Question: The waterproofing on my balcony needs repair. If the decking on the balcony is damaged during the repair, is the owners corporation responsible to replace it?
In my apartment I have an outside balcony deck that has waterproofing underneath. The waterproofing is leaking into the downstairs lot and is about to be repaired.
The owners corporation is paying for the waterproofing, but do they also pay to pull up the decking? It’s not my fault that it needs to be removed. If the decking is damaged during the repairs and can’t be reused, is the owners corporation required to replace the decking?
Answer: If the Owners Corporation concedes that the waterproofing is at its cost and responsibility, they are liable for any damage to your lot or any of its contents caused by carrying out such works, unless the damage arose because the Owners Corporation was obstructed or hindered.
If you installed the decking, you should have a by-law authorising such an installation, and, that by-law would likely specify whose ongoing responsibility the waterproofing and/or decking would be.
If your decking is an original installation, ie it was installed at the time of registration of the strata plan, the by-laws and/or strata plan may direct whose responsibility the deck and/or waterproofing are. For example, the deck may be wholly within your cubic lot space and wholly your responsibility.
As a general proposition, if the Owners Corporation concedes that the waterproofing is at its cost and responsibility, and carries out such works, the Owners Corporation is liable for any damage to your lot or any of its contents caused by the carrying out of such works, unless the damage arose because the Owners Corporation was obstructed or hindered. If the deck was installed by you, that arguably could be construed as you causing an “obstruction” – ie the Owners Corporation had to remove and potentially damage your deck in order to carry out its duties regarding waterproofing. On the other hand, if the deck is properly authorised or common property, it is likely that the Owners Corporation would be liable to rectify any damage or re-instate it if damage occurred.
In sum, it is difficult to determine with any precision whose responsibility damage to the deck would be where it is not known if the deck is an approved structure, lot or common property.
This post appears in the February 2022 edition of The NSW Strata Magazine.
Leanne Habib Premium Strata E: info@premiumstrata.com.au P: 02 9281 6440