QLD: Q&A Responsibility to Repair Common Property and Defects

In our apartment building, a faulty fire hydrant burst and caused water damage to apartments across multiple floors. Apartments have a mix of hybrid flooring and carpet tiles. Our corporate body has arranged for specialists to remove moisture from the building structure. Dehumidifiers and fans are running 24 hrs around the building and within units.

Who is responsible for carpets and hybrid floor removal and replacement? Where fans are located in units, who is responsible for the excessive electricity use? Does the body corporate insurance provide temporary accommodation for the duration of the repairs?

Answer: Where the strata insurance does not respond to the damaged flooring, the costs and responsibility for removal and replacement fall to the lot owner and their contents/landlord’s insurance.

Carpets and other temporary flooring (such as floating floors) within an owners’ lot are considered contents items and are not covered by the strata insurance. The exception is floating floors. Some strata insurance policies include automatic or optional cover for floating floors. Where the strata insurance does not respond to the damaged flooring, the costs and responsibility for removal and replacement fall to the lot owner and their contents/landlords insurance.

Excess electricity usage for drying equipment is generally claimable. You will need to substantiate the excess usage; potential ways to do this is either by showing the actual increased usage on the next bill compared to the previous year’s bill, or the contractor may be able to provide details of the electricity usage of their machines.

Temporary accommodation for owner occupiers is generally covered by strata insurance if the property is deemed uninhabitable due to damage to the building and/or during the repairs. This is an automatic cover for most strata insurance policies on the market. However, the strata insurance will not respond to temporary accommodation costs for tenants or if the unit is uninhabitable due to damage to contents, such as carpets and/or uninsured temporary flooring. However, landlords can generally claim loss of rent for the period a tenanted lot is uninhabitable due to building damage and repairs.

It’s important to understand that strata insurance will not cover loss of rent or temporary accommodation if the property is uninhabitable solely due to damage to items not included in the policy, such as carpets. However, these costs may be covered by the property owner’s landlord insurance or contents insurance, particularly if there is an extension in the policy for loss of rent or temporary accommodation.

In this instance, we suggest the building speak with their broker for specific advice about their claim and circumstances.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

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.

March 2024 edition of The QLD Strata Magazine.

Question: Our car park spaces are exclusive use, and the rest is common property. Who is responsible for cleaning the car park?

The December 2023 edition of The QLD Strata Magazine includes an article by Will Marquand about cleaning garages. The Q&A indicates that the body corporate is responsible for the cleaning. In my present building, it’s assumed that since the parking spaces are assigned to units and numbered accordingly, they are part of the unit’s exclusive use area. As such, owners are responsible for cleaning their parking space, and the body corporate cleans the rest of the common area. Is this correct?

Answer: Schemes have committees to find a pathway through these issues.

Maintenance of exclusive use areas is generally the responsibility of the lot owner, so the interpretation here sounds correct.

For reference, see the below link for a handy guide on exclusive use responsibilities: Exclusive use – maintenance responsibilities

However, you also have to consider the practicalities of building management.

We don’t know the set-up of your building. Still, if we considered an underground car park with common property and exclusive use spaces, it may be difficult to arrange an annual pressure clean where each owner was responsible for the costs of cleaning their own exclusive space. It’s hard to oblige owners to pay individually, and the benefits of the cleaning will be lessened if you choose to have your space cleaned, but your neighbours on either side don’t. In these circumstances, the body corporate might organise to clean the whole area, including the exclusive use spaces, and cover the costs.

You can argue about the technical correctness of this but provided you achieve a wider benefit and owners aren’t unfairly disadvantaged, this doesn’t seem like an unreasonable action. In other circumstances, an alternative system may be more appropriate. If you had a building where only half the lots had parking spaces or access to the car park, you might need to introduce a set-up that only applied the cost to the lot owners with spaces. Finding a pathway through these kinds of issues is what schemes have committees for, so if you have questions about your site, refer them to the committee and see what the response is.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

March 2024 edition of The QLD Strata Magazine.

Question: Water has entered a unit and caused water damage during a recent SEQ storm. Is the investigation and rectification of the water damage the responsibility of the lot owner or body corporate?

Our 8 year old complex has 10 units. After the Boxing Day storm, water entered a unit through a large gap between the balcony skirting tiles and the balcony wall and through multiple long cracks on both the balcony wall ledges’ interior and exterior sides. The unit now has water stains in the downstairs bedroom. Is the investigation and rectification of the water damage the responsibility of the lot owner or body corporate?

Answer: You need to review your building documents.

There are a number of factors that can affect responsibility, and to determine these, you need to review your building documents.

As a starting point, consider whether the building is standard format or building format.

You should be able to check this on your CMS, although sometimes this information is not obvious.

The BCCM website has excellent guides on responsibility for each format:

Standard format plan maintenance

Building format plan maintenance

After that you need to consider whether there may be any exclusions to the guides.

Is the balcony designated as an exclusive use area? If so, it may affect responsibility. Here is a good guide to exclusive use areas: Maintenance of exclusive use areas.

Are there any by-laws that may designate the responsibility to one party or another?

Has the lot had any alterations that may confer responsibility on either party? If property owners, either past or present, have done renovations, they would be responsible for them.

You may also want to consider whether factors such as negligence on behalf of the lot owner may have affected the property’s condition. The body corporate may still be obliged to undertake repairs in this instance but may seek to on-charge to the lot owner.

If you have a body corporate manager, they should be able to review these factors for you and advise responsibility. They should hold all the relevant documents and be able to provide you with advice based on the evidence available.

If you are self-managed, the Committee will need to consider the issues and provide advice.

You can also consider engaging a strata lawyer to provide help if required.

The above may seem like quite a lot. It mostly involves working through the evidence and checking against the legislation. If required, engage experts and follow the information they provide.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #678.

Question: In a residential building, is the body corporate obligated to regularly remove severe brake dust buildup in a large underground, two-level car park?

Answer: Most people expect body corporate property to be reasonably clean and tidy.

The body corporate must maintain the common property in a good and structurally sound condition.

This isn’t a structural condition, so you have to consider what is ‘good’. You may get a different range of answers here, but I think most people expect body corporate property to be reasonably clean and tidy. Most body corporates will arrange periodic cleaning of the car parks to achieve this. Perhaps there are some health or safety concerns if the dust is sufficient to affect the physical condition of users of the site or equipment, such as vents in the area.

So, what can you do as an owner? The starting point is to contact the body corporate and ask for the cleaning to take place. If that request doesn’t progress, you may need to formalise matters. If possible, it would be helpful for you to get a quote for the cleaning. If you are just one owner and the scheme is large, it is not always easy for a job like this. You can then submit an owner’s motion for the committee to vote on at their next meeting or via a VOC. Once you submit a formal owner’s motion, the committee at least have to consider this within six weeks or provide you with a reason why they can’t. If you have a quote, the motion could be to approve it. If not, the motion could be that they get quotes and vote on one. Alternatively, you could submit a motion to the next general meeting for all owners to vote on. Bear in mind the meeting could be over a year away, depending on where you are in your AGM cycles and the needs of your scheme.

You can also submit a claim through the Commissioner’s Office. If you do so, it is helpful to have submitted a committee motion first. If your motion has been rejected, you will have a definite point to dispute – a fulcrum for the case rather than just a general complaint. Follow the disputes procedure and see where you get to: Queensland Government: Disputes in a body corporate.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the December 2023 edition of The QLD Strata Magazine.

Question: Who is responsible for water pressure limiting valves installed in some lower level lots in our high rise building?

