The following questions are from New South Wales strata lot owners asking about costs and reimbursements for repairs required due to common property defects. Thanks to Leanne Habib of Premium Strata, Tyrone Shandiman of Strata Insurance Solutions and Pierrette Khoury of Khoury Lawyers for providing the following responses.
Jump directly to the QUESTION you are after:
- QUESTION: We discovered a leak in the ceiling of our newly renovated bathroom. Strata will fix but will cover the repair hole with a vent. We’d like it returned to the condition it was in prior to the leak.
- QUESTION: A lot owner put down a hard floor under a special bylaw to transfer the obligation of maintenance of the surrounding common property to the lot owner. We now need to dig up the floor for a pipe repair and they are not being cooperative.
- QUESTION: While carrying out kitchen renovations, engineering work was required to repair concrete cancer in the floor. Can I be reimbursed the substantial costs for repairs to common property defects?
- QUESTION: Water damage was caused to a lot owner’s floating floor boards from a common property defect. Aren’t internal floor coverings the responsibility of the lot owner?
- QUESTION: Our hardwood floors have suffered major water damage due to common property defects. Should the Body corporate reimburse out of pocket expenses for accommodation and food while we vacate the property for repairs?
- QUESTION: Our bathroom’s waterproofing membrane has failed and is causing damage to the lot below. Should the Owners Corporation be responsible for all repairs, as these are only needed due to common property defects?
- QUESTION: Due to a common property defect, my tiles were damaged in an area on my verandah. As the tiles could not be matched, the whole space must be retiled. Should the OC pay for all work?
- QUESTION: The floor in a lot’s kitchen has to be repaired because of concrete cancer. The lot owner now wants the owners corporation to pay for a new kitchen.
- QUESTION: One lot owner has put in a claim for over $6000 from the owner’s corporation for bathroom renovations.
- QUESTION: A lot owner wants reimbursement for repairs required due to common property defects, although they did not follow the correct process. Should the Owners Corporation appease this lot owner?
- QUESTION: Who is Responsible for Sanding Polishing Floorboards?
GET NOTIFIED WHEN WE PUBLISH NEW Q&AS, NEWS AND ARTICLES TO THE SITE
Question: We discovered a leak in the ceiling of our newly renovated bathroom. Strata will fix but will cover the repair hole with a vent. We’d like it returned to the condition it was in prior to the leak.
I recently noticed a drip through a light fitting in my main bathroom. We completely renovated the apartment earlier this year, including this bathroom.
The strata manager has agreed to fix the defect but the plumber will cover the hole he needs to cut with an air vent.
We’ve just spent over 6 figures completely renovating our apartment. I feel Strata should, after repairing the pipes, return the ceiling to the condition it was in prior to the leak. Is this unreasonable and what can we do?
Answer: If the leak is due to a defect in the common property, the owners corporation should re-instate all affected lot and common property.
Pursuant to Section 122 Power of owners corporation to enter property in order to carry out work of the Strata Schemes Management Act, 2015 (NSW):
- 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.
So, if the leak is due to a defect in the common property, the owners corporation should re-instate all affected lot and common property.
You should raise this position with your strata manager, and, if the owners corporation still refuses to re-instate your ceiling/paint/lights, you may apply for Mediation to attempt to resolve the situation (failing which, commence action in NCAT).
Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]
You can connect with Leanne & Premium Strata on Facebook, Twitter & LinkedIn.
This post appears in Strata News #356.
Question: A lot owner put down a hard floor under a special bylaw to transfer the obligation of maintenance of the surrounding common property to the lot owner. We now need to dig up the floor for a pipe repair and they are not being cooperative.
We have a situation in our building, which is a complex of 40 units in Sydney, New South Wales. A lot owner put down a hard floor in 2012. We asked the lot owner for a special bylaw to transfer the obligation of maintenance of the common property on which the floor was laid to the lot owner. This was approved at an extraordinary general meeting and recorded in the minutes.
