maintain common property or was it failure by the owner of the Unit above to maintain his lot.

In this particular case the water leaking into Paul’s Unit was through the failure of the waterproofing of the deck above Paul’s Unit.  This is part of the common property and in those circumstances the Owners Corporation must maintain that part of the building. 

It was through the experience of Richard Watson and Watson & Watson engaging the appropriate Building Consultant that the cause of the water damage was comprehensively discovered and we were in a position satisfy the Owners Corporation of the cause and after some short time we satisfied the Owner’s Corporation of their obligations.  This was without the need to take the matter to a Court or Tribunal.

In those circumstances we were able to obtain a complete resolution from the Owners Corporation which rectified the defective cause of the water leaks and rectified the damage in Paul’s Unit.

Watson and Watson is experienced in all areas of building matters and strata complex issues.  It is critical that the appropriate Building Consultant be engaged at an early stage to ascertain the true cause of any defect.  Watson and Watson have in excessive of 25 years experience in engaging the appropriate expert and ascertaining the cause of the defect and advising as to the appropriate course to resolve the issues in a cost efficient manner. 

If there are issues relating to your use and enjoyment of your home being compromised by failure of another within the complex please telephone Richard Watson to discuss your available remedies.

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