Our building is 30 levels high, and the hot water system is on the top level. The system is recirculating, so there is no hot water pressure reduction valve on the building infrastructure like on the cold water infrastructure. Pressure limiting valves have been installed on each lot from level 10 down. Are these limiting valves the responsibility of each owner? They are inside the lot boundary even though they replace what would be on the building infrastructure.

Answer: This would be the lot owner’s responsibility.

Section 180(4)(a) of the Standard Module (which is mirrored in the Accommodation Module) provides that:

180 Duties of body corporate about common property

the owner of the lot is responsible for maintaining, in good order and condition, utility infrastructure, including utility infrastructure situated on common property to the extent the utility infrastructure—
1. relates only to supplying utility services to the owner’s lot; and
2. is 1 of the following types—

It would appear that the pressure limiting valves on levels 1-10:

solely service the lot in which they are located; and

is part of the hot water system.

Accordingly, it would be a lot owner’s responsibility. If there were evidence that the reduction valve for a particular lot benefitted the entire system, it could be argued that the valve does not just service one lot, and the body corporate would be responsible (as the valve would then not meet the above requirement and fall within the definition of common property in section 20 of the BCCMA).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: An engineer’s report has confirmed we need to carry out major works to remediate footings in at least two of our six lots. What is the committee’s next step?

Following observations of external wall cracking, the committee enlisted an engineer to inspect all lots and provide a report. This report details the requirement for remediation of footings to at least two of the six lots and recommendations for preventive actions.

What is the committee’s next step? Should they communicate the report to all lot owners, hold a special meeting, and propose a remediation plan, including a cost forecast and suitable contractors? Could an insurance claim be lodged? The lots need to be vacated while the work is conducted. Who pays for relocation and other costs during construction?

Answer: Before obtaining quotations for remediation, develop a detailed scope of work incorporating the engineer’s recommendations and all other consequential work needed to achieve the desired result.

Todd Garsden, Mahoneys:

It is good that the committee has taken this step and obtained a list of remediation works that need to be undertaken.

Now that the committee has that list, it firstly needs to determine whether it or particular owners are responsible for each item of remedial works. This will require a consideration of the cause, the type of survey plan (BFP or SFP) and the maintenance obligations in the module. The committee may wish to obtain legal advice in this regard.

Once the committee understands the maintenance responsibility:

Work for which the body corporate is responsible – quotations would need to be obtained for the remedial works. Depending on the cost and the body corporate’s spending limits, two quotations would need to be considered, and a general meeting may be required;

Work for which the owner is responsible – approach the lot owner to determine if they will carry out the work or if they would like to appoint the body corporate to carry out the work on the owner’s behalf (which may be more suitable if some of the works cross over or if there are economies reached by carrying out the works as a single project). If the body corporate is appointed by the owner to carry out the work, the associated costs still need to be paid for by the lot owner and approved properly (which again may need a second quote and a general meeting). This also requires a service agreement to be prepared and approved by the body corporate and lot owner.

If we were able to review the report that has been obtained, CMS and survey plan, we would be able to confirm the maintenance responsibilities, the need for a general meeting and the need for a second quote.

Insurance typically does not extend to maintenance issues, but this should be explored with the body corporate’s insurance broker.

Bruge McKenzie, Sedgwick:

To further add to the comments from Todd, it is agreed that some further investigation is required to determine the responsibility of the specific issues between lot property and common property. It is inevitable, however, that the issues listed would most likely relate to common property.

What is important prior to obtaining quotations for remediation is to develop a detailed scope of work incorporating the engineer’s recommendations and all other consequential work that will need to be done to achieve the desired result. This often involves disturbance to other building elements and rectification works to return the site to the same condition. This is often missed by contractors providing quotations if there is not a clear comprehensive document to guide them on the expectations of the OC. Any additional work then becomes an unplanned further expense as a variation to the initial quote or an added expense to engage other contractors.

Unfortunately, we see this occur regularly where it is far more economical to get it addressed early prior to any work commencing. A building consultant can prepare a scope of work where all building elements are considered and combined into a single document.

As Todd has pointed out, bundling work together is the best approach. This will provide value and minimise risk when dealing with a single contractor. A scope of work can easily be divided into portions if different parties are responsible for funding different areas, where it would remain a single contract where the OC would benefit from a single warranty for the works. This reduces the risk of multiple contractors cross blaming each other if an issue arises during the works or after completion.

Review of the quotations received is also critical to ensure they present the best value beyond just cost, including items such as proposed methodology, disturbance to occupants and duration to complete. And finally, oversight of the works is the most critical element to reduce the risk of the OC ending up in the same situation in the future. Even if a contractor is reputable with a demonstrated history of good work, a professional set of independent eyes gives the assurance to both the OC and the contractor that the risk of either party needing to revisit works is minimised.

Project Management covers all of these aspects and can include a cost estimate to assist in cost forecasting. We would certainly recommend engaging a Project Manager to guide this process. Sedgwick can assist if required.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

Bruce McKenzie Sedgwick E: bruce.mckenzie@au.sedgwick.com P: 1300 735 720

This post appears in Strata News #664.

Question: A copper pipe has been cut and stolen from an external wall in our strata building. Is the owner or body corporate responsible for repairing and replacing the pipe?

Answer: If a copper pipe has been damaged/removed/stolen, it is not in good condition and needs to be remedied.

The body corporate is responsible for ensuring that common property is kept in good condition. If a copper pipe has been damaged/removed/stolen, it is not in good condition and needs to be remedied.

Utility infrastructure automatically forms part of the common property unless it only services one lot and is located wholly within the lot. Assuming the lots in the scheme are created in a building format plan, I am going to assume the external pipe forms part of the common property – which would make the body corporate responsible for the replacement.

However, this may be a different answer if:

the lots in the scheme were created in a standard format plan;

the lot owner installed the pipes; or

the pipe only services a single lot and is connected to a device.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #654.

Question: Can a Body Corporate pay compensation to an owner during renovations?

Answer: The body corporate cannot voluntarily pay any compensation to an owner or occupier.

There seems to be an increasing number of bodies corporate carrying out major repairs that require the lot to be vacant for a short time as the lot is essentially a workplace.

Not surprisingly, occupiers want to know if their alternate accommodation will be paid by the body corporate, and landlord owners want compensation for lost rent.

The position is that the body corporate cannot voluntarily pay any compensation to an owner or occupier. This is because a body corporate’s powers are limited by legislation, which only allows body corporate funds to be spent on administration and operating costs or for the replacement or maintenance of property. There is no scope for paying any amount to an owner or occupier, just like there is no power to pay for Christmas parties or voluntarily maintain a path on another body corporate’s land.

It is also clear that an Adjudicator has no power to award compensation.

It is unclear whether a Court would award damages to an owner or occupier affected by works required to comply with the body corporate’s statutory duties to maintain the premises, where there has not been a breach of those duties.

Meghan Meloni Mathews Hunt Legal E: meghan.meloni@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #652.

Question: The waterproofing membrane for a planter box appears to have failed. The body corporate committee is reluctant to investigate in case the report states repairs are required. What is the body corporate’s duty to investigate?

Our scheme has a large, 20 year old concrete planter box sitting on the common property podium with the original waterproofing membrane. There is no doubt the body corporate is responsible for maintaining the box in good condition.

The elastomeric paint on the walls immediately below the box is continually blistering in many spots. The blisters leak water when pierced. The basement car park immediately below these walls has water running into it. The seepage is causing damage.

