Question: Neglect of a garden on top of the carpark has been blamed on the caretaker’s lack of maintenance. Could this be correct?
Our 4 y.o. complex incorporates an elevated garden on top of part of an outdoor carpark.
Our Caretaking Agreement that is with, and was written by the developer specifies monthly maintenance and clearing of all garden drainage.
This has never been carried out by the Caretaker or his contractor with the result the garden is now completely dysfunctional. After heavy rain, it is a lagoon, that then drys to a bog. It has sprung numerous leaks now onto the carpark below. It has also become a perfect mosquito breeding ground to the detriment of the hundreds of surrounding apartments.
The Committee believes that this is a straight-forward case of neglect of duties by the Caretaker and a breach of the agreement, which can only be rectified by the Caretaker assuming responsibility and proceeding with rectification, replacement or repair – as required – to restore the garden to its original functioning condition.
Is this assumption by the Committee likely to be correct?
Answer: I think the starting point is what the caretaking agreement says.
This is an interesting one. I think the starting point is what the caretaking agreement says. These things can be open to interpretation.
After that, it all then ‘depends’ and the issue I would raise is this obviously hasn’t happened overnight. It has taken 4 (?) years to manifest itself. The consequences of the failure to perform the alleged work would seemingly have been obvious some time ago. On the body corporate side of things – what happened? Was no one looking at the duties or their performance of them? Leaks into car parks take some time to appear. Did they get ignored for an extended period? Did the caretaker suggest to the committee two years ago there might have been an issue and was told to ignore it? Those things happen.
I raise that in the context of mitigation. If there was an opportunity to mitigate some losses – i.e. act in a way that meant that the full scale of the damage might not have occurred – the body corporate might be in some way responsible for not doing that as well. It may have contributed to the damage now occurring by ignoring the defects.
Aside from that, there is a common property defect. That should be attended to and rectified. The issues referred to should be made good. That is the body corporate’s statutory obligation.
The next question is whether the body corporate can blame someone for that, and seek to recover damages from people who contributed to it. That is where the questions I refer to above will come into play.
This post appears in Strata News #507.
Frank Higginson Redchip Strata Law E: FrankH@redchip.com.au P: 07 3193 0500