Question: Who is responsible for repairing a garage door damaged by an owner, occupier or their invitee?
Under a Building Format Plan, the body corporate is responsible for maintaining garage doors. But what happens when the damage is caused by an owner, occupier or their invitee rather than fair wear and tear?
In that situation, is the owner or occupier liable for the repair cost? And if so, what steps can the body corporate take if that person fails to act? For example, can the body corporate arrange the repair itself and recover the cost from the owner or occupier, and if payment is not made within a reasonable timeframe, commence legal proceedings to recover the debt?
Answer: Ultimately, the best thing to do might be for the Body Corporate to instigate a conversation with the owner about what the realistic options are.
The first thing to establish is whether the owner has admitted liability or whether there is clear evidence that they caused the damage. Without this, it is difficult to say that they are responsible and it may be that the Body Corporate has to accept the costs.
Next, it has to be considered whether an insurance claim can or should be made. What is the cost of the repair? Does it exceed the excess? The owner has paid for their part of the body corporate insurance so they are entitled to make a claim if they want. If a claim is applicable then it is likely that the owner would be responsible for the excess with the insurer paying the rest.
If that’s the outcome, so be it. However, this solution can cause some problems for the Body Corporate. More claims push premiums higher. They can lead to insurers not wanting to insure the scheme. The Body Corporate might want to make a value judgement here. If the claim is for, say, $1000 and the excess is $500 perhaps an agreement could be reached with the owner where the owner pay the excess and the Body Corporate pay the remainder. It’s not ideal, but it might still be a better outcome for the Body Corporate overall to accept a $500 cost now against a saving on a higher insurance premium later.
If it is not an insurance matter, take a look at your by laws. Do you have any clauses in the by laws that allow the Body Corporate to recover costs, particularly in the event of a breach of a by-law? Perhaps the owner could be sent a breach of by-law notice. If you have a quote for the repair, it could be sent to the owner.
After that, things can get interesting. The Body Corporate has an obligation to repair and maintain the common property, so by implication it should undertake the repairs and, if it wants to recover its costs, go through the legal procedures afterwards. However, here you have a situation where a garage door is damaged. Probably it only affects the one lot. It may not be correct, but if they think the risk is low many Body Corporates may choose to leave the matter until the owner takes action. That action could be to repair the door or it could be to instigate legal action against the Body Corporate. The owner might win if they make a claim, but if the Body Corporate if sufficiently phlegmatic they might see that as a reasonable risk.
Other Body Corporates might choose to undertake the repair, but issue the owner with an invoice. They could list it as a debt against the owners lot. Is this correct practice? Maybe not, but if the owner is responsible and not holding up their hand some body corporate’s might see this as a reasonable way to put pressure on the owner.
The Body Corporate might also consider that the owner has an obligation to maintain their lot in good condition and that they are entitled to take action if this is not happening. They can look to reclaim costs in that instance. To do so they should go down the legal channels available.
Ultimately, the best thing to do might be for the Body Corporate to instigate a conversation with the owner about what the realistic options are. Some owners may be very reluctant to accept any costs, but the Body Corporate needs to point out that the more costs it bears the higher levies will have to go. The owner may benefit if the Body Corporate pays the costs in this instance, but then lose out when the Body Corporate pays the next owner and the next owner after that. The owner should be happy that the Body Corporate is diligently assessing issues and doing what it can to control costs for owners – that’s to their long term benefit. Not all owners can appreciate this but the matter is at the heart of body corporate administration and if owners can understand that, the scheme will be in a healthy position.
This post appears in Strata News #615.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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