Two professionals have carried out visual inspections. They have reported the membrane in the planter box has most likely failed, and if so, this is causing the paint to blister and the water ingress into the basement carpark. The reports indicate that the situation will get worse unless rectified. Both professionals recommend inspection by water leak specialists to confirm whether the planter box is the source.

The committee opposes proceeding because of possible rectification costs.

Does a body corporate have a duty to investigate the probable cause of a breach of statutory duty to maintain, and if so, does it seem we may be at that stage with this planter box?

Answer: Indications the body corporate may be responsible for remedial works is sufficient to trigger a duty to investigate.

The key issue here is that there are already indications the body corporate may be responsible for remedial works. This is sufficient to trigger a duty to investigate. If that investigation leads to work the body corporate is responsible for, it is required to carry out the work – irrespective of the cost. Just because the body corporate is unaware of failing to meet its statutory maintenance obligation does not mean it is discharging it. The maintenance obligation is a strict one, as set out in Klinger & Anor v Body Corporate for Costa D’Ora Apartments:

The statutory duty imposed on the Body Corporate … is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly. Failure to do so, once aware, gave rise to a breach of its duty.

The duty to investigate has been discussed by adjudicators as follows:

In The Reserve [2017] QBCCMCmr 304 the adjudicator provides (our emphasis):
It is evident that the respondent is aware of its obligation under section 159 of the Standard Module to maintain common property. Similarly, the respondent is aware that under section 281 of the Act, a person who suffers damage to property because of a failure by the body corporate to do so, may seek an order that the body corporate carry out stated repairs or seek reimbursement.
Accordingly, I have made orders requiring the body corporate to engage a suitably qualified professional to investigate the claimed water leak into the main bedroom of lot 16. If the investigation reveals that water is penetrating lot 16, the respondent is to undertake repairs and meet the reasonable cost of repairing damage to the main bedroom that can be attributed to a failure by the respondent to maintain common property.

In Ashfield Apartments [2018] QBCCMCmr 117, the adjudicator provides (our emphasis):
However, Morgan recommends exploratory work which may lead to repairs being carried out on common property which may remedy damage to the building and/or Lot 4. In my view, the body corporate has a statutory duty to have this work carried out. I have given the body corporate three months to have the investigations conducted as recommended by Morgan to the extent those investigations relate to common property plumbing, down pipes and drainage systems, and to the extent the site investigation relates to a soil test. The spending to have the investigations conducted may be approved by the committee if it is within its spending limit (the statutory limit on committee spending is $200 multiplied by the five lots or $1,000). Otherwise it will require body corporate approval at a general meeting or via section 111 of the Act.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the June 2023 edition of The QLD Strata Magazine.

Question: Our flooring has been pulled up to repair moisture in the slab. Who pays for the removal and replacement of the flooring? Can we claim this on strata insurance?

My duplex has tiled floors covered by self-levelling concrete and hybrid flooring. The hybrid flooring has been pulled up because the concrete slab holds too much moisture. If we have to remove the self-leveller and tiles and a moisture barrier put in place before relaying the hybrid flooring, who is responsible for this cost? Can we claim these costs on strata insurance?

Answer: The nub of the question is the cause of the water in the slab.

The nub of this question is whether the concrete slab is defective by virtue of it retaining too much water or being exposed to water from outside the lot when it should not be. For example, if the lot is on the ground floor, the owner could investigate whether there is a cause for the moisture which the body corporate is responsible for, i.e. a leaking pipe on common property or an inadequate or absent moisture barrier below the slab.

If the concrete is within acceptable tolerances or there is no evident cause which the body corporate is liable for, then the issue is with the improvement made to the unit in the form of the self-leveling concrete and hybrid flooring. The owner is responsible for that as it lies above the boundary line between the unit and the unit / common property below, which is the midpoint of the concrete slab. From the perspective of the body corporate as the other potentially liable party, I suspect the argument would be that it’s not the body corporate’s responsibility to install a waterproofing membrane inside the lot so that the owner can put down a (moisture sensitive) flooring of their choice. Which way this goes will depend on a sufficient and reliable investigation of what is happening in the lot or common property below, plus some concrete testing.

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

This post appears in the June 2023 edition of The QLD Strata Magazine.

Question: During the sale of our apartment, the purchaser’s building report indicated a leak in the roof. The body corporate manager’s delay in securing a plumber has placed the sale in jeopardy. Can we insist a plumber attend immediately?

We are in the process of selling our apartment The purchaser instigated a building report. The report came back showing water damage in the ceiling on the top floor which is coming from the roof and water damage on the wall in the laundry.

We are waiting for the body corporate manager to arrange for a plumber to inspect the roof, however, we have had a specialist plumber inspect the laundry and they have found that it is an external issue whereby there is a major leak in the common downpipe and awning which is permeating the concrete into our apartment.

The body corporate manager has advised they can’t get a plumber to attend for weeks. This has placed the sale in jeopardy. We have paid $3000 in advertising costs to sell the property. Can we demand that a plumber attends immediately?

Also, if the report indicates it is most definitely a body corporate issue, can the committee refuse to undertake the repairs?

Answer: You can demand a plumber to come sooner but that does not mean it can necessarily take place faster if a plumber is not available.

Yes – a lot owner can demand a plumber to come sooner but that does not mean it can necessarily take place faster if a plumber is not available.

If the reports clearly show the defect and cause of the water ingress relates to an item that the body corporate is responsible for repairing, then the body corporate has an obligation to carry out the necessary remedial works – there is no discretion available.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: Our building is 18 months old. During regular inspections, our fire services company has identified a number of non-critical and non-conformance fire defects. Who is responsible to fix these defects?

Our seven lot building was completed in mid 2021. We engaged a fire services company that carried out their 6 monthly inspection at the end of 2021. There were a number of non-critical and non-conformance defects identified and the yearly inspection in mid 2022 reaffirmed these defects, plus identified additional defects.

We are perplexed to receive a bill for $3,500 to remedy defects on a new build. Who is the overarching entity where we can check our rights concerning the items raised? The builder has stated these items are out of warranty and not their concern.

Answer: It appears unusual for an installation to be non-compliant within the first 6 months of occupancy.

Without any details about the nature of the defects, it is impossible to comment, however in saying that, there are two types of defects, normal wear and tear or damages and defects / non- conformances that relate to the original installation. Normal wear and tear items are the responsibility of the owner / occupier or in this case, the Body Corporate.

It appears unusual for an installation to be non-compliant within the first 6 months of occupancy. Should the defects relate to the original installations, then the responsibility is with the installer who certified the installation as compliant.

The QBCC is the managing body and provides information, advice and regulation to ensure the maintenance of proper building standards and remedies for defective building work.

Stefan Bauer Fire Matters E: sbauer@firematters.com.au P: 07 3901 8203

This post appears in Strata News #624.

Question: An owner has offered to pay the substantial cost of further building investigation following a defects inspection. Can the Body Corporate accept this offer and are there any problems with this? Our building is under the Accommodation module.

Answer: If the statutory obligation of the body corporate has been breached, then it may be open to the owner to ask for that money back in due course after the investigation.

I suspect there is a bit of context that I may be missing here but it is open to the body corporate to accept an owner paying for something to be done – but it might need to be aware that if it is a statutory obligation of the body corporate that has been breached, then it may be open to the owner to ask for that money back in due course after the investigation.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #619.

Question: The BC has been aware of leaky windows in our building for years. They have carried out some patch jobs but the windows still leak. The Committee has submitted a motion to pass responsibility to the Lot Owner. Can they do this?

