This article is about the committees obligation to repair and maintain common property.
Jump directly to the QUESTION you are after:
- QUESTION: Our committee is aware of safety hazards and incidences have occurred but they refuse to spend money to fix these items. What can be done when the committee won’t spend on necessary maintenance?
- QUESTION: The garden directly outside my apartment never gets maintained as I’m the only one affected by it. How can I ensure garden maintenance is scheduled and regular?
- QUESTION: Our apartment is having rising damp repairs carried out. Are we required to contribute to the cost to repair and maintain common property?
Question: Our committee is aware of safety hazards and incidences have occurred but they refuse to spend money to fix these items. What can be done when the committee won’t spend on necessary maintenance?
What can we do when the committee won’t spend on necessary maintenance?
Our committee is aware of quite a few items which require urgent attention in our building. The situation is so bad it is a safety hazard. A work health and safety audit was finally done. It has been 6 years since the last audit. The audit highlighted a known trip hazard. It states the possible danger is on many floors in the building and recommends it be repaired or replaced in the short term.
Residents have tripped on this hazard. We have elder people living in the building. There are other major repairs that are also required.
The Committee will not act despite the fact that we have a very very large sum of money in our fund.
What sort of liability is the building opening themselves up to by not getting this work done?
Answer: The strata committee needs to turn their attention towards the idea of ‘lets you make best use of this money. Let’s improve our buildings.’
I’ve seen this before in buildings. We took over a building two years ago that had a million dollars in their fund, it’s a high profile building and they were able to raise the funds but they just weren’t spending them. This is due to governance and decision making issues. What that often means is that the people on the strata committee for some reason aren’t able to spend the money because they haven’t been able to either get organised or turn their attention and hearts towards the idea of ‘lets you make best use of this money. Let’s improve our buildings.’
The strata committee would need to take a good look at the way they’re doing business because it is probably problematic, and they need to put some more attention towards that. So that’s the awkward bit – a necessary conversation for that building.
The first you should do would be write to the strata manager and ask them to attend to this problem. It doesn’t have to be a thesis just a straightforward email, ‘we wish to write and formally put in a request to repair this item on common property. It’s on these levels ___. Can you please arrange for this to take place? Please raise this from the committee and I’ll get a formal reply to them’.
If the Strata Manager said no, the next thing I would do is I would personally get a couple of quotes to do the repairs and put a motion on the next AGM agenda. Any owner can put a motion on the AGM agenda and the motion I would put would be to accept one of the two quotes.
If this gets voted down, apply to Fair Trading New South Wales for an application to mediation which now costs nothing. Include the history, the work health and safety report, the quotes, the AGM minutes the AGM agenda and what was discussed and what you want to achieve, which is: get this item fixed. I would be surprised if that wasn’t successful.
Regarding liability for not getting the work done, you have insurance. I hate it when I hear buildings say, ‘Oh, we’ve got the public liability insurance don’t worry about it’. Actually, how about stepping back. We do not want anyone to get hurt in our buildings, we want to look after our tenants and our visitors and our trades people. You do have insurance, but there is always liability in strata buildings and in litigation the net goes out. The strata manager gets called in, the committee gets called in, the building gets called in, and the last thing you want to go through is a litigation because someone’s broken a bone or really hurt themselves and is now impaired and you would have to sleep at night with that. Anything to do with safety is just so important.
Nikki: Like to say it’s not just about the liability insurance is it. It’s the people that are actually living in the building.
If it’s a safety hazard that’s been picked up six years ago, that’s a problem that should be addressed.
This post appears in Strata News #384.
Question: The garden directly outside my apartment never gets maintained as I’m the only one affected by it. How can I ensure garden maintenance is scheduled and regular?
I live in an apartment in a small scheme. In the block I live in, we have a walkway that has a well-established garden on either side of the path. In front of and beside my unit is a well establish hedge to block the view of the garbage area.
None of the owners corporation members live in the block of units with a garden or hedge, so I find these areas are just left to grow wild unless I ask for the hedge to be trimmed. Every time, I have to ring and complained and then it takes a while to have the job done.
I get the feeling that unless the garden maintenance is near their apartment and directly affects them, they don’t care. Knowing that the garden and hedge need maintenance at less twice a year, it makes sense to me for the job to be scheduled.
Why doesn’t the garden maintenance outside my apartment happen without me asking?
Answer: The scheme has a strict obligation to maintain all aspects of common property. Follow our 4 steps to find out how to make sure this is regularly scheduled.
The scheme has a strict obligation to maintain all aspects of common property – here is what Judge Brereton said a long time ago.
“….4 The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists. Thus the body corporate is obliged not only to attend to cases where there is a malfunction but also to take preventative measures to ensure that there not be a malfunction. The duty extends to require remediation of defects in the original construction of the common property. And it extends to oblige the owners corporation to do things which could not be for the benefit of the proprietors as a whole or even a majority of them. 5 It follows that as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair, there has been a breach of the s 62 duty…..”
