NSW: Affected by wild weather? Here are three key steps to take

This article is about key steps for owners corporation to take during wild weather.

Today, I am talking about the wild and woolly state of our weather, and, in particular, what to do when damage occurs because of our wild and woolly weather.

First thing, and it’s a bit of comfort for everybody, our strata and community schemes are required to have insurance for their property. That’s association property and that’s common property. This is a very, very good thing as there is potentially an insurer sitting there waiting to assist you. So, what do we need to do?

Well, document, while the issues happening, document it.

Most of us have a smartphone, grab your smartphone, take a video, describe what you’re seeing in the video. For example:

“It’s x time, its 3.56 pm on whatever day it is. I’m just taking a video of the southwestern window of my living room. I can see water coming down . It’s been coming down for the last 10 minutes. I’ve got towels, you know, surrounding the area so that it doesn’t track through the rest of my apartment.”

Or

“It’s, 3.56pm I can see that the common property awning has completely torn loose from my balcony. It is flapping wildly in the breeze. I’m concerned that you know, the metal for instance is going to come through my window so I’m taking the following steps to to tie down that piece of metal.”

If it’s safe, I should add. Describe what the issue is.

If you do have to take emergency action, like I was saying, if the awning is flapping wildly and you need to tie it down, say what steps you are taking such as I’m going out to tie it down. In doing that you might actually damage the metal parts of an awning however it’s better to do that, I think, than to risk the metal flying off potentially and hitting someone or the metal flying into a window and coming inside and causing further damage.

So document. I you don’t have a smartphone, grab a camera. If you don’t have a camera, send a quick email to your strata manager, describing exactly what’s going on. If you don’t have email, if you can, grab a neighbour and get them to come in so they see. Someone else then knows what’s going on and they can provide back up, if needed, of what’s been happening for you.

Smartphones. They’re brilliant. They’re not just for taking selfies and TikTok (whatever that is).

We have documented: then what do we do?

We need to inform. We need to ask for help. We send the email to our strata manager saying, look, this is what’s happening & please could you lodge an insurance claim? Could you also please have somebody come out here from the insurer to assess the damage?

We’ve asked for help. We could copy (cc) our strata committee in this email as well so they’re aware of what’s going on. Our strata manager, by the by, is probably getting several hundred emails along similar lines so please be patient with them because they will be triaging the worst issues first.

We’ve documented the issue. We’ve informed. We’ve asked for help. We have a duty to mitigate any loss. On the counter side of that, we also have the ability to sue in NSW, the owners corporation under Section 106 for any damage that is reasonably foreseeable because of the owners corporations failure to maintain and repair its common property. The long way of saying it is, if the water penetration has come into your lot (or whatever the case may be) because of a defect in the common property or a lack of maintenance and repair, then the owners corporation is liable to be sued by you for any of your reasonably foreseeable loss.

Think, for instance, water’s coming down through my walls. I’ve got silk wallpaper. That wallpaper could be ruined. That would be a reasonably foreseeable loss for me. It could be that, and I have had this happen myself, water damage has come down and it has sparked my washing machine and dryer and blown them up. So that was a loss I incurred. They’re the types of losses you can occur. It could also be that if you’re unit is so damaged, nobody can live there. That is a loss that you potentially claim for compensation for loss of rent or compensation for having to find somewhere else and pay for somewhere else. Document that as well. Document your loss and you should be asking the owners corporation to repair this.

As I started saying, we have a duty to minimise our loss. For instance, if the wallpaper that I mentioned before is damp, well then I should be going and I should be trying to dry it rather than just leaving it to sag there and rot. If I have a a chair that got wet, then I should be trying to dry my chair. If the carpet is wet, does it need to be lifted and dried rather than letting it sit there damp and get mouldy? This is what I’m talking about in terms of duty to minimise loss. Again, going back to the example of if an awning was flapping wildly in the breeze and there was metal components to that awning, then I think it would be a duty to minimise loss, if it was safe to do so, to go and actually tape up those bits of the common property so that they don’t come flying into your lot or that it doesn’t hurt someone.

We are insured (for association schemes and community schemes for our association property and for our strata schemes for common property). We’ve documented our loss. I should say, all the issues, and our loss. We’ve informed our strata manager. We may have informed our strata committee at the same time and we minimised our loss. They’re the key things to do in the state of emergency.

If your strata manager hasn’t come back to you within, let’s say 24 to 48 hours depending on how urgent the situation is, I’d be following them back up. Again, they will be triaging (prioritising) and dealing with the most serious issues first. If that’s any comfort, there’s probably somebody out there that’s had a bit more damage than yourself if they are taking a while to come back to you. If they don’t come back to you within 48 hours, I’d be following up with them again and I’d follow up with your strata committee.

But fingers crossed that none of us have to put in these sort of claims and document our damage and that the storms do dissipate and we get most of our internet and our electricity back.

Good luck out there. Stay dry, everybody and talk to you shortly. Thank you.

Allison Benson
Kerin Benson Lawyers
E: allison@kerinbensonlawyers.com.au
P: 02 4032 7990

This post appears in Strata News #731.

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Read next:

• NSW: It’s Raining, It’s Pouring but You Still Need to Fix It!
• NSW: NCAT, Common Property and Water Leaks
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This article has been republished with permission from the author and first appeared on the Thoughts from a Strata Lawyer website.

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