Question: What options to comply with their duty to maintain common property are available to owners facing increased costs for urgent property repairs due to heavy rains, especially those on fixed incomes, when funds are limited and the repair process is lengthy?
The OC has a duty to maintain common property. However, torrential rains cause delays. Engaging an engineer and going to tender with qualified builders all takes time.
Although we have a reasonable amount in the capital works fund, a special levy is required. Costs of works regulated under the Design and Building Practitioners Act 2020 can be excessive.
Where do owners stand when they’re trying to do the right thing but getting funds together takes time? What options are available, and how do pensioners handle this so they don’t lose their homes?
Answer: The owners corporation has to fix the problem in the common property immediately.
This question appeals to the practical reality that an owners corporation can’t fix common property defects immediately. It takes time to raise the funds necessary to do so – to put works out to tender, get a contract and get the work done.
Unfortunately, none of that matters in the sense that the courts have interpreted the duty of an owners corporation to repair common property as a strict one. The owners corporation has to fix that problem in the common property immediately. I accept it is unrealistic in many cases, but that is how the courts have interpreted the strict nature of the owners corporation’s duty.
An owners corporation may wind up in NCAT and say, “Look, we had all the best intentions to fix this problem, but it just took us 6 months to get our expert in to write a scope, to put the scope out to tender, to then get the tender analysis, to raise the special levy or take out a strata loan, for the owners to pay that levy and then finally, get the contract and get the contractor on-site”. NCAT is going to say, “that’s wonderful, but unfortunately the law is not on your side. You needed to fix that problem immediately, and you didn’t. Therefore, you were in breach of your duty to repair the common property.”
Adrian Mueller
JS Mueller & Co Lawyers
E: adrianmueller@muellers.com.au
P: 02 9562 1266
Leave a Reply