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Last 3 months the OC investigated my main bedroom to assess that their is concrete cancer but the Strata Insurer won’t pay because it is a defect, hence, is excluded from the policy.
The OC has costed the remediation but has not accounted for damages to furniture, fittings and temporary accommodation, which I understand would be covered if the Strata Insurer covered the remediation.
My personal contents insurer also won’t cover my contents or temporary accommodation because it is a defect, hence, it falls on the OC’s responsibility.
The OC will only pay for the remediation as per the engineers report (which doesn’t include any damages and temporary accomodation costs).
The Strata Manager has sent me a request to advise that I need to provide a date ASAP to move out for 12 weeks and have also advised it could be longer if when they begin the works they find a bigger problem.
NCAT can’t make a ruling on this as it is outside the Act but the OC are seeking mediation/adjudication to “evict” me from my home to carry out the works.
I am a pensioner and I can’t afford to move out let alone face the costs of replacing all the furniture and fittings, which the engineers advised need to be damaged in the process (mainly built-ins, carpets, paint and removal/re-installation of blinds).
What is the OC’s vs my legal obligation and where to next? I can’t afford the costs of going to court.
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I am not in NSW but it surprises me that the NCAT can’t rule on this.
Perhaps armed with some advice from this forum on the specifics of NSW legislation you could go to the tribunal unrepresented.
I would expect all you have mentioned is an OC expense. If their insurance doesn’t cover it then they would have to have a special levy or borrow to cover it.
My expectations are based on the ACT legislation and the ACT tribunal, but perhaps you can check or others can advise if you would have equivalent things:
The ACT Unit Titles (Management) Act has a section on dispute resolution and it includes sections on who can take what other parties to the tribunal for an order over what sorts of matters.
Even if the OC has not done anything unreasonable to date, if a defect in the common property appears, and it is too late to get the original builder to fix it, then the OC is lumped with making the repair.
Following is a quote from a Teys Lawyers fact sheet from a few years ago:
“The strata owners have a strict liability to repair and maintain common property. Problems emerge with one aspect of the common property, for example, rusting balustrades on a balcony and water penetration into the living area of a unit as a result of a defect in a waterproof membrane. The owner of the unit alleges both problems are for the strata scheme as a whole because the water membrane is common property. Years pass whilst the parties dispute responsibility. The unit owner moves out and sues the strata scheme for loss of rent and the loss in value of the unit because of the failure to repair and maintain common property.
These are the facts of Seiwa Proprietary Limited v The Owners Strata Plan 35042 (2006) NSWSC 1157. The New South Wales court of appeal found in favour of Seiwa, upholding a strict duty on the strata scheme in question to maintain and keep the common property in good repair. A breech of this statutory duty gave rise to a private right for the unit owner to be awarded damages of $150,000 for the loss of use of the unit. Further damages of up to $250,000 would follow in the court’s opinion if repairs were not done within three months. The strata scheme also had to pay the unit owner’s legal costs.”Quoting that might focus the minds of the EC. I wonder whether some imaginative solution is possible? Perhaps there is someone single in the building with a large unit who would be happy to have a tenant for a while at a low cost to the OC?
Firstly the NCAT Tribunal can “award damages”. They cannot do it directly but they can do it indirectly. Let me explain.
Repair of concrete cancer in your lot comes under s.65 of the Act. Section 65(6) reads as follows:
(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
Section 138(3)(d) of the Act prevents NCAT from awarding damages. NCAT can however issue an order that the owners corporation comply with section 65(6) of the Act. That has the same effect.
There is no power under the Act for the owners corporation to evict you. Not even NCAT can make such an order. The owners corporation cannot enter your lot to carry out repairs without your permission. If you refuse access and it is not an emergency they have to seek an order from NCAT requiring you to give them access.
The owners corporation also cannot commence NCAT action until the matter has gone to mediation.
The Supreme Court has ruled that an owners corporation has a duty to be proactive in relation to maintenance of common property and to inspect the common property regularly. The Supreme Court has also ruled that the moment something falls into disrepair the owners corporation is in breach of the law.
