Owners Corporation Obligation to Maintain Common Property

17/03/2017

Recent Amendments from December 2016 makes it easier for Lot Owners to recover losses due to failure by Owners Corporation

Watson & Watson experienced Strata Lawyers advise in all areas of disputes in particular, in relation to building disputes, rectification work and obligations of the parties to properly maintain the strata buildings.

Unfortunately there seems to be many more buildings which require rectification works to be undertaken so as to properly maintain the building.  Often serious issues arise.

One of the serious issues that are common are buildings which are affected adversely by water ingress.

The introduction of the Strata Schemes Management Act 2015 has confirmed the obligation on the Owners Corporation to properly maintain and repair the property.  The obligations are similar to those which bound the Owners Corporation under Section 62 of the previous requirements under the Strata Schemes Management Act 1996.

The Owners Corporation have similar obligations which were discussed at length in many cases including Seiwa Pty Limited v Owners Corporation Strata Plan 35042 which confirmed that the obligation to maintain is an absolute obligation upon the Owners Corporation.

The Application for an order that the Owners Corporation maintain the common property is to the NSW Civil and Administrative Tribunal (NCAT) which has assumed the roles previously undertaken by the Consumer, Tenancy and Trader Tribunal (CTTT).

Under the provisions of the 1996 Strata Schemes Management Act the NCAT (or CTTT) had jurisdiction relating to the obligations of the Owners Corporation to maintain the common property, only to make orders requiring the Owners Corporation to maintain or undertake works to maintain the common property (and ancillary orders).  However under the 1996 Act the NCAT did not have the jurisdiction to award damages in favour of a Lot Owners who suffered losses due to the neglect of the Owners Corporation failing to maintain the common property.  Often Lot Owners suffer damages for example loss of rent.

Prior to the introduction of the Strata Schemes Management Act 2015 an affected Lot Owner who suffered losses was obliged to make Application in another jurisdiction to recover the losses.  All these procedures were expensive, cumbersome and usually once the rectification works had been undertaken either with Solicitors such as Watson & Watson acting on behalf of Lot Owners to remind various Owners Corporations of their strict obligations to maintain common property.

Watson & Watson in more than 95% of cases achieved this by taking appropriate steps and engaging with the Owners Corporation through their Strata Managers to achieve an outcome whereby the works were carried out without the need of commencing proceedings at the NCAT or CTTT.  Usually Lot Owners do not wish to proceed further once the works had been undertaken in circumstances where the negotiations did not result in compensation to the various Lot Owners for their full losses.

However under the 2015 Strata Schemes Management Act there is a provision which allows a Lot Owner to recover from the Owners Corporation as damages for breach of statutory warranty any reasonably foreseeable loss suffered by the Owner as a result of the contravention by the Owners Corporation of the Section requiring the Owners Corporation to maintain the common property.  There are strict time limits that apply so urgent action needs to be taken to ensure that such losses can be included in the claims.  This can now be brought in the NCAT at the same time as the claim against the Owners Corporation for an order that the Owners Corporation undertake the necessary works to maintain the common property.

If you have been unable to achieve a resolution with the Owners Corporation to rectify common property please contact Richard Watson or his Personal Assistant, Shereen DaGloria to discuss the matter so that you do not continue to suffer due the failures of the Owners Corporation to maintain the property.

Unfortunately we have had cases where Lot Owners have suffered without taking appropriate action and often in relative silence and sometimes for many years with serious consequences to their residence as a result of which they have been unable to inhabit or rent their Lot.