We now find that we need to take up some of the hard floor in order to access pipes that were embedded in the concrete at the time of construction.
The owner has shown us the Strata Scheme Management Act for that time which says that in order for a bylaw to be binding it needs to be signed by the owner and he did not sign anything because we didn’t know to ask him to sign.
52 How does an owners corporation make, amend or repeal by-laws conferring certain rights or privileges?
- An owners corporation may make, amend or repeal a by-law to which this Division applies, but only:
- with the written consent of the owner or owners of the lot or lots concerned
Our strata manager says that there is also a clause in the legislation that says that after two years it is deemed that everything was correctly done with respect to the bylaw and therefore the by-law is binding.
After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the bylaw were complied with and performed.
Answer: Look to section 148 – Order revoking amendment of by-law or reviving repealed by-law
It is arguable that section 52 applies which provided at that point in time:
- After 2 years from the making, or purported making, of a by-law to which this Division applies, it is conclusively presumed that all conditions and preliminary steps precedent to the making of the by-law were complied with and performed.
I am presuming the special by-law was prepared, however not signed and registered.
Having regard to the Strata Schemes Management Act 2015 there are provisions which are relevant. An application may be made to the Tribunal regarding the special by-law which is set out in section 148. The Truibunal is to consider the interests of all owners of the lots in the strata scheme.
Order revoking amendment of by-law or reviving repealed by-law
- The Tribunal may, on application by a person entitled to vote on the amendment or repeal of a by-law or addition of a new by-law or the lessor of a leasehold strata scheme, make one of the following orders–
- an order that the amendment be revoked,
- an order that the repealed by-law be revived,
- an order that the additional by-law be repealed.
- The Tribunal may make an order only if the Tribunal considers that having regard to the interest of all owners of lots in a strata scheme in the use and enjoyment of their lots or the common property, the change to the by-laws should not have been made by the owners corporation.
- An order under this section, when recorded under section 246, has effect as if its terms were a by-law (but subject to any relevant order made by a superior court).
- When making an order under this section in relation to a common property rights by-law, the Tribunal may direct the payment by the owners corporation of compensation to the owner of the lot, or owners of the lots, referred to in the by-law.
Note: Section 78 of the Civil and Administrative Tribunal Act 2013 provides for the recovery as a judgment debt of amounts ordered to be paid by the Tribunal.
- An order under this section operates on and from the date on which it is so recorded or from an earlier date specified in the order.
A further power is contained in section 149 of the Act: Order with respect to Common property rights by-law. Subsection (b) is of relevance where an owner of a lot has unreasonably refused to consent to the terms of the proposed amendment or repeal of a common property rights by-law.
- (b) on application made by an owner or owners corporation, that an owner of a lot, or the lessor of a leasehold strata scheme, has unreasonably refused to consent to the terms of a proposed common property rights by-law, or to the proposed amendment or repeal of a common property rights by-law, or
This post appears in Strata News #329.
Pierrette Khoury
Khoury Lawyers
P: 0415 459 486
E: [email protected]
Question: While carrying out kitchen renovations, engineering work was required to repair concrete cancer in the floor. Can I be reimbursed the substantial costs for repairs to common property defects?
I recently carried out renovations to my unit.
During the process I noticed that the concrete slab area in the kitchen had crummy patches and loose concrete.
I contacted a structural engineer to look at the slab. The engineer removed further concrete to find the whole area was crummy and the reinforcement was significantly rusted to the point where steel came out with loose concrete.
The engineer specified what should be done to repair the slab. I engaged a specialist contractor and he carried out the works. There was no lump sum cost as he was not able to determine the full extent of work. The work eventually cost $27000.
Can these costs be given to the owners Corp for reimbursement as repairs to common property defects? Is there a time frame for claiming the reimbursement? I have only been made aware the owners Corp paid for this work in another unit at $60,000.