If the owners corporation had inspected all lots regularly looking for concrete cancer the repairs in your lot would have been detected early and would have taken a day or two to fix. Claiming that it is going to take 12 weeks is ridiculous. If the repair company knows its job then it should only take one week at the most even for a large repair. If it will take 12 weeks then the repair must be huge and the owners corporation is in clear breach of its duty.
Under the new Act, which comes into effect later this year, you have the legislated right to sue the owners corporation for any loss you suffer as a result of their failure to promptly maintain common property (new s.106(5)), and it is RETROSPECTIVE. The restriction on NCAT not awarding damages also gets removed.
So here is what you should do. Write to the strata manager and state the following:
1. You claimed that the owners corporation is not liable for damage to my property when repairing the concrete cancer. That is not correct. Under s.65(6) of the Act you are liable for any damage caused to my property as a result of carrying out work on common property.
2. The Supreme Court has ruled that the owners corporation has a duty to be proactive in relation to maintenance of common property and to inspect the common property regularly for faults. It has also ruled that the moment something falls into disrepair the owners corporation is in breach of s.62 of the Act.
3. The owners corporation is therefore in breach of s.62 of the Act at present for failing to check for and detect the concrete cancer in my lot the moment it first began. If it had done so the repair would have taken a few days only, not 12 weeks.
4. Under s.106(5) of the new Strata Act, which is retrospective, I have the right to seek damages for any loss I suffer as a result of any breach of s.106 the Act by the Owners Corporation. Unlike under the old Act NCAT will have the power to award damages.
5. The cost of alternative accommodation is a loss I will suffer due to the breach of the Act by the owners corporation. If the owners corporation does not compensate me for that loss voluntarily I will seek an order against it under s.106(5) of the new Act as soon as it comes into effect.
5. There is no power under the Act for you to evict me and NCAT does not have the power to do so either. If you expect me to move out then you will need to obtain a court order. That will almost certainly delay the matter until after the new Act comes in.
6. I want the repairs carried out as soon as possible but as it is a repair to common property I will not accept and cannot afford to bear a greater share of the cost than other owners.
7. To avoid the cost of legal action and the unnecessary delay to the repairs please confirm in writing that you will comply with s.65(6) of the Act by compensating me for any damage to my personal property. Please also confirm in writing that the owners corporation will meet all incidental costs associated with the repair to common property, which includes the reasonable cost of alternative accommodation for me while the repairs are carried out. As soon as that is confirmed in writing I will be happy for the repairs to begin.
If the owners corporation refuses the above, let them ask for mediation. Attend mediation and present the above to the mediator. If mediation fails it will then go to a strata adjudicator. They make a decision on the paperwork. There is no hearing. So you will have ample time to prepare your case in writing. I am happy to assist you in that regard. They can order that you give access to your lot but they do not have the power to order you to vacate, especially if you tell them you cannot afford to pay for rent elsewhere.
I agree with most of pmo’s comments, although unless the Owners Corporation has X-ray vision I don’t agree that any failure of it to detect concrete cancer in its common property, in this case with the floor of George B’s lot, could be construed as it being in breach of Sect.62 of the Act, or that a “window” within a yet to be gaxetted Act wherein owners may sue Owners Corporations who have breached their responsibility to property maintain common property could be interpreted as a retrospective provision.
I also wonder what George B’s approach to alternate accommodation would be if, in these same circumstances, his concrete cancer affected residence was a stand-alone property, and if he would consider that those same remedial works commissioned by him would render those premises ‘”uninhabitable” (under the defining criteria adopted by insurers) or whether he would make an effort to work-around the issue by moving items of his contents and by perhaps moving into another bedroom on a tempory basis.
I’m not suggesting that George B should meeky comply with his Strata Manager’s demand that he vacate his residence, but I wonder to what extent his Owners Corporation and/or its Executive Committe is aware of the detail of that, and to what extent the Strata Manager is acting autonomously.
So before adopting pmo’s suggested shock-and-awe approach I’d suggest that, via his Executive Committee Members and in advance of an application for mediation, George B formally makes his Owners Corporation aware of the situation, offers to make access reasonably available to its contractors and to allow them to move his personal property, with the trade-off that it pays to repair/replace anything that’s consequentialy damaged, leaves his residence as clean as is practicable at the end of each day, and that the duration of the remedial works be contractually reduced.
