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.
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.
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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