Our building has identified building issues on our balconies. We are outside the contractor’s warranty period.

Our Body Corporate has been aware of the issue for years and, rather than follow the scope of works provided to them, they opted for a cheaper patch job. They exceeded the approved spending amount and then, without approval, paid an additional $60k.

The balconies still leak into the apartments. The windows have been installed incorrectly and water drains into “timber” architraves. The Body Corporate have submitted a motion for the upcoming EGM stating they are rescinding on any costs involved with the window repairs.

Isn’t this the responsibility of the Body Corp due to it being a building defect?

Answer: Evidencing causation is the key issue.

If damage or deterioration to the lot is caused by the body corporate’s failure to remediate part of its maintenance obligations, the body corporate would also be responsible for remediating that further damage or deterioration. Evidencing that causation is the key issue though.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: Can a step down and membrane compensate for lack of slope causing pooling on a balcony?

Answer: When you are addressing an issue in relation to a balcony, a sliding door or a cavity, we don’t recommend dealing with issues in isolation.

An adequate step down and membrane system will prevent water from going laterally into the sole occupancy unit.

However, if you’ve got substrate or fall (slope) issues in your actual balcony itself, that potentially creates its own issues, for example, a slip hazard. If you’ve got water that is never receding and pooling in an area, you’ve got a loss of amenity. You can’t go out onto the balcony in your socks in dry weather and traverse that area.

It also has the ability to promote efflorescence leaching out of the minerals that are contained in the bedding material and the grout joints. You’re going to have unsightly efflorescence coming around the grout joints in your tiles. If it’s left for an extended period of time, this has the ability to break down the bond that exists between the adhesive of your tiles, your bedding material, and of course, your membrane as well. A bedding system is intended to drain and not remain saturated, if the substrate or surface of the floor is not adequately drained there is a high risk of degradation of the system.

The answer to the question is probably yes and no. It’s not ideal to retain a flooring system that features a lack of fall however if it isn’t resulting in a loss of amenity or water ingress below or beside, this is often not resolved by building owners out of cost vs necessity considerations. When you are addressing an issue in relation to a balcony, a sliding door or a cavity, we don’t recommend dealing with issues in isolation. Our recommendation is to deal with it all in a cohesive way and make sure everything is compatible and compliant.

Please let me know if you have any questions or would like to make changes.

James McIntosh Sedgwick E: james.mcintosh@au.sedgwick.com P: 0415 459 486

This post appears in the November 2022 edition of The QLD Strata Magazine.

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

This post appears in Strata News #606.

Question: For the past 6 months, the roof over my designated car space in our garage is leaking and causing damage to my vehicle. I asked for the roof to be fixed and/or a visitor spot to be temporarily reallocated to me. The committee/strata management refused both.

Answer: Can you force the body corporate to undertake the repair? It’s difficult, but ultimately yes.

The First question to answer is whether the roof above your car spot is common property. From the description, it sounds like it is, but it’s always worth checking the documents to be sure. You might ask your body corporate manager to confirm this. Have the Committee denied that it is?

If it is body corporate property, then the body corporate is required under the legislation to undertake repairs. Car park leaks are not always straightforward to resolve and may be expensive depending on where they come from, but they still have to be done. An affordable alternative might be to install a drip tray system. The leak won’t be fixed but the water will be carried away from your vehicle. Have repair options been considered and presented to the committee? Maybe you need to get your own contractor in to take a look and provide a quote if it would help move things forward.

Can you force the body corporate to undertake the repair? It’s difficult, but ultimately yes. Start with your body corporate manager and see what their advice is. They might help advise the Committee of the responsibility to undertake the works which might make a difference. Otherwise you could table a formal letter to the committee, noting the issue and requesting the repair. Ask for this to be included at the next committee meeting. If you get your own quote and submit the matter to the committee or to the next general meeting, a vote could be held.

Still, it seems like you have made a reasonable attempt to resolve the issue, so maybe the only avenue left is to file your complaint with the Commissioner’s office seeking resolution. Make sure you get all of the necessary information to show that it is a body corporate repair. If you are really serious, you could get a strata solicitor to help you. File the application and let the wheels of justice take their course.

In terms of your vehicle, it could perhaps be considered that the body corporate has been negligent in not undertaking repairs in a reasonable timeframe after being informed of an issue. Perhaps there is a right of claim there. You could include any costs incurred in your application to the Commissioner. Maybe you could inform the body corporate insurer of the issue – they may not cover your vehicle but they are rarely happy to know about unresolved repairs. Perhaps your own insurer might help you with recovering any costs. There’s no definite answer but start asking questions and put the information out there.

As you are aware of the issue, you should probably stop using the space – obvious advice but still worth noting. That might be inconvenient as you have also been refused permission to park in the visitors spots. You may have to park offsite, but that sounds better than using your space.

Lastly, it’s always worth taking a step back and considering the big picture. Is there some miscommunication here or some particular reason the repair is being refused. After all, the matter sounds reasonably straightforward and most body corporates would just take care of it. Maybe have a think about what’s stopping the Committee from authorising the repair here. Are they being cheap or is there another reason? Have they given you any rationale when explaining why the repair is not required. It can be had when you are close to an issue, but think through the context and perhaps you can find an avenue of resolution.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #604.

Question: How do you prevent water from coming through slip joints?

A: A sealant is a product that does have a lifespan. It doesn’t last forever.

Generally, slip joints or articulation joints should be sealed properly. Regarding sealants, silicone is the word most people are familiar with but there are also some higher grade sealants that are used particularly in construction on walls and concrete slabs.

A sealant is a product that does have a lifespan. It doesn’t last forever. Eventually it would have to be removed and replaced if it’s accessible. Generally speaking, it shouldn’t leak if that sealant has been applied properly.

If you are experiencing a problem with an articulation joint or a slip joint where there is a leak occurring, it is certainly worth getting someone to replace that sealant in the first instance to try and rectify the problem. If this solves the problem, this is a relatively inexpensive repair as opposed to a structural crack or something in a slab. Things like injection fixes are a lot more expensive.

Bruce McKenzie Sedgwick E: bruce.mckenzie@au.sedgwick.com P: 1300 735 720

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: If some windows are missing flashing but not leaking, are we required to rectify this problem so the building is compliant?

We live in a complex of 4 townhouses, built in 2003. As the building code has changed over time, our windows no longer comply. There is no flashings on the windows and a few of the units have experienced rainwater coming inside. Is it a requirement that all windows have to be brought up to new code compliance?

Answer: If there are windows that you believe do not have flashing, but there are no water penetration issues, there is no compliance requirement to rectify the situation.

Good building practice would always have required flashing to be installed at the time of construction. While I don’t have the specific details of your building, flashings are typically independent of the window, as they are bricked in.

Cavity construction requires the installation of flashing above and below the window and it’s the failure of the head [above] flashing that typically is the cause of water penetration issues.

If there are windows that you believe do not have flashing, but there are no water penetration issues, there is no compliance requirement to rectify the situation.

Gary Stevenson Windowline E: info@windowline.com.au P: 02 8304 6400

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: My roof has been leaking for 7 months. While the body corporate says they will fix the leak, nothing has been done. How do we move this along?

My townhouse roof has had a leaking issue for 7 months. The body corporate said it’s the body corporate’s responsibility to fix the leaking roof and they will be address the issue, however, the issue keeps rolling from one committee meeting to another and the defect still has not been addressed.

