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Has anyone had any experience with ISTM’s (or Strata Community Australia as they are now called) “Who is responsible” document?
https://nsw.stratacommunity.org.au/resources/638/Who%20is%20Responsible.pdf
My strata managers are using it as a bible when refusing to repaint my damaged bathroom ceiling (see my earlier post for all the details) citing this section:
If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property. However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent. E.g.:
2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.
I have asked strata to clarify where this comes from, what legislation, etc. They told me to contact ISTM but ISTM are an industry group for Strata Managers and so won’t deal with me as I’m not one & so not a member.
Strata are now refusing to answer any of the queries I’ve made trying to understand the situation saying that as I’m in dispute with them I will need to get legal advice. I haven’t at any point made any legal or even mediation moves. I just want to know why I should be liable to pay for repairs to damage I had no control over (and that their delays made much worse). I have asked to see the plumber’s report, for the contact details of the unit above and what the management agreement says in relation to urgent repairs (they claim they have to get EC approval and that is why it took so long).
If anyone can offer any kind of legislation-based advice I would be really, really grateful. I had the bathroom repainted only a few months ago and I can’t afford to do it again or to claim on insurance and lose my no claim bonus. I worry also that if this really is the law then what if it were to happen again, would I really keep having to come up with the money to repaint?
Thanks.
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The ‘who’s responsible?’ document is a guideline only UNLESS it has been adopted as a rider to your by-laws (and that would require a 75 percent vote at a general meeting). It is not the law and these guys should know that. Don’t waste any more time – call 13 32 20 and download a mediation form then chase this through the CTTT. You are right, they are wrong; someone somewhere will explain to them how and why.
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.
This issue has been raised many times in the forum and I am surprised that many owners and occupant's have the view that the OC's liability is unlimited even if damage caused to lot owner's or occupant's property has not been due to negligence on the part of the the OC but has been an unfortunate accident. In Anajr's case I have assumed that the burst water pipe occurred without notice and did not result from a lack of maintenance on the part of the OC.
A question I would ask Anajr is that suppose the burst water pipe destroyed his Bang & Olfsen $25,000 sound system or $15,000 entertainment setup (or both) would he expect the other owners to pay for replacement when the burst pipe was an unforeseen accident.
That's why all owners should insure contents, which includes the painted surfaces and carpeted areas in the lot.
I would agree however that if the OC knew there was a problem with the water supply system AND did nothing to address the problem and the water supply system ruptured then that is another matter entirely. That may be construed as negligence by the OC and I would suggest Anajr's insurer in these circumstances could or would pursue the OC for recompense. if he isn't insured or did not wish to claim on his insurance then he may well have a case for recovery of costs provided he could prove the OC was negligent.
Pretty straight forward and it puts the onus on:
1. The OC to maintain the CP and react to problems as soon as they come to its notice and
2. All owners and occupants to take out the necessary insurance to cover the lot owner's or occupant's property.
The current inquiry into Strata Insurance is a good reference for issues such as Anajr's.
Anajr said:
Has anyone had any experience with ISTM's (or Strata Community Australia as they are now called) “Who is responsible” document?
https://nsw.stratacommunity.org.au/resources/638/Who%20is%20Responsible.pdf
My strata managers are using it as a bible when refusing to repaint my damaged bathroom ceiling (see my earlier post for all the details) citing this section:
Just a general note here to all users – please don't start a new thread every time you come back to a topic. There are dozens of postings coming in every day and it's a lot harder for other readers to find your original posting than it is for you to do so. Most won't bother to go looking for it so you are wasting your time referring back to 'previous postings' on another thread. I put the cross-referenced link in here but, really, I have better things to do with my time. -JT
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.
If people (including me) find any Legislative or Regulatory provisions to be onerous or administratively / operationally incorrect, then the solution is to advise the Regulators and wait for the next Review to have a say – not to make expedient interpretations, even if they do seem sensible.
In the meantime the operation of the NSW Strata Schemes Management Act (currently under review) requires the Owners Corporation (O/C) to make-good any private property that's been damaged to due a Common Property fault.
As onerous as that appears in Anajr's circumstances, where the O/C was not negligent in any way, an Application for Mediation will, as Jimmy T advised, “explain to them (the S/M) how and why” that liability exists.
Don't do the repairs yourself Anajr, but instead advise your S/M that you're applying for Mediation, then do that, and wait for the process to run its course.
I think the strata managers are misreading the Memorandum because what they are saying is contradictory.
It states very clearly that water pipes in the ceiling, floor or walls are the responsibility of the OC.
2.17 Plumbing (includes bathroom, kitchen and laundry). OC responsibility.
a. Blocked floor drain or sewer.
b. Burst pipe general.
c. Burst pipe outside the lot.
d. Damage to unit after water leak when OC effecting a repair.By the way, “outside the lot” also means inside the original ceiling.
2.3 Ceilings or Roof. OC responsibility.
a. Ceiling cornices.
b. False ceilings installed on the registration of the strata plan and were there to hide communal piping, ducting or wiring etc.And yet you seem to have this bizarre ruling that they aren’t liable for paintwork caused by failure of Common Property IN Common property … but they are responsible for fixing the paintwork damaged in effecting the repair. Whether that’t right or fair is irrelevant – it’s contradictory.
