This article about the responsibility to maintain common property during extreme weather events has been provided by Warwick van Ede, JS Mueller & Co Lawyers.
Australia recently had its wettest November in 122 years. March and April 2022 have seen unprecedented rainfall in New South Wales. Extensive rainfall events test the patience of every strata manager because they result in numerous complaints about water leaks into strata lots.
Faced with apparently endless demands, owners corporations need to be very clear about their responsibilities, and it is timely to revisit some of the “fundamentals”.
Step 1 – Common Property – It’s the Owners Corporation’s Responsibility!
The primary responsibility of the owners corporation in relation to common property is that the owners corporation is required, pursuant to s106 of the Strata Schemes Management Act 2015 (Act):
- to properly maintain and keep in a state of good and serviceable repair the common property;
- where necessary, to renew or replace any fixtures or fittings comprised in the common property.
It is well established in cases decided by the Supreme Court that this duty of the owners corporation is compulsory and is absolute – that is, it is not a duty to use “best efforts” or “take reasonable steps” (Seiwa Pty Ltd v Owners – Strata Plan 35042 [2006] NSWSC 1157).
With very few exceptions, the roof of a building together with associated structures and weatherproofing elements will be “common property”.
The exceptions to this rule will be few and far between and will generally be either:
- where there are specific notations on the strata plan to the contrary (for example, in a townhouse development this sometimes occurs); or
- where it has been appropriately determined by the owners corporation (including through an appropriate by-law under the Act) that the responsibility for the maintenance and repair of a particular item of common property has transferred to the lot owner.
However, these are exceptions, and generally an owners corporation should work on the basis that keeping buildings “water tight” is an owners corporation responsibility. That can be challenging in conditions of the kind which we are currently facing.
Step 2 – If It Leaks, then the Common Property has Failed
The cases also remind us that as soon as the common property is no longer operating effectively, then it has fallen into a state of disrepair (Seiwa). That means that if the roof is leaking, the owners corporation has breached its statutory duty pursuant to s106 of the Act.
Sometimes owners corporations delay dealing with repairs or maintenance to common property because they look for excuses. How often do we hear strata committees (looking to avoid the expense of common property repairs) make various suggestions about why there is a water leak including (I have heard all of these!):
- “It’s condensation from inside – the lot owner has their heater turned up too high and has to open their window!”;
- “The lot owner needs to close their balcony doors or windows – that is what is letting in the water”;
- “It’s happening because the property next door has changed their drainage/garden/retaining wall”.
- “I don’t know why the Insurer won’t cover it – do we really need to spend that much money?”
In the end, the owners corporation has to face up to the need for repairs and maintenance. Owners Corporations will do well to remember that:
- the section 106 duty may involve repairing fixtures or fittings which have deteriorated, which are damaged, or are operating inadequately (Ridis v Strata Plan 10308 (2005) 63 NSWLR 449); and
- the duty to repair may require the owners corporation to replace items of common property (as opposed to repairing them) where it is reasonably necessary to do so (for example where an item has reached the end of its service life: see Glenquarry Park Investments Pty Ltd v Hegyesi [2009] NSWSC 425).
The lesson here for owners corporations is that there is no time for blame-shifting or prevarication. Owners Corporations should obtain expert advice at the earliest possible moment for their own protection because one of the consequences of failure of common property is the owners corporation’s potential obligation to pay damages.
Step 3 – Damages payable by the owners corporation for common property failures
Where an owners corporation has breached its duty pursuant to s106 of the Act (e.g. where there is a failure of common property resulting in water ingress) then pursuant to s106(5) of the Act the owners corporation may be required to pay to a lot owner any reasonably foreseeable loss suffered by the owner, as damages for breach of that statutory duty.
Again, there is no grace period during which the owners corporation can claim that it is “doing its best” to repair. The owners corporation is potentially liable from the moment that the common property fails. Damages which have been found to be recoverable by a lot owner against an owners corporation include:
- Rental loss (Seiwa v SP35042) and alternate accommodation expenses (Carli v The Owners – Strata Plan No 56120 [2018] NSWCATCD 55)
- Costs to clean and carry out repairs to an apartment (Trevallyn-Jones v Owners Strata Plan 50358 [2009] NSWSC 694);
- Legal costs (Nicita v Owners of Strata Plan 64837 [2010] NSWSC 68);
- Experts’ fees (Fligg v Owners Strata Plan 53457 [2012] NSWSC 230).
An owners corporation should move as quickly as possible to properly rectify any failure of common property (such as water ingress) so that the potential losses to the owners corporation pursuant to s106(5) are minimised.
Conclusion
It is critical for owners corporations to obtain advice from appropriately qualified persons at an early stage. Ideally, an owners corporation should engage in a process of preventative maintenance where that is possible. For example, it is a “no brainer” for an owners corporation to pay for regular roof maintenance such as the removal of leaves from gutters and valleys rather than waiting until a significant rain event which results in water ingress to the lots below.
Just as critical for an owners corporation is obtaining appropriate advice once common property fails in order to minimise the owners corporation’s potential liability to pay damages pursuant to s106(5) of the Act, and to avoid the additional expense of being involved in proceedings in the NSW Civil and Administrative Tribunal.
Warwick van Ede
JS Mueller & Co Lawyers
E. warwickvanede@muellers.com.au
P: 02 9562 1266
Disclaimer: The information contained in this article is provided for your personal information only. It is not meant to be legal or professional advice nor should it be used as a substitute for such advice. You should seek legal advice for your specific circumstances before relying on any information herein. Contact JS Mueller & Co for any required legal assistance.
This post appears in Strata News #563
Have a question about the responsibility to maintain common property or something to add to the article? Leave a comment below.
