ACT lot owners are wondering about the responsibility of the Owners Corporation regarding accessing common property.
Table of Contents:
- QUESTION: Our OC is undertaking work to balconies. Some balconies have air conditioning units installed. Who is responsible for the costs of removing and reinstalling the air conditioner to enable the balcony works?
- QUESTION: In a strata plan of 6 buildings, 4 of which have a lift, are all strata unit owners liable for the cost of replacing lifts as required?
- QUESTION: What are the compliance obligations and the duty of care for a large mixed-use scheme located in the ACT?
- QUESTION: I am aware that I am responsible for a leaking water pipe solely servicing my lot. Does this change if the leaking pipe is located in the common property of the building?
- QUESTION: Our block of units has constant issues with the delivery of our hot water. Although we’ve reported the issue, the strata manager will not take any action. What can we do?
- QUESTION: We have a pool in our Strata Complex in ACT. What are the legal liabilities of the Owners Corporation if there is an accident or drowning?
- QUESTION: If an OC does not have a specific rule preventing residents or non-residents from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
Question: Our OC is undertaking work to balconies. Some balconies have air conditioning units installed. Who is responsible for the costs of removing and reinstalling the air conditioner to enable the balcony works?
Our owners corporation is undertaking tiling and waterproofing work to balconies. Water has been running through cracks in balconies affecting the utility of the downstair neighbour’s courtyards. This has raised concerns about long-term structural issues it may cause.
Some balconies have air conditioning units installed. These are the responsibility of owners to install and maintain. The AC units need to be removed and reinstalled to enable the waterproofing and tiling works to occur.
Who is responsible for the costs of removing and reinstalling the air conditioner to enable the balcony works to take place? Would it be the owners, the owners corporation, or a shared arrangement?
Answer: If the owners corporation is required to complete works to a balcony to meet its obligation, it would be appropriate for the owners corporation to arrange and cover the cost of the removing and reinstatement of the air conditioners.
Under Section 24 (4) of the Unit Titles (Management) Act 2011, the owners corporation is responsible for a defined part of a building with class A units. This includes any part of the balcony on the building. The maintenance of the air conditioner, if servicing that unit only, would be the owners responsibility.
However, if the owners corporation is required to complete works to a balcony to meet its obligation, it would be appropriate for the owners corporation to arrange and cover the cost of the removing and reinstatement of the air conditioners located on the balconies of the units.
I assume the building was not originally built with air conditioners, so the installation of air conditioners would need to be approved by the owners corporation. It would be best to check on the approval of the air conditioners, as the approval should state the maintenance responsibilities for the air conditioners, and who covers the cost should the system need to be removed for this purpose.
Steve Wiebe
Bridge Strata
E: steve@bridgestrata.com.au
P: 02 6109 7700
This post appears in Strata News #638.
Question: In a strata plan of 6 buildings, 4 of which have a lift, are all strata unit owners liable for the cost of replacing lifts as required?
Answer: The Owners Corporation as a whole must maintain the defined parts of any building containing class A units. This would include lifts as part of the common property.
This seems to relate to a large complex if there are 6 buildings. This would be a Class A complex, meaning a multi storey building.
Section 24 of the Unit Titles (Management) Act notes that the Owners Corporation as a whole must maintain (d) the defined parts of any building containing class A units. This would include lifts as part of the common property. Unless it was a lift servicing one unit only.
Division 3.3 Maintenance and other services
24 Maintenance obligations
- An owners corporation for a units plan must maintain the following:
- for a staged development—the common property included in a completed stage of the development;
- for a development that is not a staged development—the common property;
- other property that it holds;
- the defined parts of any building containing class A units (whether or not the defined parts are common property);
Note: This does not include painting unless the painting is required because of other maintenance (see s 26 (1)).
Steve Wiebe
Bridge Strata
E: steve@bridgestrata.com.au
P: 02 6109 7700
This post appears in Strata News #628.
Question: What are the compliance obligations and the duty of care for a large mixed-use scheme located in the ACT?
Do corporate bodies in the ACT have obligations under the Work Health and Safety Act 2011? Our building is a 300+ apartment high-rise facility with commercial use occupying the ground level. There is a Supermarket, Gym, coffee shop etc.