It reason doesn’t prevail, then by all means resort to a toned-down version of the shock-and-awe approach by perhaps deleting points 2, 3, 4, and 7 of pmo’s suggested correspondence.
I was simply quoting what the Supreme Court has ruled. The moment something falls into disrepair the Act has been breached. It matters not how hard it may have been to detect.
Having said that, testing for concrete cancer is a trivial exercise that even a lay person can carry out. If it has grown to such an extent that it will take 12 weeks to fix then it would have been detectable for the past 5 years at least.
George indicated that the strata manager had told him he had to move out, not the other way around, so the analogy with a private repair in a standalone property is not relevant.
Shock and awe tactics are often necessary, especially when a strata manager has lied to the owner by claiming that the owners corporation is not liable for what s.65(6) of the Act says they are liable for and has implied that it has the power to force him to move out when it has no such power under the Act.
If it is a one-bedroom unit then it would indeed become uninhabitable if the bedroom floor has to be demolished. Even if it has more bedrooms concrete cancer repairs fill the lot with fine dust that is a health risk. Keeping the doors shut achieves nothing. The workers have to come in and out and the dust blows after them. Been there, done that.
An owner in our building reported concrete spalling in his lot in March 2015. He could not re-rent it with the repairs pending. Because he did not use shock and awe tactics the vindictive committee took 11 months to complete the repairs, depriving him of the use of his lot for that time and ultimately costing the building $94,000 for repairs and damages for a job that should have cost under $20,000.
@GeorgeB said:
Anyone out there? A response would be appreciated …I note in your previous post you asked for a Supreme Court judge to comment. I guess we don’t have too many of them active on the website.
But we do have two sponsors – one a strata lawyer and the other an expert on concrete cancer. How about giving either or both of them a call?
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.
@GeorgeB said:
With no disrespect to any Strata Lawyer, when I asked the member why he can’t make a ruling on this he told me that one doesn’t exist and from what I gather they are avoiding making one.More to the point, they can’t make a ruling becasue at that level an NCAT ruling carries no weight, for instance, as a precedent.
Come on Jimmy, ok you may not know of a Supreme Court judge but with such a platform surely you can do more – why don’t you run a story on this in the AFR at least putting pressure on NCAT to act.
I might run a piece if a) it applied to a lot of people and b) if i understood what the problem was. Have you tried the Ombudsman?
May I suggest you approach the relevant Ministers and Premier and maybe flat-chat could launch on behalf of OC’s bullied by Strata Committees a #wetoo social media campaign.
You can suggest it, but I ain’t gonna do it. Flat Chat has been sticking up for bullied strata owners and tenants for the past 15 years and 22,000 posts. I stand by our record.
Seriously, I know you feel aggrieved and I sense that you have been screwed somewhere along the line but I genuinely have no idea what the problem is. If you could explain it in simple terms rather than making demands, we might be able to help.
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.
@GeorgeB said:
The OC had a lawyer and to cut a long story short we agreed on a consent order where they would pay my reasonable expenses. So I thought. As I was not a lawyer I confirmed with the Member that before I sign the consent order am I correct to assume that if my claim is reasonable they would pay. He said yes so I signed the consent order.
No sooner am I back home all the owners receive a letter from the lawyer advising that they don’t owe me anything but just to consider my claim.
…………….Since then the Strata Committee and the Strata Manager have tried to intimidate and bully me to leave based on the consent order, which I have come to understand is now no longer in play or as the tribunal says is not substantive.
The OC are now filing cost applications against me. It’s getting too much to handle.
I hesitate to become involved in this, but here goes….
On what basis do you say the consent order is no longer substantive? Because you say you were misled as to its content and effect and your agreement to it should therefore not stand?
It sounds like a very unconscionable way for a lawyer to behave. Without wishing to muddy the waters too much, perhaps a word to the local Legal Practice Board might distract them from writing any more threatening letters?
On what basis are they seeking a costs order?
Have you made it plain, in writing, to the Executive Committee and the Strata Manager that you are more than prepared to move out as soon as you have an undertaking from the Body Corporate / Owners’ Corporation to meet your reasonable costs of relocating and refurbishing?
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