The section is now Section 106 under the new legislation.
I should think the easy way to handle this is to raise at the AGM:
- when you are discussing the budget, get the cost allocated in the fundraising
- get the committee meeting after the AGM to commit and instruct the manager to organise it. Work out the dates in the year eg April and November when the maintenance needs to be done so the manager diarises this and then it’s locked in and minuted
- If it is still not done, you know it is an issue with the manager, not the committee and you can raise this as a performance matter about the strata manager (and bring the oversight to the attention of the committee) at the next meeting. They’ll make sure they do it in the future.
- If it doesn’t get up at the meeting at budget level (and the committee meeting after the AGM to approve the frequency and dates and instruct the manager) then write to the manager to put on the meeting agenda for next year. They are legally obligated to put it on or you can go to Fair Trading (which starts with mediation) and this may be the reality check they need to get on with it.
This post appears in Strata News #264.
Question: Our apartment is having rising damp repairs carried out. Are we required to contribute to the cost to repair and maintain common property?
I am an owner of a unit in a strata building. There are approximately 60 units in the building of which 2 units are on ground level.
These 2 units are affected by rising damp. The cause of the rising damp has been determined by 2 independent structural engineers to have been caused by incorrect installation of damp causing. The build is about 35 years old and in 2003 was converted from hotel accommodation to residential units.
The executive committee of the body corporate has accepted responsibility and wishes to complete some structural repairs to maintain common property.
The repairs that they will be conducting will be to apply a moister barrier to the inside walls of the unit to a height of about 1 meter. The quote obtain indicates that we have to vacate the unit for a period of 7-8 weeks while this work is undertaken.
The executive committee have advised that there will pay for this work to maintain common property and will repaint the part of the wall of the unit to the height of the repair.
However, they have advised that:
- They will only re-render the wall to the high of the membrane and if the join is noticeable it will be at our cost to have the whole wall rendered if wish to have a smooth wall.
- That they will only paint to the repair line and if the paint does not match (which it is unlikely to do) we will have to pay for the cost to have the rest of the wall painted.
- That the cost of the temporary accommodation while the repair to the building is being undertaken will not be covered by them.
I feel that, as the work is being completed to correct a building defect (as described by the structural engineer), I expect the unit be returned in the same condition it is handed over in (smooth walls and an even paint job).
In regards to the cost of temporary accommodation, it is my understanding that all owners in the building are responsible for the cost of repairs to the building structure. As such I would think the temporary accommodation cost should also be covered, as the repair cannot be conducted unless we vacate our unit for the required period.
Answer: The Owners Corporation has a statutory obligation to repair and maintain common property
This query relates to the duty of the Owners Corporation to “properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the Owners Corporation” in accordance with Section 106 of the Strata Schemes Management Act 2015.
The Strata Schemes Management Act 2015 came into force on 30 November 2016. Prior to that, the duty was found at Section 62 of the Strata Schemes Management Act 1996.
Both the old and the new sections use the same language to express the duty to “properly maintain and keep in a state of good and serviceable repair the common property”.
In addition, both old and the new sections provide that: “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.”
When it comes to the sufficiency of the intended scope of work and whether it will suffice to meet the duty which the legislation imposes, one should focus in the key phrases “maintain and keep” in respect of the common property and “renew and replace” in respect of any fixtures or fittings comprised in the common property.
There is ample case law to support the proposition that the Owners Corporation cannot adopt a watered down or lesser scope of works if to do so would mean that the common property is not being properly maintained and kept in a state of good and serviceable repair. The Owners Corporation must replace like with like.
On the issue of paying for temporary accommodation, 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”.
This section was introduced with a view to overturning the decision in the matter of The Owners – Strata Plan No. 50276 v Thoo (2013) NSWCA 270. In that case, which dealt with Section 62 as it then was, the Court of Appeal decided that a breach of the duty to properly maintain and keep in a state of good and serviceable repair the common property did not give rise to claim for damages to a lot owner.
Section 106(5) puts the entitlement of an owner to seek damages for any loss suffered due to a breach of the duty on a statutory footing and opens the door for claims in respect of damage to personal property, loss of rental and, of course, the cost of alternative accommodation.
However, based on the actual wording of the section, there may be some room for debate in cases where the Owners Corporation is taking steps to comply with the Act. The section says an owner can recover a loss suffered as a result of the owners corporation failing to comply with its duty. Even though it would seem to lead to a somewhat absurd outcome, in this case, the section does not say you can recover loss suffered as a result of the Owners Corporation undertaking works to comply with the duty imposed.
Can you relate to this situation? Is something similar happening at your scheme? What have you tried to solve garden maintenance at your apartment building? Please let us know below in the comment section.
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