But is that in fact the ruling? Read the actual wording again:
2.18 Plumbing (includes bathroom, kitchen and laundry). Owners responsibility.
a. Burst pipe within the lot.
b. Cabinet and/or mirror.
c. Cracked bath or hand basin.
d. Dripping ʺSʺ bend under sink.
e. Leaking pipes under sink.
f. Plug and waste in bath, sinks and tubs.
g. Shower Screen repairs.
h. Toilet bowl or cistern.
i. Water leaking from a bath or shower and not affecting another lot.
j. Water leaking from shower, bath or hand basin taps.
k. Water leaking through tiles and not affecting another lot.
l. Damage to a lot caused by any water leak mentioned above, as a result of the problem itself.Surely the phrase “any leak mentioned above” refers to items a to k in this section … not the section above. So there is no contradiction – the strata managers are wrong and the OC is responsible of the damage to the paintwork caused by common property piping.
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.
Last year in our plan a lot owner's internal flexible water supply pipe underneath the sink in his bathroom burst while he was away on holidays. The damage caused was considerable, not only to the lot owner's property, but also the common property.
Anajr said :
“I don't know whose fault the leak is because the OC won't answer my questions about it but I know it wasn't mine so don't see why I should be out of pocket for it. “
If Anajr's argument can be sustained then I am sure Anajr would agree our OC should be able to recover the many thousands of dollars damage to it's property from the lot owner because the leak in our case wasn't the OC's fault.
Of course we did not do that but claimed on our insurance and the OC paid the excess. But if we had thought the damage caused was due to the lot owner's negligence or say a malicious act then we would have advised our insurer who in turn would have followed up.
May I suggest that would be the best course of action for Anajr – claim on your insurance, give your insurer the full facts and let then do the follow up which they would do if you could show them that OC failed to maintain the common property.
Notwithstanding I think lot owner's should be very careful about what they wish for. It is very dangerous, in my opinion, to take the view that if my property is damaged and it wasn't my fault then why should I be out of pocket. Some day Anajr's internal water supply pipe might burst or a fire could start accidentially in his kitchen or whatever. I suggest Anajr would be very unhappy if his neighbour (or the OC) adopted the view it wasn't my fault and subsequently came running after him for money to effect repairs.
Easty
This illustrates very neatly the difference between what we can do and what we should do.
I think your EC and insurers were generous (ok, make that community spirited) to pick up the tab for someone's misfortune.
But I'm sure the reality is they could have chased the poor sod for the full amount, regardless of whether he was insured or not (my thinking is that as soon as that pipe leaves the wall, it's the owners responsibility).
But like I said, in the cut and thrust of strata living, we should be able to do these things … just as we should allow ourselves to fix minor problems that aren't strictly speaking our responsibility but are just easier and less hassle to get on with and get done.
The one thing that irks me, though, is when professionals who should know better start quoting non-existent laws to avoid their responsibilities. Who are they actually helping when it might be better to say “Mate, do us a favour and deal with it yourself and we'll put you down for a few brownie points to your credit.”
We can but dream.
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.
Ther are a lot of things in this and Jimmy is correct in the use of the “who's responsible” document. It is very useful as a guide.
Your issue is more complex and deals with the law of nuisance overlayed with responsiblities of the OC in maintaining its property and then finally insurance issues.
The basics are that the OC must maintain its property. If it does not maintain its property and it casues damage then any resultant damage may also be the responsibility of the OC. This is where insurers step in some times.
If the damage is an 'insurable event” (like a burst pipe) then insurers will step in and pay for the repairs (including the resultant damage). Some insurers will indemnify 100% (including painting etc) others not. That is a contractural issue between the OC and its insurer.
The obligation the OC has to you is different.
Hope this helps. What you need to do is discuss it with hte executive committee and go from there.
I also think we should also refer to:
“STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 92
Insurance claim where owner at fault
92 Insurance claim where owner at fault
If an insurer of an owners corporation accepts a claim by the
owners corporation based on an act or omission by an owner of a lot, the insurer has no right of subrogation in relation to the owner based on that act or omission unless it is proved that the act or omission was wilful”.easty said:
I also think we should also refer to:
“STRATA SCHEMES MANAGEMENT ACT 1996 – SECT 92
Insurance claim where owner at fault
92 Insurance claim where owner at fault
If an insurer of an owners corporation accepts a claim by the
owners corporation based on an act or omission by an owner of a lot, the insurer has no right of subrogation in relation to the owner based on that act or omission unless it is proved that the act or omission was wilful”.What is subrogation? This definition is from the FindLaw website:
Simply stated, the right of subrogation is the right to pursue someone else’s claim. If you are subrogated to someone’s claim, it sounds as though you are somehow subordinated to it — but that’s not what it means. It means that you may pursue it as though it were your own. It can arise by the express agreement of the parties, or automatically by operation of law.
Let’s look at a few examples.
- Insurance. Suppose you own a building which burns down due to the negligence of a third party. Normally you could sue the negligent third party for causing your building to burn down. If your fire insurance company pays off your claim, however, the insurance company is then subrogated to your claim against the negligent third party. This means your claim against the negligent third party is treated as having been assigned to the insurance company, which may sue him to recover the amount it paid you on account of the fire loss.
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 case backs up what we say elsewhere – Fair Trading might not support a claim for damage caused by failed common property but common law and this legal precedent clearly does. Thanks!
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.
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