Can I submit a claim on the body corporate insurance? Will this be a simple or lengthy process?

Answer: Send a letter to the body corporate to put them on notice that if repairs are not completed by a specified date you would consider the body corporate negligent.

From description, this is a building maintenance issue and the body corporate should take care of it. What can you do if they are not?

Firstly, I would send a letter to the body corporate to put them on notice that if repairs are not completed by a specified date you would consider the body corporate negligent and responsible for any costs you may incur including legal fees to have the matter rectified and replacement costs for any damage to your property. This will establish the terms of discussion. You can ask for the letter to be included in the next committee meeting as correspondence.

After that, you can submit an owner’s motion to the Committee either asking for the repair to be done or with a quote to be approved. The Committee would have to consider this within six weeks. You could also submit a motion for all owners to vote on the matter at the next general meeting – you might need to look at the timeline of when this will be. You can also make an application to the Commissioner’s office to require the body corporate to undertake the works and if the matter goes far enough, they can require the body corporate to undertake the works.

All of these methods can take some time and it can be frustrating while the works are incomplete, but they are the legal pathways available. If the matter is serious enough, and you want assistance to get resolution you could engage a strata solicitor to assist you.

Essentially, you have to underline for the body corporate that it has a responsibility to maintain the common property and that you are willing to act if they do not adhere to this obligation. You shouldn’t really have to do this, but sometime it is necessary.

In terms of insurance, every owner is entitled to make a claim against the body corporate policy – owners pay into it after all. Your body corporate manager should provide you with a claims form or you can get one directly from the broker for the scheme.

If you speak to the broker they will probably be able to advise you if the claim is reasonable or not applicable under the policy. If the problem with the roof is just general wear and tear, it probably won’t be covered in the same way that your car insurer doesn’t cover wear and tear issues with your car. If you don’t have one you should be able to get a copy of the policy disclosure statement from your body corporate manager or online. Maybe it is on your scheme’s portal site and you can access it there.

How long will the claims process take? It will depend on a range of factors starting with how complicated the claim is. Then there are factors such as how busy the brokers and insurers are – pretty busy this year as there have been a higher than usual number of claims due to all the storm activity. To make the claim go faster provide as much clear, detailed information as you can when making your submission so that a definitive answer can be provided.

For more information on submitting motions follow the below link: Submitting motions.

To make a filing with the Commissioner’s office follow this link: Disputes.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #577.

Question: Years ago, a lot owner found concrete cancer in their lot. They told no-one and retiled over the area. A new owner purchased and discovered the defect. Is the body corporate responsible for the (now more substantial) full cost of the repairs?

Our apartment block is approximately 50 metres from the ocean. A lot owner in our complex found concrete cancer years ago in their top-floor apartment and didn’t report the issue to the strata or repair the damage.

The owners concealed the concrete cancer by relaying new tiles over the whole area. Now, years later, the lot has been purchased by an investment company and the concrete cancer has been discovered.

Can the new owner hold the body corporate responsible for the full cost of repairing the much larger amount of damage to the floor or does the initial covering up of the concrete cancer in any way lessen the liability of the body corporate? The repair costs will be much larger because of a previous owner’s deception.

Has a similar previous cases come up before?

Answer: If a body corporate is responsible for something, they retain that responsibility regardless of what has transpired in the past.

I’m not aware of any cases, although you can research for yourself at the Australasian Legal Information Institute. Your query is quite specific, so it is possible you won’t find it precisely in a case.

Generally speaking, if a body corporate is responsible for something, such as maintenance or repair of common property, then they retain that responsibility regardless of what has transpired in the past. Equally, if a previous owner is responsible for some damage, then it might be possible for the body corporate to recover costs from the previous owner, although they’d need to seek legal advice on how to do so, and if it is worth it. For example, a body corporate has not maintained a common property driveway over the years because it was going to cost too much money and the committee at the time did not want to spend it. Now a new committee is in place and they are deciding the repair needs to be done and money spent. Just because the maintenance wasn’t done previously, doesn’t relieve the body corporate of its responsibility now.

There are a few things unclear in your query. How have all these things come to light? Are there expert reports to verify it all? Are you sure it is actually a body corporate responsibility to repair? If you haven’t addressed these issues, you should probably do so as a first port of call.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the July 2022 edition of The QLD Strata Magazine.

Question: Our body corporate and caretaker are hounding us to repair a leak at the front of our lot. Our thorough investigations point to the responsibility of the body corporate, however the committee are still insisting we are responsible.

My wife and I are being hounded persistently by our body corp.

We were informed that a leak from a very old reticulation point in front of our two units is our responsibility. The reticulation was installed many years before we owned the lots.

In good faith, we called in the plumbers. The line was pressure tested and was said to be holding the pressure. This was followed by leak testing and was carried out from the valve to the house of both units. The plumber confirmed ‘NO leak was detected’ with a suggestion that the leak was probably caused by runoff from somewhere unknown, possibly not even in our gated complex.

We are still being hounded by the Resident Caretaker. We have already accrued bills for $400 to investigate the matter.

Have we fulfilled our duties in trying to eliminate the perceived problem? What is the next step?

Answer: Take a little time to write a measured response to the Committee and the Caretaker, outlining the history of events and what action you have taken.

From the information provided it seems that you have done what you can in responding to the questions of the body corporate.

It should also be noted that it seems reasonable that the body corporate has asked you these questions – problems only get resolved through investigation.

As a next step, I would take a little time to write a measured response to the Committee and the Caretaker, outlining the history of events and what action you have taken, including all documentation from your plumbers. State that you do not believe this is a matter for your lot to resolve. Ask for your correspondence to be included as an agenda item on the next Committee Meeting with a request that the Committee formally note the information provided and record if that they have no further questions to ask you.

In the correspondence, you can note that you will take no further action on the matter unless the body corporate can provide evidence that a fault exists on your property. You can also note that you believe the behaviour of the caretaker to be inappropriate and request that further correspondence on the matter comes from the Committee.

One thing you might want to consider is what is driving the inquiries of the caretaker. Are they pushing you independently or is the Committee pushing them to push you? You might calibrate your response based on that.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #577.

Question: What are the maintenance responsibilities of a Body Corporate when it comes to water ingress?

Which section of the body corporate legislation refers to the maintenance responsibilities of a Body Corporate for a Queensland Building Format Plan 12 story apartment block under a Standard regulation module?

Our building has a water ingress issue with rain and wind driven rainwater entering from balconies and damaging the building. Once inside, the rainwater accumulates behind internal walls, bubbles paintwork then leaks out from the ceiling and cornices, down walls and soaks into the carpet.

Who is responsible for repairs? It is my understanding the Body Corporate is responsible for maintaining the waterproofing membrane but who has to pay for the damage caused by the water? If the BC pays for the waterproofing membrane, are the Lot owners left to replace carpets, fix walls, repaint etc?

Answer: There is a common misconception that the body corporate is responsible for keeping a building watertight.

Section 180 of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Qld) sets out the body corporate’s maintenance obligations for common property.

The body corporate would only be responsible for the water ingress repairs and damage to the lot if the cause of the water ingress specifically relates to an item the body corporate is responsible for.

There is a common misconception that the body corporate is responsible for keeping a building watertight. That is not the case if the cause of the water ingress is due to something a lot owner is responsible for, which can include (as just some examples):

Improvements made to the lot or common property; or

Defects in the lot (such as the tiles and not the membrane).

For this issue, the first step would be to obtain an expert report which makes a conclusion as to the cause of the water ingress. From there the responsibility can be apportioned to the correct party or parties.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the May 2022 edition of The QLD Strata Magazine.

