Question: Our windows leaked during heavy rain. I’ve explored an option to repair the problem and prevent future damage. I’m even happy to pay for the work, but due lack of response from other lot owners, I’m unable to get approval to proceed. What happens now?
During heavy rain, our sunroom windows leak. Overhanging 2 of the windows are bent, rusted and ineffective corrugated iron ‘shutters’. I recently applied to the Body Corporate for permission to replace these with professionally installed 6cm drip guards that I would pay for myself. The application was not approved. Our Strata Manager stated that because our complex does not have a functioning Committee, all lot owners would have to agree. Two of the five lot owners did not respond at all, even with extra time given for deliberation.
- Who is responsible for the repairing the problem. Is it me or the Body Corp?
- If two lot owners don’t respond, are they abstaining from voting, or is a non-response automatically considered a negative vote?
- If some harm is done to the inside of the unit because of future rain leakage, who is responsible for the cost of repairs if I have taken all reasonable measures available to me to prevent this?
Answer: The leaking sun room is the least of your problems – it is just a symptom, not the disease.
Ah, the good old ‘non-functioning committee’! The leaking sun room is the least of your problems – it is just a symptom, not the disease. First, considering sacking your strata manager and getting a new one at the next annual general meeting. Being in this situation is indicative of, but not necessarily conclusive evidence of, a lazy, incompetent or avaricious strata manager. Next, get proper legal advice, for yourself; odds are that the body corporate is liable for the maintenance. After that, get a copy of the Body Corporate roll from the strata manager and contact each lot owner, including the ones that voted. Explain that while there is a current problem with your sunroom windows, there is a larger problem in that the committee is not doing what it is supposed to be doing; i.e. making decisions, either at all, or in a timely way.
You can then explain to each lot owner that there is an easy solution and a hard one. The easy solution is that the lot owners take the steps to get the committee in order and functioning. The hard one, is that you are going to force that to happen, by undertaking all of the following steps below; which you can then explain to them, in detail. If that does not fix the problem, you then call a committee meeting, or a general meeting, to vote on your motion that proposes the way to fix the windows.
Depending on which regulation module your scheme is regulated by, you may be able to call such a meeting by yourself, with a neighbour, or at worst two neighbours. A general meeting may be best, because you could not vote on your own motion at a committee meeting, due to a conflict of interest.
Further, at a general meeting you can ‘confirm’ each committee position (so that the lot owners can then ‘function’ as a committee whether they like it or not) OR you can consider appointing a strata manger to act in place of the committee (I would not recommend appointing your current manager – refer to my comments above).
If the motion to fix the windows passes, then that’s great. If it does not, you can then commence dispute resolution in the Commissioner’s Office. If this is just the latest in a long line of issues, consider asking the adjudicator for the appointment of an administrator to the Body Corporate. An administrator can bang the Body Corporate into shape, and get things moving again. If however this is the first problem arising from the ‘non-functioning committee’ it will probably take a few more disputes, resolved in the Commissioner’s Office, before you can get an administrator appointed. Of course, the aim here is to get the lot owners functioning as a committee. There can be many reasons that they are not, and speaking with your fellow lot owners will help you get a handle on what those reasons are. Resolving things consensually is great, but its hard to get consensus (for example) from an absentee investor owner, who lives overseas and always opposes any body corporate money being spent… That is why, in some cases, you have to blow things up, before you can fix them.
Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280