Answer: An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
The usual process is that the owner notifies the strata managing agent of any issues concerning the property as soon as they become aware. This should be in writing.
Section 106 of the Strata Schemes Management Act 2015 provides a statutory duty that the Owners Corporation is to comply with.
It provides that:
- An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
- An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
The section does not apply if the owners corporation has determined by special resolution at a meeting that: it is inappropriate to maintain, renew, replace or repair the property, and its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
Relevantly to your situation section 106(5) provides:
- An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
- An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
At first instance, I would notify the strata managing agent of the works undertaken with the evidence of the same attached and seek reimbursement. You will need to ensure that the works carried out affected the common property. You will also need to show it was a reasonable foreseeable loss you suffered and that is why you took steps to carry out the work and mitigate your loss.
In the event, you do not receive a response I would refer the strata managing agent to section 106 outlined above whereby the Owners Corporation have a statutory duty to properly maintain and keep in a state of good and serviceable repair the common property and any personal property.
This post appears in Strata News #314.
Pierrette Khoury
Khoury Lawyers
P: 0415 459 486
E: [email protected]
Question: Water damage was caused to a lot owner’s floating floor boards from a common property defect. Aren’t internal floor coverings the responsibility of the lot owner?
We recently had an owner put in a claim for the owners corporation to pay for damage to their floating wooden floor within their living area. The damage was due to water leakage.
After consulting with our Strata agent they advised that this is now a ‘grey area’ in NSW and that the owners corporation may be liable.
This is news to me as I thought it was clear cut. I thought the internal floor coverings; carpet, floating and fixed wooden floors that were installed by past or present owners are the responsibility of the present owner and should be covered by their own household insurance.
Answer: It is important to understand the difference between “responsibility to insure” and “responsibility for damage”.
I think it is important to understand the difference between “responsibility to insure” and “responsibility for damage”. It is my view this may be the cause of the misunderstanding.
“Responsibility to Insure” is covered by Section 161 (4) Strata Schemes Management Act 2015 and outlines that temporary floor coverings are not required to be insured under a strata policy. Subsequently, strata insurers will exclude cover for floating floors.
Insurers have however started providing an optional benefit to cover floating floors. This muddies the waters somewhat as contents/landlords insurance which has traditionally been the policy to insure floating floors now covers fixtures that are not insured by the strata policy. In the event of a claim for damage to floating floors, if an owner tries to make a claim on their contents/landlords insurance policy, the contents insurer may require confirmation that the strata insurer is declining to provide cover. If the strata insurance policy has the optional benefit covering floating floors selected and you contact the insurer for a decline letter. The insurer technically can not decline a claim for something they cover. For this reason, we caution owners corporation clients about taking the floating floors optional benefit because it can have the unintended consequence of forcing an owner to claim on strata even if their preference is to claim on their contents/landlords insurance.
“Responsibility for damage” or a negligence claims against the owners corporation are different from any property damage claim. Strata policies have public liability insurance which is designed to provide cover for claims for property damage they become legally liable for. If the leak was from the owners corporation property (such as a leaking pipe the owners corporation are responsible for) and the owner can demonstrate negligence on the part of the owners corporation or a legal responsibility for the damage, then a public liability claim can be considered by the insurer. The insurer will either defend the claim if they feel there are reasonable grounds to do so or they will settle the demands.
This post appears in Strata News #306.
Tyrone Shandiman
Strata Insurance Solutions
T: 07 3899 5129
E: [email protected]
This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.
Question: Our hardwood floors have suffered major water damage due to common property defects. Should the Body corporate reimburse out of pocket expenses for accommodation and food while we vacate the property for repairs?
We have had major water damage occur to a hardwood floor laid on battens on a slab as part of the original build in a 10 year old NSW town house complex.
The hardwood floors are recognized as Body Corporate responsibility as the damage is due to common property defects.
For reasons too convoluted to go into, insurance is refusing to pay out.
