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A piece of my glass splashback recently shattered and was replaced under our Strata insurance policy. The splashback was made up of 6 different shaped pieces of toughened glass and was attached to a boundary wall in my kitchen. It was installed at the time of building. The strata manager claimed that the Owners corporation would not pick up the bill for the excess on the insurance claim to repair it as it was within the lot and anyway, a glass splashback was not the same as ceramic tile ,which would have been classed as common property. Any advice on this one?
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You raise an interesting question. If the splashback is directly fitted to a common wall, then it is obviously fulfilling the same function as ceramic tiles, and has been fitted in lieu of tiles, as you say by the builder. In the case of flooring, hard surfaces directly attached to concrete are accepted as being part of the common property, these may be either ceramic tiles or parquet for example, but not carpet. Same as vermiculite on ceilings. Quite frankly I don’t see any difference in an original permanent hard attachment to a vertical part of common property rather than a horizontal one, and if your property was constructed after 1974, then your Strata Manager may well be incorrect in his interpretation.
I agree with DaveB (mostly) According to Strata Community Australia’s “Who’s responsible for what …” document, tiles fixed to common walls or walls adjoining common property are the OC’s responsibility. I too think a splashback should be treated as if it were tiles.
However, when you refer to “our strata insurnace” do you mean your own home contents insurance or the Owners Corporation insurance?
Also, FYI, the Who’s responsible memo is not law and it may not even be part of your by-laws but it is referred to by strata managers, Fair Trading mediators and CTTT adjudicators when considering cases.
Summing up, if the splashback is on an internal wall, it’s your problem. If it’s fixed to an external wall or a wall adjoining another unit, you have case to say it’s the OC’s pigeon.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
In very simple logical terms, if the OC’s insurance covers most of the claim then the OC is responsible for the excess.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
That’s right – their insurance, their excess.
Gosh some strata managers try it on.
Sorry to be the only dissenting voice, but I think the answer is “it depends”.
Some strata insurance policies (e.g. your sponsor’s) cover “proprietors fittings and fixtures” in addition to common property.
So, in general terms, just because there is a claim on the strata insurance policy, doesn’t always mean it’s the OC’s responsibilty and cost (excess).
In this case, because the splashback was an original hard surface attachment to a common property wall, I think it is the OC’s responsibility, but not necessarily cost.
Some strata schemes (e.g. ours) have a By-Law concerning common property which amounts to “you break it, you pay for it”.
So the question arises, how did the splashback break?
Was there a minor earthquake which stressed it to break?
Or did the cook accidentally hit with a heavy-base saucepan?
If of the latter nature, why shouldn’t the Lot Owner pay the excess and just be grateful that the OC’s insurance has covered the majority of the cost?
@JimmyT said:
In very simple logical terms, if the OC’s insurance covers most of the claim then the OC is responsible for the excess.I’m afraid I agree with Kangaroo here Jimmy.
The Strata insurance covers the rebuilding cost of the whole lot common and lot property and so just because the insurance accepts reasponsibility dosn’t mean that it’s Strata reasponsibility to cover the excess.
Whether the splashback is o/c reasponsibility is a moot point but I would agree with the SM origional decision. Why should the O/C have to pick up the excess for every minor damage caused within the lot. I tend to belive residents should accept reasponsibility for their own actions and not expect others (O/C) to fix every small problem they have.
Why should owners who are carefull and respectfull of the property have to subsidise owners who don’t give a dam and expect the O/C to pay for everything.
The QLD act covers this situation fairly IMHO
3) For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.
I must admit that when I read lefty’s post last night I wondered what spontaneous “event” could have shattered that glass splashback, and I was tempted to respond in much the same way as Roo and KP now have.
I think there’s a broader issue here, in that on the basis of a recent experience it appears that Strata Insurers are more accepting of claims that are submitted by their Strata Manager / Agents , are less inclined (or perhaps unable) to do anything other than a desk-top assessment of any claims irrespective of who submitted them, and have a predisposition to directly pay the claimant on the basis of quotation/s instead of issuing work orders to and then paying the contractors who’ve been selected to make the repairs.
I wonder if a consequence of that approach is that Building Insurance premiums are forecast to increase by 10% this financial year, because no plausible reason was given for that when I rang our insurers in preparation for this year’s budget.
@kiwipaul said:
The Strata insurance covers the rebuilding cost of the whole lot common and lot property and so just because the insurance accepts reasponsibility dosn’t mean that it’s Strata reasponsibility to cover the excess.
OK, the second part of that statement isn’t entirely correct, as we have established previously elsewhere in this forum. Strata insurance is there to cover repairs to common property, not just the rebuilding cost.
Secondly, if the Owners Corp wasn’t liable for the repair, why did the strata manager put in a claim? And why did the insurer cover it (notwithstanding Whale’s comment below)?
The question of how the damage occurred is kind of irrelevant, if neither the insurer nor the strata manager is prepared to question it. If the strata manager believed Lefty wasn’t entitled to the money, they shouldn’t have made the claim in the first place.
The Owners Corporation negotiates an excess on its insurance claims so that it can save on premiums – that means it accepts that it will have to pay a fixed amount of any claims that are made.
If the refusal to pay the excess is merely a way of sidestepping their responsibilities, then they need to be pulled into line. You can’t be half-pregnant (except, it seems, in Queensland).
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
lefty – so in the circumstances where the glass splashback as originally fitted to a common wall did, as you’ve now clarified (thanks) spontaneously fracture, the repair and/or replacement of that is the responsibility of the Owners Corporation (O/C), and irrespective of whether it elects to meet the consequent costs itself or to claim those against its building insurance, the entirety of those costs including the excess in the latter case is the O/C’s responsibility.
The only “out” for an O/C in circumstances such as yours is a Special By-Law where, under the provisions of Sect 62 (3) of the NSW Strata Schemes Management Act (1996), it could at its discretion specially resolve that “it is inappropriate to maintain, renew, replace or repair” a particular item of its common property – namely the splashbacks.
However your O/C has lodged an insurance claim, so I’ll assume that it hasn’t adopted this provision, and reiterate that under that scenario (or any other) you shouldn’t be one cent out-of-pocket.
Lefty, thanks for your open and prompt answers to all questions.
I now agree with Whale that, for your case, the OC should meet the excess.
And, I never could see any difference in functionality between ceramic tiles and glass splashback.
Having said that, I did like the clause KP quoted from the QLD Act. It changes the onus from the OC having to prove negligence inside a Lot to reject a claim to having to recognise an Act of God to approve a claim.
I also fervently hope that the changes to the NSW Act will classify all floor and wall coverings, including tiles (and splashbacks), as proprietor’s fixtures and fittings. In my opinion, this would have many benefits, especially for renovations.
Anyone agree?
I agree with Whale et.al.
However I note that regardless of a special by-law saying that maintenance of a section of common property is the lot owners responsibility, the owners corporations insurance policy will still pay out the claim (I know of several claims where this was the case). Further to this, the lot owners contents will NOT cover any property which is covered by the owners corporations insurance. So in such cases the practical approach is; if the maintenance responsibility lies with the lot owner, then the lot owner arranges the repair and then lodges a claim through the strata insurance company. Any settlement will be automatically less the excess (and GST if applicable) and will be made out to the owners corporation. The owners corporation should then reimburse the lot owner the settlement amount.
If the repair is the responsibility of the owners corporation, then they arrange for the repair, pay the invoice and make the claim.
In this case – sounds like common property to me.
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