A Qld lot owner would like to know who pays for accommodation when vacant possession is required for repairs to common property. Frank Higginson, Hynes Legal provides the following response.
Table of Contents:
- QUESTION: Who is responsible for accommodation costs when a lot owner vacates for a builder to carry out repairs under warranty?
- QUESTION: Can our Body Corporate demand Vacant Possession to undertake waterproofing repairs to common property? With no choice to stay in the unit, shouldn’t alternative accommodation be supplied at their cost?
Question: Who is responsible for accommodation costs when a lot owner vacates for a builder to carry out repairs under warranty?
The builder is replacing the laminate flooring installed during construction. The same flooring was installed in all units.
Some 70 of 325 owners have reported delamination or movement due to an uneven slab. In most cases, repair is not an option given the extent of delamination.
The developer is an international company that operates globally and the builder is a large Australian company that operates nationally.
Who is responsible for accommodation costs when a lot owner vacates for a builder to carry out repairs under warranty?
Answer: Lot owners may have rights against the builder for the displacement costs
Lot owners are responsible for the maintenance of their lot – which would extend to the flooring within the lot. Each lot owner may then have rights as against the builder for the defects in any flooring to be remedied depending on the terms of the construction contract between the builder and the developer and any rights that can be pursued through the QBCC.
Assuming the builder is responsible for remedying those defects, the lot owners may also have rights to consequential damage against the builder (such as displacement costs). However, this will depend on the specific terms of the construction contract and what can be negotiated with the builder.
Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753
This post appears in the February 2024 edition of The QLD Strata Magazine.
Question: Can our Body Corporate demand Vacant Possession to undertake waterproofing repairs to common property? With no choice to stay in the unit, shouldn’t alternative accommodation be supplied at their cost?
Our complex is located in Queensland. Water penetration remediation works have been approved by the Body Corporate through an AGM motion. The complex has a Building Format Plan and is under the BCCM Act & Accommodation Module Regulations.
The Superintendent of the remedial works has requested, through the Body Corporate and the Body Corporate Manager, Vacant Possession of the unit whilst the works are being undertaken. This could take up to 21 days to complete.
There has not been any offer or consideration of alternate accommodation during that vacant possession period. As well as the cost of securing alternate accommodation for the period of time, I also have concerns about the security of the unit and any damage to furnishings and fixtures whilst the contractors are on site.
As our bedrooms and bathroom areas are located at the opposite end of the unit and would not impact on the contractors performing their work on the terrace, I wonder why Vacant Possession has been requested. Can the Body Corporate demand Vacant Possession without alternatives being offered to undertake the waterproofing works to the terrace?
Answer: If vacant possession is needed to carry out the works, cost should be borne by the body corporate.
It is hard to challenge the basis of what works are required without a competing builder’s report.
If vacant possession is needed to carry out the works (which would seem odd if the works are limited to the balcony only) there is an argument that these costs are consequential to the works the body corporate is responsible for, and should be borne by the body corporate.
Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500
This post appears in Strata News #261.
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