This Q&A about major rectification work and lack of waterproofing in a NSW strata building has been answered by Christopher Kerin, Kerin Benson Lawyers.
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- QUESTION: Who is responsible for paying for the remediation of a Serious building defect in an older building that was developed and remodelled by a single owner/developer and then converted to 4 separate strata lots?
- QUESTION: Our building needs major rectification work costing $2,000,000 due to 20 years of defects which have never been addressed. Can we sue the strata manager of 20 years tenure for failing to not insist the strata committee address the maintenance of the building?
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Question: Who is responsible for paying for the remediation of a Serious building defect in an older building that was developed and remodelled by a single owner/developer and then converted to 4 separate strata lots?
Who is responsible for paying for the remediation of a Serious building defect in an older building that was developed and remodelled by a single owner/developer and then converted to 4 separate strata lots?
It is obvious to the members of the newly formed strata that the defect was covered up.
This redevelopment was completed less than 6 years ago.
Answer: If the defect arises from the re-development and involved residential building work, then statutory warranties will apply.
If the defect arises from the re-development and involved residential building work, then statutory warranties will apply and the builder and developer will be responsible for any breaches of the statutory warranties.
The new Design and Building Practitioners Act 2020 may also apply. This creates a statutory duty of care on builders and certain designers, building product manufacturers and suppliers, and supervisors, which duty cannot be delegated or contracted out of. I would need a lot more detail to advise on this.
This post appears in Strata News #375.
Question: Our building needs major rectification work costing $2,000,000 due to 20 years of defects which have never been addressed. Can we sue the strata manager of 20 years tenure for failing to not insist the strata committee address the maintenance of the building?
Our Strata building with 22 lots has not had waterproofing to the roof of the building since being built forty years ago. We now require major rectification work costing $2,000,000 to be done including the treatment of concrete cancer.
Can we sue the strata manager of 20 years tenure for failing to not insist the strata committee address the maintenance of the building? I believe the strata manager has failed in the management of our building.
We do not have a Capital Works Fund plan in place and, on inspection of the records, we’ve discovered records of our Strata Plan are missing.
Answer: A better course of action would be to sue the strata committee members.
The answer to the question is “it depends” but given the strata manager is required to follow directions from the strata committee such an action would be unlikely to succeed.
A better course of action would be to sue the strata committee members over the last 20 years for failing to ensure that the sinking fund was adequately provisioned. In this regard, it should be noted that such actions have been successfully prosecuted in the United States.
The maintenance of strata records might be something for which the strata manager could be liable however any solicitor or conveyancer acting for a purchaser could also be liable if he or she failed to suggest an inspection of the strata records (although again any liability here would depend upon the interchange between solicitor / conveyancer and client). However such an action against the strata manager for failing to maintain strata records is unlikely to result in being able to successfully sue for the total loss sought to be recovered (ie $2,000,000).
Finally, most strata managers have caps on liability under their strata management agreement which limit the amount for which they can sued for (assuming they can be sued) in relation to the work required to be completed under the management agreement.
This post appears in Strata News #368.
Have a question about major rectification work and lack of waterproofing in NSW strata buildings or something to add to the article? Leave a comment below.
Christopher Kerin
Kerin Benson Lawyers
P: 02 8706 7060
E: [email protected]
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
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These sorts of problems are compounded as Strata Managers seem to operate ion a ‘we care but take no responsibility‘ model.
Individual managers seldom have the knowledge or expertise to understand complex building management and rectification issues.
I agree with Stephen. The Strata Committee does not have the power to determine the levies, only the Owners Corporation, so beware of that possible defence. Be objective of the circumstances, to assess other possible defences. Did owners have the opportunity for a building inspection prior to purchase? Any owner is allowed, under the legislation, to obtain quotes, and/or put motions forward for works to be addressed. Was this ever done? Should those motions not have been passed, an owner had the opportunity to apply to NCAT. If the Strata Committee was failing, why were they allowed to get away with this, when there are avenues in the legislation to address this? By voting more proactive and responsible members onto the committee, by voting to have members removed (or via NCAT), maybe even the possibility of a compulsory strata manager? Just some possible defence arguments to think about ahead of what would likely be costly litigation.
We have issues with a roof and other water leaks $500,000.00 in repairs and a council issue with garages and underground parking cost unknown at this time. There is evidnece we are now aware of that the Strata manager knew about this for many years, however this information was not disclosed when the records were inspected by a number of us when we purchased in the last 2 to 4 years. I have been also told by a long term resident that the Strata Manager when organising and having meetings with the committee about these and other matters, called them unoffical get togethers so he would not have to keep minutes that a buyer may see!!! What action can be taken against the Strata Manager in this case?
Hi Graeme
“….so he would not have to keep minutes that a buyer may see!!!”
We have discussed this issue in a previous article, which you may find interesting – NSW: Think strata construction is bad? Strata records are worse!
As an owner, you needed to make yourself aware of what is going on in your building. You really needed to be more proactive and have joined the committee.
Saying that the Committee and Strata Manager are to blame for not documenting the issues. Though as you appointed the Committee and Strata Manager to act on behalf of all owners, your changes at the Tribunal will be slim.
If I were you I would appoint a new strata manager and have the issues fixed immediately.
To anyone else who is reading this, please please have a looking at the financials to find what is being spent and how much. If your plumbing maintenance costs have gone up substantially, that should be an indication for you to step up and join the committee.
“A better course of action would be to sue the strata committee members over the last 20 years for failing to ensure that the sinking fund was adequately provisioned. In this regard, it should be noted that such actions have been successfully prosecuted in the United States.”
Do not hold the US up as a model for anything – a seriously defective country
I would have thought that passing an adequate budget was the responsibility of the OC at a general meeting – see s 81(1)
Nowhere in the Act is it specified who has responsibility for preparing the budget but the standard SCA style management agreement implies that ‘manage the capital works and administration fund’ and ‘prepare the AGM notice’ would incorporate preparing the budget and so the provision in the SSM Act that makes anything done by the agent something done by the OC again brings it back to the OC.