If a corporate body engaged a contractor to undertake repairs/maintenance etc do they have a duty of care? Does SafeWork Australia have any information available on this?
From what I’ve read, unless the corporate body (CB) directly employs a ‘worker’ the CB has no obligations under the WHS Act unless there are commercial operations within the complex and of course, there are in this instance.
Answer: Under common law, an Owners Corporation has a duty of care and must take reasonable action to ensure that anyone, including owners, service providers, tenants, visitors and even trespassers who come onto the common property, are not injured.
What are the compliance obligations and the duty of care for a large mixed-use scheme located in the ACT?
There are two principal considerations:
- Under common law, an Owners Corporation has a duty of care and must take reasonable action to ensure that anyone, including owners, service providers, tenants, visitors and even trespassers who come onto the common property, are not injured. (If you would like to understand the legal requirement for Duty of care, please see Hackshaw v Shaw [1984] 155 CLR 614).
- Under the Work Health and Safety Act 2011 (ACT), an Owners Corporation must consider their duties in regard to the health and safety of any workers engaged on their common property.
Accidents can occur anywhere at anytime
When an accident occurs, there are two questions that need to be answered;
- “Did it occur in a workplace or by a worker onsite doing routine maintenance/repairs (with or without Owners Corporation knowledge)?”
- And “Did the Owners Corporation do everything reasonable to mitigate the risk of it occurring?”
In the event of an accident, the finger of blame will start to move looking for a party to take responsibility. Owners Corporations need to take steps to ensure that when the finger lands on them, they can show they met compliance obligations under the Work Health and Safety Act 2011 (ACT) and also ensure all reasonable measures were met under their duty of care obligations.
The incidence of personal injury claims against owners corporations has increased significantly in the last few years, with the average payout now being $50,000.
We know this because from time to time throughout any given year if we have at some stage completed a Safety report on a scheme where an accident has occurred, then we get caught in a lawsuit action with the Owners Corporation and their insurer. Plus any other party that the plaintiff involves in the legal proceedings. Unfortunately, the no win/no fee lawyer personal injury claims is a growing industry in this country and Owners Corporations are prime candidates. Why? Because they have to have insurance and they are seen as a faceless entity such as a bank, so it doesn’t appear that someone is suing a person but rather a company and this is emotionally easier to do.
My advice when speaking on this subject around the country is for Strata Managers to motion for a Safety report every AGM and then if the owners vote it down, the risk remains with the owners of the facilities. If the owners are smart they will vote up the Motion and once they have the report, the committee should then set about having the hazards identified in the report immediately rectified. In doing so and should an injury to a person occur on common property, they are at least sharing the risk with the author of the Safety report. Hopefully, by being vigilant the owners will have negated any hazards that could cause an injury.
Peter Berney
Solutions in Engineering
E: peter@solutionsinengineering.com
P: 1300 136 036
This post appears in Strata News #589.
Question: I am aware that I am responsible for a leaking water pipe solely servicing my lot. Does this change if the leaking pipe is located in the common property of the building?
I’ve been informed by my strata management that I am responsible for a bathroom leaking pipe. I am on the second floor. My downstairs neighbour has reported the leak.
I am aware that I am responsible for any water pipe that solely services my property. Does this change if the leaking pipe is located in the common property of the building? In this instance, the pipe is in my floor and my neighbour’s ceiling. Am I still responsible?
Answer: If the leaking pipe services your unit only, it doesn’t matter where it is located. Even if it’s on common property, you are responsible for the repair.
Basically, there is no common property in between two units. If you’ve got a unit underneath and a unit above, there is no common property between. The midway point is where people are responsible for up to.
If the leaking pipe services your unit only, it doesn’t matter where it is located. Even if it’s on common property, you are responsible for the repair. For example, if it’s your drain pipe from your shower that is leaking into the unit below, then despite where that pipe is located and not so much easily accessible from your unit, you are still responsible as the owner of the unit, that is for that infrastructure.
The Owners Corporation will only become responsible once the pipe ties into a common stack, or where there are two pipes from two different units joining in to head toward the common stack. In this instance, it looks like you’re going to have to get to know your neighbour downstairs. Go and knock on their door and say, ‘Hey, I understand you have a leak, I’m going to need to pop in and fix it because it’s coming from my drain’.