Question: Who is responsible for cost of repairs to damage caused by a burst or leaking pipe behind a shower wall in a lot?

If there is a burst or leaking pipe behind a shower wall in a lot and any resulting damage only affects that lot, is this the unit owner’s responsibility under their own insurance because the pipe work is entirely within the lot and services only that lot.

If the leak also causes damage to common property, is the owner responsible to repair the common property under their own insurance? Or if the common property is repairable under body corporate insurance, is the owner responsible for paying the body corporate excess?

Where it is found that the leak only affects that lot, is the owner responsible for paying for the investigative work to locate the source of the leak? And is the owner responsible for all repairs unless it can be confirmed that the failing in the waterproofing membrane caused the leak?

Answer: There is a strata insurance policy that the owner has an insurable interest in and they can make a claim.

It is a common misconception in insurance that you need to understand firstly the difference between the duty to maintain and the duty to insure common property and what is and isn’t covered by insurance. An owner is responsible to maintain everything inside their lot, and possibly if there is damage that occurs from that, then legally they may be responsible for that damage. But you need to look at the fact that there is a strata insurance policy that the owner has an insurable interest in and can make a claim.

So what would the strata insurance policy pay for? Keep in mind, anything that is a permanent fixture inside a lot is insured by strata insurance. It cannot be insured under any other policy, including contents. In this instance, if the pipe in that lot solely services the lot and is inside the boundaries of the lot, it is the owner’s responsibility to maintain that pipe and the pipe itself won’t be covered by strata insurance.

Also, in the majority of cases, the exploratory costs associated with finding the pipe won’t be covered by insurance. But the consequential water damage that comes from that claim, will be covered by strata insurance as will the damage to other property as well.

Allow the owner to make a claim under insurance (I mentioned earlier that they do have an insurable interest in the policy so they can claim under the insurance) and anything that’s not covered by insurance should be considered the lot owner’s responsibility unless the property is owned by the body corporate.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the March 2022 edition of The QLD Strata Magazine.

Question: A lot owner carried out cosmetic repairs to concrete cancer in their lot. Years later when the defect resurfaces, is the body corporate still responsible to rectify the defect?

A lot owner found concrete cancer on the floor of their lot. Instead of reporting this to the body corporate, they carried out a cosmetic repair. The concrete cancer has now reoccured years later.

Is the body corporate responsible for the resulting major repair costs if a new owner has now purchased the lot?

Answer: The body corporate is ordinarily going to be responsible for the works to repair concrete cancer.

I think the starting point is that the body corporate is ordinarily going to be responsible for the works to repair concrete cancer. If an owner did a cosmetic repair, then it sounds to me like the actual issue wasn’t addressed, as much as covered up. That cover up would not ordinarily displace the body corporate’s statutory obligations to be responsible for the issue, but that is a question of degree about how ‘cosmetic’ the repair was.

The new owner might have a claim against the old owner with respect to the contract where this issue was not disclosed, but that is between them as buyer and seller – not the body corporate.

The other issue is that if it is in one lot it may be in more, so I would suggest its audit time for that issue!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: Is it a requirement to engage a Project Manager to paint the exterior of the buildings or for any projects or repairs?

Answer: Depending on the size of the project, an independent project manager may help ensure that any works you are arranging are progressed smoothly and correctly.

It’s not a requirement. Depending on the size of the project an independent project manager may help ensure that any works you are arranging are progressed smoothly and correctly.

With any repair and maintenance works, it is important that owners review the scope and contract fully in advance and make sure that their expectation for the works is in alignment with what the contractor is expecting to deliver. Then, it is a question of checking the works while they are in progress and signing off on completion. A Committee can fulfil that function, but an independent project manager will have the expertise to give you confidence that everything is being handled correctly.

Otherwise, most contractors for major works will appoint their own internal project manager for any job. They will be managing and assessing the work of their own company so that needs to be taken into consideration, but their job is still to ensure the works are completed to a satisfactory level.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: A lot owner discovered moisture in carpet and underlay when renovating their lot. The Body Corporate paid for the investigation and fixing leaks. Should the lot owners be reimbursed entire cost of the new carpet?

A lot owner has recently undertaken a renovation of their apartment. This included replacing and upgrading carpet in the bedrooms.

When the old carpet was pulled up the carpet layers found moisture in the underlay and sections of the nail frames along the wall. It wasn’t significant damage and moisture was not noticed before this work commenced.

The Body Corporate arranged for the cause of the moisture to be investigated. It was found to be caused by leaks in the facade and window frames. The cost of the investigation, and the leaks were fixed at body corporate cost.

The lot owner has now requested that the entire cost of the carpet be reimbursed. It should be noted that the new carpet is a better quality than the original.

Is this a reasonable request, or is the carpet replacement an owners responsibility?

Answer: The body corporate is only required to replace the damaged section of carpet with a similar style and quality.

The body corporate may be financially responsible for the replacement of carpet if it is damaged due to issues that a body corporate responsibility, such as leaks in the facade and window frames in a wall that is a boundary with common property in a building format plan scheme. However, the body corporate is only required to replace the damaged section of carpet with a similar style and quality. If the lot owner wishes to replace the carpet with something of better quality, they are responsible to pay the difference in costs.

In this instance, the body corporate’s responsibility will depend on whether the lot owner’s carpet was damaged due to the water leak.

If the carpet was replaced due to damage suffered as a result of the water leak, the body corporate will be financially responsible for a portion of the costs of the new carpet. The body corporate is not responsible for the entire costs of the new carpet if it is of a better quality than the original.

If the carpet was not damaged due to the water leak, the body corporate will not be financially responsible for the new carpet.

It will be difficult for the relevant owner/s to argue that the carpet was replaced due to the water leak, particularly if the body corporate did not have an opportunity to inspect the carpet to establish any damage before it was removed.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #509.

Question: I identified a safety risk and although it’s been voted unanimously at the AGM to fix it, the chairperson has advised he is not going to proceed with the risk mitigation. What do I do now?

In 2020 I identified a safety risk and the AGM voted unanimously to fix it. The body corporate chairperson has advised that he is not going to proceed with the risk mitigation despite the unanimous vote. I fear someone (not least myself) could be seriously injured by the risk.

Can I pay for my own independent professional risk/safety assessment and legally formalise the risk?

Can I take my solicitor to our next Body Corporate AGM?

Answer: A committee has an obligation to put into effect the lawful decisions of the body corporate.

Tyrone Shandiman:

The body corporate has a duty to disclose all things relevant to the insurers decision to insure you. Depending on what the safety risk is and how it has been identified, you may need to refer the issue to your insurer and prospective insurers you approach when the policy next renews.

The Body Corporate should seek further advice from its insurance broker or insurer about your disclosure obligations in relation to this issue.

Todd Garsden:

A committee has an obligation to put into effect the lawful decisions of the body corporate.

A risk exists whether or not there is a report to justify it, however a report would be evidence that the common property may not be in the condition the body corporate is obliged to keep it in and give you a second argument to require the body corporate to perform the work. If you go down this path you should not expect to be able to recover the costs of the report.

You would be able to send your lawyer to an AGM but that will usually be less cost effective than dealing with the outcome of the meeting as a lawyer is usually unable to change the result of any outcome during the meeting.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: We recently had a leak at our rental unit on the Gold Coast. We have been sent the invoice for payment with a detailed description from the plumber. Is this really our responsibility?