Body corporate are willing to pay for the repair, though I will need to vacate my property for at least a week while the floor is replaced.
Does Body corporate have an obligation to reimburse me for out of pocket expenses to house and feed my family for a week while we vacate the property for repairs?
Answer: The accommodation should be recoverable, but it is unlikely that the costs of food etc would be reimbursed.
If the water ingress can be construed as a failure on the part of the owners corporation to properly repair and maintain the common property, then under Section 106(5) of the Strata Schemes Management Act 2015 (NSW):
- An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
If the above clause is applicable, in our view, the accommodation should be recoverable, but it is unlikely that the costs of feeding etc would be, given that you must feed your family wherever you live ie the requirement to feed your family has not arisen because of any breach of the owners corporation. Bearing in mind too, that you must mitigate your losses, so rather than stay at eg a 5-star hotel and eat room service every night, we recommend you find a serviced apartment of similar quality in the vicinity of your existing apartment.
This post appears in Strata News #300.
Question: Our bathroom’s waterproofing membrane has failed and is causing damage to the lot below. Should the Owners Corporation be responsible for all repairs, as these are only needed due to common property defects?
Our bathroom is the original bathroom and the waterproofing membrane has failed and is causing damage to the lot below.
The Owners Corporation’s contractor has advised that to comply with the current building codes, the entire bathroom needs to be stripped out, the waterproofing membrane replaced and the bathroom tiles and fixtures renewed.
As the bathroom and waterproof membrane are original and there is nothing wrong with the tiles or fixtures, shouldn’t the Owners Corporation be responsible for the cost to replace these? The repairs are only needed due to the common property defects and so the Owners Corporation can maintain the common property membrane. Is this correct?
The current bathroom is tiled in marble and we have even advised we will accept a standard white tile instead of requiring the like for like marble tiles, as this will keep the cost lower.
What bylaw or part of the legislation would we be able to quote in regards to this? Who is responsible? The property is about 30-40 years old.
Answer: There is a very similar 1999 strata titles case.
There is a 1999 case where water had leaked into two lots below another lot so the owners corporation removed two rows of tiles to effect membrane repairs. The owners corporation was insistent that its obligations extended only to replacement of the 2 rows of titles it had removed. The Owner, however, wanted his entire balcony retiled.
An Adjudicator ordered that the owners corporation had to retile with tiles that matched as closely as possible in appearance and value so as not to detract from the appearance of the balcony floor or negatively impact on the value of the lot. Further, if reasonably matching tiles were not available and those non-matching tiles might detract from the appearance of the lot, the owners corporation was to retile the whole balcony.
This post appears in Strata News #266.
Question: Due to a common property defect, my tiles were damaged in an area on my verandah. As the tiles could not be matched, the whole space must be retiled. Should the OC pay for all work?
My veranda incorporates a steel post which structurally supports the roof above. The post was defective in that it had no ‘weep holes’ to allow condensation to flow out. The water resulting inside the post eventually rusted the base of the post and, destabilised the tiles and tile bed.
In fixing this common property defect, the tiles could not be matched therefore the veranda had to be retiled.
The Strata management advised that this was not their responsibility even though the damage was consequential to the defective pipe and only required replacement due to damage caused by the common property defect.
The strata manager said that they may be responsible for the portion of the tiles that were damaged by the pipe but not the whole retiling job. I note again that the tiles could not be matched so there was no alternative other than full replacement.
Can you advise my rights to recover costs?
Answer: There is a strata titles case very similar to yours.
There is a strata titles case concerning a common property defect (Denning v The Owners – Strata Plan No. 11318 [1999] SA/99/038) which states that the duty of the Owners Corporation to repair tiles on a balcony, in a context similar to yours, was, either to match new tiles as closely as possible in appearance and value to the existing tiles so as not to detract from the appearance or value of the lot OR in case very similar tiles were not able to be sourced, then the owners corporation would have to retile the whole balcony floor.