If you are the downstairs neighbour and you look up and see a leak in the ceiling, what’s the best course of action?
Contact your strata manager who will then contact the owner of the unit above, or the property manager if it is tenanted, and the strata manager can help the property manager or the owner to facilitate contact between the two owners.
Steve Wiebe
Bridge Strata
E: steve@bridgestrata.com.au
P: 02 6109 7700
This post appears in Strata News #586.
Question: Our block of units has constant issues with the delivery of our hot water. Although we’ve reported the issue, the strata manager will not take any action. What can we do?
Our block of units has constant issues with the delivery of our hot water. For the last 2 months, we have had to fill at least 4 buckets of water before the water begins to warm up. We have had our tempering valve replaced, however, this has not helped the issue.
I have logged many maintenance requests, as have my neighbours but this isn’t getting fixed. What else can we do?
Answer: If the system is a communal system, the Owners Corporation has an obligation to maintain and repair.
I’m presuming the complex has a communal hot water system as it sounds like there is more than one unit experiencing issues. If owners have had their tempering valve replaced, did anyone request a report from a plumber?
Is the Executive Committee aware of the issue? The committee may be able to instruct the manager to have a report undertaken and a quote obtained if major works are required.
An email could be sent to the manager requesting action and asking for a response within the week and if not then the owners will engage a plumber to investigate and forward the invoice to the manager for payment by the Owners Corporation.
As noted above – If the system is a communal system, the Owners Corporation has an obligation to maintain and repair.
Jan Browne
Bridge Strata
E: jan@bridgestrata.com.au
P: 02 6109 7700
This post appears in Strata News #578.
Question: We have a pool in our Strata Complex in ACT. What are the legal liabilities of the Owners Corporation if there is an accident or drowning?
Where there is a pool within a Strata Complex in ACT, what are the legal liabilities of the Strata/ Committee if there is an accident/drowning?
I have argued that there should be no Alcohol within the pool area and want a sign stating that. However other committee members say that residents should be able to take their drink (alcohol) to the poolside.
Answer: The level of foreseeability and probability of harm could vary from owners corporation to owners corporation
The general rule in relation to liability is that the greater the foreseeability of risk and probability of harm, the higher the obligation on the owners corporation / executive committee to take precautions to prevent harm.
Further, the level of foreseeability and probability of harm could vary from owners corporation to owners corporation (eg some owners corporations may have more risk averse owners than owners or there might be a history of drunkenness amongst some owners and owners corporations or a history of poor behaviour in some owners corporations).
All these factors come into play in determining whether action should be taken or not.
Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060
This post appears in Strata News #477.
Question: If an OC does not have a specific rule preventing residents or non-residents from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
If an OC does not have a specific rule preventing occupiers from going through the recycling bins searching for items that attract a refund, is the OC liable if that person injures themselves?
Also, how might an OC deal with situations where non-occupiers come into the complex to go through the recycling looking for items that attract a refund and when confronted by occupiers have been very nasty and rude towards the occupier?
Answer: The duty of care owed by owners corporations to occupiers and entrants on the common property is to take such care as is reasonable in the circumstances.
The duty of care owed by owners corporations to occupiers and entrants on the common property is to take such care as is reasonable in the circumstances. This duty to take reasonable care requires the occupier to protect entrants and occupiers from a risk of injury which can be foreseen and avoided. To discharge this duty, the occupier must do what a reasonable person would do, in the circumstances, by way of a response to a foreseeable risk.
Generally, an owners corporation will not breach a duty of reasonable care when someone is injured because of a defect in the premises which could not have been ascertained without expert examination, in circumstances where there was nothing that would have caused the owners corporation to believe such an examination was needed.
Christopher Kerin
Kerin Benson Lawyers
E: enquiries@kerinbensonlawyers.com.au
P: 02 8706 7060
This post appears in Strata News #464.
Have a question about the safety responsibilities around a common property playground or something to add to the article? Leave a comment below.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Read next:
Visit Maintenance and Common Property OR Australian Capital Territory Strata Legislation pages.
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