We received an account from the plumber who attended our rental unit in a complex on the Gold coast in QLD recently.

His account read: “Isolated water supply to unit and found the main isolation gate valve faulty. Isolated mains water supply to the entire complex. Removed faulty gate valve, supplied and installed new gate valve. Reinstated water supply..”

Who is responsible for this? Is the repair our responsibility or should the body corporate pay?

Answer: Determining responsibility for a repair isn’t always straightforward

Determining responsibility for a repair isn’t always straightforward and in this instance, the information provided probably isn’t sufficient in and of itself to make a final determination, albeit the description is a helpful part of the puzzle.

Without knowing any specific details of the scheme, you would have to consider factors such as the format, where the work took place, why the work was conducted and whether there were any specific by-laws in place that may affect responsibility.

Your body corporate manager would have these additional details and should be able to provide you with a rationale for how they would apportion responsibility.

Speaking more generally, plumbing issues tend to be some of the more difficult responsibility decisions to make. Broadly, plumbing works that service more than one lot would be considered Body Corporate responsibility while those that service one lot only, even if located on the common property, are the responsibility of the individual lot owner. However, that is only a starting point before considering all factors.

The Queensland Government website has some good general advice on repairs: Body corporate maintenance: Queensland Government – Body corporate maintenance

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #466.

Question: Water ingress to a lower unit in our complex has occurred. The owner of the unit that has suffered water ingression wants to make a claim on the body corporate for loss of rent. Is our body corporate liable?

Water ingress to a lower unit in our complex has occurred.

It has been inspected by an engineer and a full report submitted. The bottom line is that the patio tiles on the two units above need to be removed and re-tiled after the new waterproofing seal is installed.

In addition, flashing on the roof has been identified also as a possible cause. The body corporate has made arrangements for repairs to be carried out by qualified contractors.

In the meantime, the owner of the unit that has suffered water ingression wants to make a claim on the body corporate for loss of rent.

It is unknown whether or not he has Landlord and Tenant insurance on the property in question.

Is our body corporate liable for the loss of rental income for the involved unit.

Answer: Owners will have loss of rent cover that can be considered on two policies – Landlords Content Insurance & Strata Insurance.

Owners will have loss of rent cover that can be considered on two policies – Landlords Content Insurance & Strata Insurance.

Loss of rent cover under Landlords Contents Insurance is only considered when the contents insured by the policy is damaged and this causes the property to be uninhabitable. For example, carpet damage is generally considered to be contents (not covered by strata) so the Landlords contents insurance is the policy that should cover loss of rent associated with damage to the carpet.

Loss of rent under a strata building applies when property insured by the policy (i.e. Building) is damaged by a claimable event and the property is uninhabitable. In the case of water damage stated below, if the damage is to ceilings and walls, the strata insurance policy is the policy that should be considered for loss of rent claims.

In the event of a claim that involves contents & building, insurers generally share rental costs which is an agreement by insurers after assessing the facts.

The body corporate has a responsibility to arrange an insurance policy and most policies will cover loss of rent – we recommend a claim is referred to the strata insurer and provided the loss of rent event is claimable the strata insurer will be liable for the costs (not the body corporate).

If the loss of rent is not covered, the body corporate is generally liable in the event of negligence, in which case, further consideration should be placed on referring a claim to the public liability section of the strata insurance policy.

Tyrone Shandiman Strata Insurance Solutions T: 07 3899 5129 E: tshandiman@iaa.net.au

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. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Some residents are having problems with leaking roofs. Who is responsible for fixing the problem?

We live in a complex of 56 townhouses and villas. Some residents are having problems with leaking roofs (they are colourbond) where they butt up to the firewalls. This is caused by two things.

The firewalls (which are not between every dwelling) extend above the roofline and are allowing water to penetrate at the top and sides of the wall due to deterioration from age (25 years old) and;

The flashing that abuts the firewalls (it is also colourbond) of the affected roofs is lifting. Once again due to age and the elements.

The water is seeping down the walls into the affected dwellings causing water damage and mould.

Who is responsible for fixing the problem. It is not covered by the owner’s insurance policy and the Body Corporate are saying it is not their problem either. Our insurer’s say that it is the responsibility of the Body Corporate. Who is right?

Answer: This is always based upon the particular circumstances of the building in question.

Tyrone Shandiman

From a coverage perspective, water damage claims are our most disputed claims as there is often a component that is maintenance and consequential water damage. Long term water damage spanning over many years or not is a common point of contention for insurers. Each water damage claim poses a different set of circumstances and is therefore considered on a case by case basis.

It is not the insurer’s responsibility to advise who is responsible to maintain property for damage not covered by an insurance claim. It follows the body corporate is responsible for determining responsibility in accordance with building plans and applicable strata legislation (Such as section 159 Body Corporate and Community Management (Standard Module) Regulation 2008).

Chris Irons

I know that people always prefer a definitive, clear-cut answer to the question of ‘who is responsible?’ in a body corporate context. The reality is that such an answer is rarely, if ever, that self-evident. It is always based upon the particular circumstances, the building in question, its plan of subdivision and myriad other factors including the advice of experts. Disputes about responsibility for maintenance are usually the most disputed-above matters in the Commissioner’s Office.

If the body corporate state it is not their responsibility then one presumes they have an expert basis on which to say that, e.g., a report. If so then you should be able to see that and then assess if you agree. If you don’t, the onus is on you to evidence otherwise. That may mean getting a quote or obtaining your own expert advice. Ultimately if your positions remain opposed you may need to enter into dispute resolution.

Given that each situation is different, one way to get a guide is to research adjudicators’ orders on the topic. You can search them at Australasian Legal Information Institute and see if there are any which are consistent with your particular circumstances.

Tyrone Shandiman Strata Insurance Solutions T: 07 3899 5129 E: tshandiman@iaa.net.au

Chris Irons E: chris.irons@hyneslegal.com.au P: 07 3193 0500 W: Hynes Legal

This post appears in Strata News #392.

Question: I had a leak in the roof which was repaired, but I am wondering who is required to pay for the damage in the internal ceiling? I’m looking for an example where no insurance claim would exist.

My unit is one of 4 under a small lots module.

I had a leak in the roof which was repaired, but I am wondering who is required to pay for the damage in the internal area resulting from the water ingress. The ceiling is the area with the remaining damage.

I’m looking for an example where no insurance claim would exist.

Wouldn’t section 281 of the BC Act suggest that if a BC has a maintenance issue or lack of it, such as the roof leak that damaged the inside unit, wouldn’t the BC also be responsible for the internal damage. Why would that become a unit owners issue where a building format plan exists.

I don’t understand why the BC responsibility would be limited to the roof fix as the boundary. The roof leak caused internal damage. This scenario is also under a BC in the small lots module in QLD.

Is this a BC responsibility or lot owners?

Answer: You’d need to first demonstrate the body corporate had failed in responsibility to maintain common property.

You’d need to firstly demonstrate the body corporate had failed in responsibility to maintain common property. That is no easy task and is rarely as straightforward as it sounds. You need evidence to back up any assertions – it’s not enough to simply say “it’s body corporate responsibility” and leave it at that.

With that in mind, generally speaking, yes, the body corporate is responsible for maintaining common property and it follows that if they haven’t maintained then they can be responsible for resultant damage. An adjudicator can order either that repairs get carried out or that a payment be made to for reimbursement to the applicant for repairs they carried out, under section 281. There are monetary caps in either case.

You say you are ‘looking for an example’. You can research for examples – there are several – of this kind of thing on the Australasian Legal Information Institute.

