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I own a unit in the ACT
My unit incurred water damage (from rain) due to a building defect in the unit above.
After much delay, the defect was repaired by the strata under the guise of builders warranty but it took some time to actually get it attended to.
As a consequence, I incurred damage to the units contents, specifically the floating floorboards. Because of the delays in getting the matter attended to, largely between Strata and the Builder, the floorboards have now started lifting. Estimates to repair the damage is in the order of a couple of thousand $.
The builder has indicated its not his problem. Strata referred it their bld insurer who rejected the claim. Strata again considered the matter and have advised they would not pay for repairs. Its not covered by my contents insurer who are of the view its a strata issue.
In my mind its pretty simple. An defect issue that is strata’s responsibility damaged my property and irrespective of whether there is insurance, there is an obligation on strata to make good any damage they cause. The damage was exacerbated by the slowness of the Strata response
Am I right?
I am thinking of putting it to the relevant tribunal in the ACT to make a determination but am I on a ‘hiding to nowhere…’ I appreciate that it may be better to cut my losses, but it has become a matter of principle………
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Your assessment seems reasonable to me. On the face of it, a defect of the common property and delay in repairing it caused damage to your property. I suggest pushing to be given reasons why an insurance claim was rejected. If it was to do with the OC’s delay taking action, that is good for you.
If that does not shed any light, I think an ACAT application could be a reasonable course of action. The Tribunal is set up to be user-friendly and inexpensive. Parties are generally self-represented and costs are generally not awarded. An initial ‘directions hearing’ will be a mediated conversation between parties to hear what each side’s position is. At that point the Tribunal will try to steer the parties to a mutually agreed settlement or might send you away to discuss further or gather further information. The Tribunal member will not tell you what you should do and will avoid expressing an opinion on whether any proposal is reasonable or not. If you do agree to some settlement, that will be made ‘a consent order’ and both parties are then obliged to stick with and carry out whatever was agreed. If you can’t agree, then the matter may be listed for a hearing.
Your application should be clear about what you want the orders to be an include evidence such as a quote for the cost of repairs and a time-line of dates such as when the leak was first noticed, when you first notified the OC, what responses you got etc.
It would be worth reading through previous ACAT Unit Titles decisions and finding one that is similar to your circumstances. Then you can refer to the previous reasoning. Look here http://web.ocnact.org.au/decisions-by-acat-test and here https://www.acat.act.gov.au
A hearing will be more formal and at the end you will be given orders according to the views of the Tribunal member, which might not please either party.
Having been to the Tribunal several times now representing our OC, it is not as scary as it first seemed and the Tribunal members have generally been impressively patient and fair.
Rhm, know your despair!
Don’t know how different the Strata management schemes ACT is to the NSW one but quite recently decisions have been appealed and overturned in NSW which has worked out in favour of the Owner against the Owner’s Corp. The case is Shum V. Owners Corp ( can’t remember Sp number ). There is an article in a Bannermans Lawyers website which mentions proceeding with the Tort of Nuisance against the OC. Cordata Partners had some encouraging articles too.
Generally you have to establish negligence to be successful in a claim against an OC/BC in your circumstances.
As Bunyip1 states, NSW has had some changes in this area. Delays in getting a common property defect repaired can result in a successful claim against the OC by a lot owner for damages. Other states are not as clear.
Compulsory strata building insurance will cover a lot’s fixtures and fittings, it usually does not cover a lot’s contents of which a floating floor is considered to be.
I’ve personally been in your situation a few times including in the ACT. I think you’d need to establish that the OC wasn”t doing enough or had waited too long to get the repair done.
Your choice is to claim on your contents insurance or have a legal fight with the OC. Of course, as your lot contents were affected you could try a direct claim against the builder yourself – floating floors are not common property and the builder was probably the cause of the defect.
Good Discussions All,
Hope my suggestions are of help RHM? I’m in a situation where myself and 3 other owners of our building ( the whole top floor ) have found ourselves without tenants and rent due to remedial works ordered by the OC, which has left the properties uninhabitable. We will probably be without tenants for at least 2 months or more. I know Strata’s Insurance covers against loss when common property defects, fire, storm, insured events cause loss to a tenant or owner but what happens if remedial building works organised by the OC causes the loss.
These works are not part of Building’s defects or warranty periods, these have already lapsed. If you read my other post ” an acceptable level of conflict of interest ” you will get the bigger picture of what myself and some other owners are dealing with. What do you think? would we have a valid claim for compensation or this may involve a Tort of Nuisance?
I’m not a lawyer so take this with a pinch of salt (or call someone who is) but if work is being done to the building that is to the benefit of all the owners then it is clearly unfair that only a minority of owners should suffer the financial penalty of loss of rent.
I agree with Sir Humphrey (Post #2) and the loss of rent should be borne by everyone equally (or in proportion to their unit entitlements) so you and your fellow top-floor owners should be looking at forcing the OC as a whole to share the burden.
If the powers that be choose not to offer a reasonable settlement, talk to a specialist strata lawyer.
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.
Thanks Jimmy T for your reply,
Your Flat Chat Forum is great, I’m new to it but take comfort I’m not alone and stressing, there are others out there just as frustrated as I am with Strata living issues.
I have already been in touch with Fair Trading NSW and some of my concerns are actually with the SSMA 2015. They have assigned a customer service officer to me and have also sent my concerns to their policy specialists to advise on it (although this team hasn’t responded yet ).
Maybe there needs to be a greater discussion amongst the Public and Government into the Strata Schemes management. All I can say is email The Hon. Matt Kean directly and he’ll ( or staff ) will respond in about 9-10 days.
Maybe with enough questions, emails and complaints they will take our concerns with greater urgency. So I say Post it on Flat Chat but also email your issues to Matt Kean the minister of Innovation and better regulation.
Contacting Fair Trading is fine but they won’t give direct advice on specific problems – they’ll just refer you to the legislation and leave you to work it out for yourself … even when your complaint is that the legislation either isn’t working or isn’t being observed.
Also, you will often get a politically expedient response. For instance, Fair Trading has been telling people that by-laws that block short-term holiday lets (like Airbnb) are invalid.
This is patently flawed information, according to every strata lawyer I have ever spoken to, but it suits the department to say otherwise as they cozy up to Airbnb for their own political reasons.
So don’t take Fair Trading’s response as the be-all and end-all in anything.
By the way, I would say the same about this website, but at least we TRY to get the right information out there.
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.
Cheers Jimmy T,
Good Advice, A good Strata Lawyer may be the next step but not until after the AGM to be held later this week ( which may be a doozy ). An Owner who we have never met before has made his presence known and is so peed off with losing his tenant and the current state of affairs will be in attendance.
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