This post appears in Strata News #220.
Question: The floor in a lot’s kitchen has to be repaired because of concrete cancer. The lot owner now wants the owners corporation to pay for a new kitchen.
Who is responsible for a kitchen in a unit? The floor in a lot’s kitchen has to be repaired due to common property defects, specifically because of concrete cancer. The lot owner now wants the owners corporation to pay for a new kitchen. The original kitchen was 30 years old! Where do we stand?
Answer: The Owners Corporation would need to address concrete cancer and then reinstate the kitchen with like for like.
It sounds like the kitchen is original. Subject to any by-laws applicable to the scheme and any notations on the strata plan, the general position is that the floor tiles, any membrane and the structure of the concrete slab are all common property, and, therefore, the responsibility of the Owners Corporation.
The Owners Corporation would need to address concrete cancer and then reinstate the kitchen with like for like. Any upgrade or superior finishes would be at the cost of the individual lot owner.
Question: One lot owner has put in a claim for over $6000 from the owner’s corporation for bathroom renovations.
What are the responsibilities of Strata Committee members in relation to maintenance work? One lot owner has put in a claim for over $6000 from the owner’s corporation for bathroom renovations. Is this allowed? Who has the right to view the bathroom in question? All lot owners, or just the Strata Committee members?
Answer: If the owner alleges the renovations were required due to common property defects, then such defects should have been notified to the owners corporation.
Bathroom renovations require a by-law under the legislation – which the owner appears not to have obtained. If the owner alleges the renovations were required due to common property defects, then such defects should have been notified to the owners corporation.
The owners corporation should not be liable to foot the bill unless there is compelling evidence of a defect in the common property necessitating a full bathroom renovation. This does not seem to be the case. You should seek legal advice on this one. Before you can access the lot, you will need the relevant owner’s consent.
Question: A lot owner wants reimbursement for repairs required due to common property defects, although they did not follow the correct process. Should the Owners Corporation appease this lot owner?
We had a motion passed after a discussion held at our last years AGM.
See below:-
MOTION
If an owner authorises work on common property and bypasses the Strata Committee and Strata Manager then the Owners Corporation will not reimburse the owner for such works. All requests for maintenance must be channelled through the Strata Committee and the Strata Manager who will then issue a work order to a certified contractor.
The motion will then either be CARRIED/AMENDED or LOST
This was carried by the Owners Corporation.
Since this was passed at the last AGM, we had an owner get work done on her lot. The work was necessary due to a common property defect and was carried out by their own contractor. They are now demanding a reimbursement for the cost of the work.
Just prior to this claim, another owner wanted the same issue caused by the common property defect repaired. They requested the issue to be repaired through the strata manager and after confirming it was strata responsibility, the job was done at strata’s costs. This owner followed the correct process, as per the motion.
The owner who has not followed the process and has had the work done outside of this motion is causing all kind of demands because the compliant lot owner was compensated by strata.
We passed this motion because we have previously had owners being reimbursed at a later date for works that have not been channelled through the strata manager and strata committee.
Should the strata committee go against a motion passed at an AGM by the Owners Corporation to appease this owner?
Answer: We would not entertain reimbursement until such time as the owner demonstrated actual costs, the qualifications of the workers, the necessity for the works, the insurances/warranties obtained.
This is a difficult question because the motion passed implies that an owner has authority to issue work orders for work on the common property (which they do not) but if they do so, they will not be reimbursed. While we understand this was intended to dissuade lot owners from by-passing the proper channels for common property repairs, Section 111 clearly states that owners must not carry out work on the common property without the proper approvals. Further, Section 126 gives the Tribunal powers to order an Owners Corporation to consent to common property repair works carried out by an owner and which directly affects the owner’s lot.
The concern for the Owners Corporation is that where a lot owner carries out the work, the Owners Corporation does not obtain the benefit of any warranties for works carried out. Also, it is not aware of the qualifications of the contractor carrying out works on the common property and there is a possibility that the insurances of the Owners Corporation may have been compromised.