A quick note on the term ‘damages’ – there’s no capacity for an adjudicator to make an order in relation to something such as loss of rent in an investment lot or ‘damages’ for loss of income. Those will require legal proceedings. The adjudicator’s power is limited to repairs.

Chris Irons E: chris.irons@hyneslegal.com.au P: 07 3193 0500 W: Hynes Legal

This post appears in Strata News #357.

Question: For a garage door that services only one lot, is it the body corporate or the lot owner who is responsible for any insurance excess related to a repair of the garage door?

Our garage door is on a boundary separating the lot from common property. If it’s the Body Corporate’s responsibility to maintain the garage door, who’s responsible for the payment of any insurance excess related to a repair of the garage door? In this instance, the garage door services only the lot so is it the Body Corporate or the Lot owner who pays the excess?

Answer: The owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.

Working under the assumption your body corporate is a “Standard Module” Section 184 of The Body Corporate and Community Management (Standard Module) Regulation 2008 would apply.

For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability.

Tyrone Shandiman Strata Insurance Solutions T: 07 3899 5129 E: tshandiman@iaa.net.au

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. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #341.

Question: Storm damage has resulted in a water stain on my ceiling. The Body Corporate has advised me that I can claim through the Body Corporate insurance to have the ceiling repainted but I’m responsible for the excess.

I have recently had storm damage resulting in a water stain on my ceiling.

The Body Corporate has been advised and has repaired the roof and guttering. It has advised me that I can claim through the Body Corporate insurance to have the ceiling repainted but I would be personally responsible for the excess.

Is this correct? Because they have taken responsibility for the roof repair but not the resulting interior damage I thought they would pay the excess?

Answer: The legislation is pretty clear about the liability for the excess and if it’s only for your lot, it’s your responsibility.

Section 184 of the Standard Module (equivalent provisions of the other Modules) provides for excess. The key provisions are subsections (3) and (4). Subsection (3) provides that ‘For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability’.

The section gives an example immediately afterwards to illustrate this further, which provides some guidance on these concepts. Examples in legislation are exactly that – examples. Not literal gospel. What is ‘reasonable’ and thus, ‘unreasonable’, will always depend upon the particular circumstances.

To look at this another way: the legislation is pretty clear about the liability for the excess and if it’s only for your lot, it’s your responsibility, but if you feel it’s unreasonable to do so you can ask the body corporate to reconsider the liability for the excess. That might happen by writing to the committee or if necessary, putting a motion to a general meeting.

Either way, the responsibility will be on you to demonstrate why you shouldn’t pay the excess and based on your particular circumstances.

This post appears in Strata News #329.

Chris Irons E: chris.irons@hyneslegal.com.au P: 07 3193 0500 W: Hynes Legal

Question: After my hot water system was repaired by a plumber, a connection blew and both my unit and the unit downstairs suffered water damage. Am I liable for the Body Corporate insurance excess?

My hot-water system was replaced by the building’s preferred plumber. After he completed the works and left, a connection blew and water flooded my unit. There was damage to carpets, furniture, curtains etc that is being covered by my contents insurance. There is also some damage to built-in shelving and bubbling/flaking of wall paint. Water also caused some damage to the unit below mine. I don’t know what the value of this damage is.

The BC Manager has advised that if I submit a claim to the Body Corporate’s insurer, I will be required to pay the Body Corporate insurance excess of $2,500, as the cause of the damage to other property originated in my lot. I will be advised in due course whether the claim has been processed once the claim form is submitted and whether the Body Corporate insurance excess is, in fact, payable.

It seems to me the damage was caused by the plumber’s actions, either due to negligence, accidental or other.

Will I have to pay the Body Corporate insurance excess by just submitting the claim form, regardless of whether the insurer processes the claim or not?

Is it likely I will have to pay this large excess even though it is not my fault? I don’t know if there is even $2500 damage to my shelving and walls.

Am I liable for the damage to the unit below?

Would the BC insurer likely claim all of the damage to both lots off the plumber, and me not pay the Body Corporate insurance excess?

In other words, I don’t know if it is financially worth my while to submit a claim with BC insurer given the large excess.

Answer: It will be a matter for the body corporate to decide on the payment of the Body Corporate insurance excess.

Section 184 of the Body Corporate and Community Management (Standard Module) Regulation 2008 provides a specific reference to who is responsible for the excess. (see below)

As the claim has caused damage to 2 lots, the owner of a lot is only liable to pay the excess if the body corporate decides it is reasonable in all the circumstances for the Body Corporate insurance excess to be paid for by the lot owner. If the owner has not already done so, they may wish to put a case forward to the body corporate outlining why they believe in the circumstances it is not reasonable for them to pay the excess, (for example the claim was from an unforeseen event following an upgrade of a water system). Ultimately, however, it will be a matter for the body corporate to decide on the payment of the Body Corporate insurance excess.

Excess payments are usually made in the following ways:

The payment is either deducted from any settlement the insurer pays; or

If the insurer engages a builder/contractor, the excess is payable to the builder/contractor before works start.

If repairs are below excess, the insurer will close the claim without proceeding and the owner can request to see a copy of the quotes before the excess is paid.

If the insurer believes the contractor who installed the water system is liable for the damage, they will pursue a recovery action against the contractor and usually the insurer will refund the excess if they are successful in their recovery – we recommend checking this with the insurer or strata manager as policies will differ from insurer to insurer with regard to Body Corporate insurance excess.

This post appears in Strata News #271.

Tyrone Shandiman Strata Insurance Solutions T: 07 3899 5129 E: tshandiman@iaa.net.au

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. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

Question: I’ve had a pipe leak in the bathroom leaving extensive damage that was covered by Body Corporate insurance. Who pays the water damage excess?

Recently I’ve had a pipe leak in the bathroom leaving extensive damage that was covered by body Corporate insurance. However, the $500 excess had an extra $200 water damage excess.

Is the water damage excess covered by the body corporate or the individual lot owner? The water leak was not a hot water pipe.

Answer: If the pipe and damage are within 1 lot, the excess would usually be paid for by the lot owner.

In Queensland, Section 184 of the Body Corporate and Community Management (Standard Module) Regulation 2008 provides a specific reference to who is responsible for the excess.

For an event affecting only 1 lot, the owner of the lot is liable to pay the excess unless the body corporate decides it is unreasonable in all the circumstances for the owner to bear the liability. Example — If a shower screen is damaged in a lot and an insurance claim is made under the body corporate’s reinstatement insurance, the owner of the lot would be liable under subsection (3) to pay the excess unless the body corporate decides it is unreasonable for the owner to be required to pay it. However, if there is a fire within a lot caused by a short circuit in electrical wiring located in an internal partition, the body corporate might decide it would be unreasonable for the owner to be required to pay the excess.

For an event affecting 2 or more lots, or 1 or more lots and common property, the body corporate is liable to pay the excess unless the body corporate decides it is reasonable in all the circumstances for the excess to be paid for by the owner of a particular lot or to be shared between owners of particular lots, or between the owner of a lot and the body corporate, or between owners of particular lots and the body corporate.

If the pipe and damage are within 1 lot, the excess would usually be paid for by the lot owner.

Tyrone Shandiman Strata Insurance Solutions T: 07 3899 5129 E: tshandiman@iaa.net.au

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. This information is designed as a basic guide with relation to cover and you should refer to your Policy Schedule and Product Disclosure Statement for all terms and conditions related to cover under any insurance policy. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisernet Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #249.

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