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PLEASE ADVISE
My circumstance is a failed roof system causing water damage to the unit. “Flat Chat” once stated that damage to private property could be claimed because the EC/OC and/or strata manager had failed to maintain/repair common property (roof system). Fair Trading has recently replied that a failure of common property (roof system) due to poor maintenance or design does not extend to the repair of (water) damage to private property.MY QUERY TO FAIR TRADING – “The cost to repair the rainwater damage to the apartment, given the failure to maintain/repair common property (roof system), should be covered either by the EC/OC sinking fund, OC Property Insurance or Strata Manager’s Corporate Liability Insurance. The (inspected/quoted) repair costs include a warped/damaged cornice area, water marked/streaked paintwork of ceiling and wall areas, and cracked ceiling vermiculite. Initially, I was told by the Strata Management that private property is not covered. However, given the extensive failure of the roof system and inundation of rainwater into the apartment (requiring SES to attend/assist) there is a responsibility that either the strata management &/or OC have failed to maintain/repair common property (roof system)”
FAIR TRADING RESPONSE:
“With regards to the issues that you have raised about the responsibility for repairs and maintenance for strata schemes, the owners corporation must repair common property and owners must repair anything within their lot. However, it is not always clear what is common property or what is the individual lot.
The basic rule is that everything inside the airspace of the unit, including all internal walls, fixtures, carpet and paint on the walls is usually the lot and therefore the responsibility of the lot owner.
Everything outside that airspace including walls, windows, doors, and tiles fixed to the floor and boundary walls is usually common property and therefore the responsibility of the owners corporation.
The owners corporation must repair common property and an owner must repair their lot’s it does not make a difference how the damage occurred (whether accidental or negligent).”
END OF MESSAGE FROM FAIR TRADING
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I would really like to hear from someone in the CTTT if this is the case. It makes no sense to me and cuts across all the priciples of collective responsibility wrapped up in the strata act. Further investigation required.
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.
OK, this is as much as I have been able to glean. As far as Fair Trading and Strata Community Australia (the strata managers) are concerned, the OC has to repair damage done in effecting repairs to common property but doesn’t have to pay for repairs required by the original failure of common property. That’s their policy and that’s why it’s part of the “who’s responsible” document that they and others in the industry jointly formulated.
However, talking to lawyers, it seems there are other principles involved here, such as common law. If you think you can prove that the damage to your lot was the result of Owners Corp negligence, you can ask them to pay. If they refuse, and you think it’s worth all the hassle, you can go go to your District Court and make a claim there.
And this is where we may have been getting confused – assuming that Fair Trading, the CTTT and strata managers are the final arbiters on this. They’re not (see Peter C’s posting above). If you aren’t happy with the response, from your strata manager, there’s clearly little point in taking it to Fair Trading because they are in agreement on this. However there’s always the District Court and the Supreme Court beyond that (if the cost of the repairs merit it).
It feels like this policy is designed to weed out opportunistic claims against the Owners Corp, such as getting your ceiling repainted because of a tiny patch of damp in the corner. But it’s not the be-all and end-all of the law – it’s just a guideline.
Is it right, fair or logical? That is a whole other issue. However, even if your executive committee, strata manager,Fair Trading and the CTTT will probably bounce your claim for repairs to damage caused by the initial flaw, at least there are other avenues if you feel strongly enough that you’ve been hard done by.
The best answer may be just to get a decent home and contents insurance policy and let them deal with it.
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.
We had a situation in which a defect of the common property was responsible for damage to private property. The EC decided to repair the damage as a matter of urgency because it was a safety issue also. Other owners challenged our decision and we took legal advice. The advice was unequivocal. The OC was liable for damage caused within the unit area.
JimmyT while you recommend “The best answer may be just to get a decent home and contents insurance policy and let them deal with it ” , whenever I have tried with insurance companies, if I am in a strata, they will only allow me to insure contents . In fact, I have tried to insure other attached items like kitchen cabinets, and I was not able to insure them, as the strata’s insurance is apparently meant to provide for this. Therefore, I do not see how an owner’s insurance would cover item like damaged cornices. Meanwhile if the cornice had fallen down and damaged the couch, then couch would be covered. Living in a strata I find these issues to be very confusing, sigh.
Let me explain the insurance issue and who’s responsible for what in the same way that I’ve used over and over again with my Proprietors:
If you imagine that your Strata Unit is an empty shoe box, then the care, maintenance, and repair of that box and the insurance coverage for it is the responsibility of the Owners Corporation.
If you place internal dividers inside your shoe box so as to make compartments, and then place your loose personal items inside, then the care, maintenance, repair, and replacement of those items and the insurance coverage for them is your responsibility as the Owner.
If you then place some other items inside the compartments and glue them to the sides of the box, to the underside of the box’s lid, or to the base of the box, then the care, maintenance, repair, and routine replacement of those items is also your responsibility BUT if they’re damaged by an “event” like if something glued to the base of the box suddenly became unstuck, fell over, and broke then the Owner’s Corporation’s Insurance will cover repairs and/or the replacement of that item and any repairs to the base of the box.
If that’s clear, then consider:
- The shoe box as the perimeter walls, the base as the floor, and the lid as the ceiling of your Unit
- The internal dividers as the internal walls, and the compartments as the rooms within your Unit
- The loose personal items are your furnishings (contents)
- The glued items are things like the toilet pan, shower base and screen, sink/basin, wash tub, kitchen cupboards, cook tops, wall ovens, built-in wardrobes, and ceiling light fittings.
As with all simplified analogies such as this, there are exceptions – but they’re few.
I hope this works for maxd12, nell, and others.
Whale – a fantastic analogy worthy of a strata guru! Your explanation was explained as such by my insurers when I moved into strata – and is as clear as glass to me – thanks!
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