All that said, we cannot give you legal advice. However, we are of the view that the by-law is confusing and could be better drafted.
In terms of the current issue at hand with the lot owner demanding reimbursement, again while we cannot give you legal advice, we would not entertain reimbursement until such time as the owner demonstrated:
- actual costs
- the qualifications of the workers
- the necessity for the works
- the insurances/warranties obtained.
Ultimately, and because of the strict liability of the Owners Corporation to properly repair and maintain the common property, the owner could make application to NSW Civil & Administrative Tribunal and recover from the Owners Corporation damages for the Owners Corporation’s breach of statutory duty Section 106 (5).
Question: Who is Responsible for Sanding Polishing Floorboards?
I wonder if you can clarify a strata question that is very grey with regards to my floorboards.
Our building in Sydney NSW was completed on the year 2000. Each townhouse has a section of floorboards in the lounge room.
Our Strata manager says the floorboards are not common property and are the owners responsibility.
This contradicts the following – last year we had some rectification works due to common property defects relating to waterproofing and some of the townhouses did have some water damage to their floorboards and the strata paid for the repairs to the floorboards.
When I asked the strata manager about sanding polishing floorboards, they said NO as these are the owner’s responsibility. When I asked the Executive Committee, the chairperson said that because the other units had damage caused by the reification works of the common property defects, the owners corporation had to pay for them.
I find this inequitable and am really confused. What do I do?
Answer: You need to confirm whether your flooring is common property or lot property
It is not uncommon for the Owners Corporation to repair lot property resulting from damage caused by common property defects. Therefore, whilst the flooring may not be common property, the Owners Corporation would still be responsible to repair flooring where their property has caused the damage.
However, to determine if your flooring is common property or lot property, and which party is responsible for general repair and maintenance of the flooring, the following should be confirmed:
- Type of timber flooring , hard flooring or floating floors
- How the timber flooring is installed, is the flooring attached to the common property in any way, i.e. screwed, glued to the floor slab.
- Is the timber flooring part of the original building, i.e. installed at the time of construction and not replaced or altered by an individual owner(s) since construction
- Are there any special bylaws that transfer the responsibility of maintaining the flooring to either party, the individual Owners or the Owners Corporation
In summary, if the flooring was installed at the time of construction, has not been altered since by an individual owner(s) and is affixed to the common property floor slab within your lot, and there is no special by law in place to determine who is responsible, the flooring will be deemed to be common property and the Owners Corporation would be responsible to repair and maintain. Please note there is an argument excluding the polish/lacquer, which is lot owner responsibility as it is our view that the polish sits within your lot space. It is the upper surface of the floor and the starting point of your cubic airspace in as much as you own the painted surface of the common property ceiling in your lot.
Therefore, in practice, while the Owners Corporation is responsible to repair and maintain the floorboards, any cost for application of polish would be payable by you.
In conclusion, further assessment of the need for re-sanding will assist in determining who’s proper responsibility the polish is, as there are alternate arguable views regarding the responsibility to repolish the flooring.
This post appears in Strata News #211.
Leanne Habib
Premium Strata
P: 02 9281 6440
E: [email protected]
You can connect with Leanne & Premium Strata on Facebook, Twitter & LinkedIn.
These articles are not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question about common property defects or something to add to the article? Leave a comment below.
Read next:
- NSW: Q&A Are there template renovation bylaws available?
- The Age of Concrete Cancer: Can Concrete Cancer Be Fixed?
Visit Committee Concerns, Maintenance and Common Property OR NSW Strata Legislation
Looking for strata information concerning your state? For state-specific strata information, take a look here.
After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.
“[…] This muddies the waters somewhat. […]”
But I doubt he’d sluice the office, Clancy, of ‘The Overflow’.
With sincere apologies to Mr A. B. (Banjo) Paterson. [RIP]