Read next:
- NAT: Your Balcony, Balustrades and Strata Liability
- NSW: NCAT Orders Owners Corporation to Repaint Ceiling and Repair Damage to Lot Property
- NSW: Q&A Duty to Maintain and Repair Common Property
This article has been republished with permission from the author and first appeared on the JS Mueller & Co Lawyers website.
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Dear Warwick, thank you so very much for your article.
I have been trying to get our strata manager to explain to the owners cooperation, which is represented by the strata committee, that damage that is caused subsequent to water leaking from common property (roof) will become strata’s responsibility.
The strata manager has not provided advise for 12 months despite the AGM minutes from last November also noting that she research and advise. She had previously wrongly advised me that I would be responsible for repainting the ceiling despite the fact that the damage results from common property roof leak. Her inaction leaves the committee members/owners in the dark about the possible damages they may need to cover if they don’t fix my roof/sarking.
In my villa the roof and sarking are common property. According to roofers who attended over the past 12 months to conduct 5 “make safes” of the common property roof above my villa, it is the roof sarking which has deteriorated by poor maintenance over time that needs replacing to stop the water from coming in. One roofer wrote a detailed report and provided photos to that effect 6 months ago.
The deteriorated sarking, which has been verbally estimated to cost about 30.000 to repair, is causing large amounts of water to enter my roof space and then drenches my insulation and pools on my ceiling, runs down my cornices and is likely to enter my wardrobes next.
The wet ceiling can compromise my safety in my bedroom.
Back in march 2022, during the first storm/rain water ingress event since I took ownership, when the SES first attended, they advised that I might need to poke a hole in the ceiling to allow the water to escape and prevent the ceiling from falling in on me.
I have a mobility disability and carrying limitations. Dealing with water ingress by placing buckets under ceilings and emptying them is not within my capacity. I have advised the strata manager in writing of the SES’s advise, but she does not treat the issue with any urgency.
A year has passed, the sandbags have detached from my current make safe tarpolan again, the tarpolen is flapping about and the next rain/storm is coming…..
I am now suffering anxiety about leaving the house and can’t visit my 89 yo mother in Germany for fear of not being here in the next rain/storm event to protect my personal property.
The strata manager did not notify the insurance of the damage to the roof until August 2022, even though it occurred in march 2022. She made some lame attempts to get the sarking assessed and then gave up on the idea. After 3 months of taking no action to get roofers to quote for my sarking, I complained to her about it. The strata manager has recently advised the committee that I should wait to have my sarking repair assessed and quoted for until the insurance has provided it’s roof repair assessment (9 villas) from the storm damage in march 2022.
The insurance did not inspect my sarking, so it cannot include it in the scope of work, which we are waiting for, now 12 months post incident. The strata manager is unduly delaying the maintenance repair, making me wait for an insurance outcome that can not bring about the repair of my roof. The strata committee is waiting for a miracle payout for sarking from the insurance, even though they know its a maintenance matter. Meanwhile our capital works fund (approx 50.000) is used to repair other common property damage that has occurred much later than my sarking damage.
The strata manager has now advised that my maintenance issue needs to wait even longer, and that it will not be dealt with after the scope of work from the first insurance claim is known.
She advised that she lodged another claim for hail damage that supposedly occurred in august 2021, before I bought my villa. Until the outcome of that new claim, she would not get quotes to repair my sarking, unless instructed differently by the committee.
The committee is silent.
The committee which the owners cooperation has delegated all (?) decision making power to does not respond to my many attempts to achieve a timely repair of the common property, the sarking in my roof. It is not interested to know the laws/the Act or what responsibilities they have as committee members. They have delegated all office baring positions to the strata manager and find it annoying that I question their and the strata managers action/ non action.
At the AGM in November the owners cooperation has given the committee all power to make decisions again (there are no restricted matters), However there is no by-law that sais that.
At the AGM the owner’s cooperation agreed to have all of the roof restored to functionality, decided to delegate the roof repair to be conducted at the committee’s discretion, and that a special levy was to be drawn to pay for the roof repair once all quotes are in.
I would have thought that it’s the owners cooperation that needs to make further decisions regarding the timing of my sarking repair, but the strata manager advised that the strata committee, which I am a member off, makes decisions about common property repairs by majority vote. As previously stated the committee is silent.
The strata manager/committee favors some owners above others. They have allowed a long term owner to commence a $200.000 renovation without being shown plans, or being given any information about the work that is being carried out. I know that the work includes extensive bathroom renovations that affect the waterproof membrane, and that there is the erection of an external awning that has occurred, both without any by-law in place.
The strata manager allowed this owner’s builder to carry out common wall and front door replacements without first having to provide a quote/estimate for supposed termite damage repair and without ever having to provide photographic evidence that termite damage to the front door occurred. She repeatedly advocates that no checks and balances for this particular builder need to be in place, that he would not lye to us, and that he is trusted to know strata laws so that he would not overprice the service. She told the committee that the rules I forwarded from the government’s website, about how strata should deal with repairs, are not law and that the committee does not have to consider them.
In favor of this owner, the strata manager also misinterpreted and miscommunicated the committee’s vote, and refused to provide all committee members responses to me for 1 month.
It was only when she finally did that I discovered her mistaken vote count.
I am a person who suffers mobility disability and feel that I am in a very dysfunctional process that is causing me anxiety and is placing my safety at risk.
I feel that the strata manager does not conduct herself as required by her licensing/registration, because she does not correctly advise how strata rules work, and because she is not taking timely action on a safety issue – my sarking repair.
In my view the committee’s inaction shows that they are not exercising due diligence and care.
Sorry my story is a long one. Do you have any suggestions?
Warmest regards, Doerthe Jansen