Question: In our body corporate building, despite repeated requests a lot owner refuses to stop cleaning his roof. We are concerned about insurance issues. We are under the accommodation module.
Answer: If the roof is deemed to be common property, the body corporate can be drawn into a personal injury claim if the lot owner is injured while cleaning the roof.
Tyrone Shandiman, Strata Insurance Solutions:
Strata insurance policies provides cover for amounts the body corporate becomes legally liable (including defence costs) for personal injury or property damage claims.
In this instance, if the roof is deemed to be common property, the body corporate can be drawn into a personal injury claim if the lot owner is injured while cleaning the roof.
When a personal injury claim is made, insurers will consider defences available to the body corporate and if the committee has previously written to the lot owner expressing safety concerns and advising the lot owner they are not authorised to be on the roof without permission of the body corporate, the insurer would likely consider this as part of their defence.
It is a requirement that body corporate takes reasonable action to minimise claims and it would be difficult for an insurer to find the committees actions were not reasonable in the event an owner were to simply disregard requests from the committee to not be on the roof.
Todd Garsden, Mahoney:
If the cleaning works is something the lot owner is responsible for (usually a standard format plan), then the owner is entitled to carry it out. However, they must do so in a way that does not cause a hazard. If they are causing a hazard the body corporate has the ability to restrain this.
If it is work the body corporate is responsible for carrying out (usually a building format plan such that the roof is common property) then the owner should not be carrying out the works. To do so would ordinarily amount to a contravention of the by-laws. In this circumstance the body corporate should write to the lot owner to:
- protect its position from any liability claim if there was an injury; and
- meet its obligations to enforce any by-law contraventions.
Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129
This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753