This VIC question is about the next steps to take after a builder refuses to repair a major strata building defect.
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- QUESTION: My balcony’s waterproofing was tested and I received advice that I would have to replace the membrane on the entire balcony (cost of $80 000+). What options do I have?
- QUESTION: We have a number of strata building defect issues with the building and the builder now refuses to carry out any more work. We are communicating through his solicitor, but still, nothing gets done. Where do we go from here?
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Question: My balcony’s waterproofing was tested and I received advice that I would have to replace the membrane on the entire balcony (cost of $80 000+). What options do I have?
On my apartment’s building level is a large common area balcony. My apartment borders onto this balcony and the identical apartments above have views over the common balcony and into the distance. Obviously as my apartment is on the same level as the common balcony there is a fence for privacy, that also blocks my views. As I still have windows on that side, the fence is set back from them, resulting in a section of the common balcony fenced off “privately” for my apartment. (Overlooked from the apartments above).
The OC had the common balcony’s waterproofing tested and received advice that the membrane should be replaced on the entire balcony, even though no incidents had occurred.
The OC is splitting the cost of this over the OC and me. I would be required to pay $80,000+, an amount that would require me to get a bank loan or sell my apartment and move out.
The advice the OC received was that the membrane was not properly set up during the building’s construction, over a decade before.
If this work is done, it will not make my apartment more waterproof, only the apartments below the balcony, but they’re not being asked to pay anything. None of the other balconies in the building, large or small, are being replaced.
What options do I have? It’s not like I have something damaged on my property, the OC is wanting to replace a substandard part of the building that extends under my property.
Answer: We would recommend contacting a specialised Victorian Owners Corporation Lawyer and confirming the boundaries of your lot.
After reading your question, our understanding is that you have an apartment (without a balcony) that is attached to the common property balcony and the membrane has failed and needs to be replaced on that common property balcony.
Unfortunately without a plan of subdivision we are unable to provide any further information on the layout of your building or on the boundaries of your lot.
However we would recommend contacting a specialised Victorian Owners Corporation Lawyer and confirming the boundaries of your lot and then this will then determine whether the matter in question is related to just the common property.
If it is just the common property then you would not be required to pay for an extra amount as an individual lot owner, as the cost would need to be borne by all of the owners corporation. You may have to contribute to the special fee if there is one raised by the OC for the common property works though.
We hope this is helpful and wish you luck with the matter.
Jane Giacobbe
Strata Reports Victoria & NSW
E: [email protected]
P: 0402 341 848
This post appears in Strata News #389.
Question: We have a number of strata building defect issues with the building and the builder now refuses to carry out any more work. We are communicating through his solicitor, but still, nothing gets done. Where do we go from here?
We are lot owners in a 9 apartment, two story building completed in August 2015.
We have a number of strata building defect issues with the building and the builder now refuses to carry out any more work. We are communicating through his solicitor, but still, nothing gets done.
A number of issues centre around failure to adhere to Australian Building Codes which have resulted in water leaks and fire protection failures. Two years into occupancy a fire protection audit found that the basement garage did not comply with fire protection regulations in a number of serious areas.
This has since been rectified with months of disruption. There are serious concerns with regards to correct waterproofing of external first-floor balconies with the tiles ripped up and replaced 3 months into occupancy with no explanation.
Subsequently, one apartment was badly water damaged from a balcony leak and had to be tiled again. Another apartment still has rainwater coming out of a smoke detector hole and the builder has given up on fixing the problem.
We are now preparing a strata building defect case for VCAT and would appreciate your comment on the following:
The motor unit fitted as new to the double width garage door, according to the distributor, is a domestic model, out of production for 12 years (no spare parts available) and deemed not suitable for the purpose of apartment use. We had a problem with it in the first year and the installer carried out a dodgy quick fix repair which leaves the unit basically unfit for purpose. Again, the builder continually refused to deal with the issue.
Are we entitled to a replacement of the unit?
The air-conditioner units for some apartments are on the roof along with all the motor units for the emergency extractors for the garage. However, there is no access to the roof area from within the building and external access can only be made by access from within the apartment lots.
What problems could we face here when it comes to carrying out required maintenance on the units? Should a common area access have been featured in the building?
Answer: Due to the extent of the strata building defect problems you are experiencing I would recommend the engagement of a building consultant to conduct a detailed defect report.
This report should identify any breaches of the building code and also those items not fit for purpose, such as the garage door motor. This use of domestic actuators for multi-unit developments a very common issue in cost savings in construction with the owners inheriting the issue of replacing this in the very near future as the operation of these in a multi-unit development wears the drive units out very quickly.
On the completion of the report wherein the consultant has identified the defects including items not fit for purpose this should be initially lodged with the builder. Once this is registered then the matter may require the engagement of a suitably qualified/experienced legal representative but the builder must address the items listed.
In regards the matter of the air conditioning units on the roof there is a very good legal precedence from a Supreme Court ruling wherein it is mandatory that access be made available to service common facilities and it cannot be via another lot. It follows that a means to access the service area on the roof must be provided via an avenue other than through private property of another owner.
Stuart Mellington,
Select OwnersCorp Management
E: [email protected]
This post appears in Strata News #208.
Read Next:
- VIC: Q&A Damage caused by a water leak from balcony above
- VIC: Q&A What’s Common Property and Who’s Responsible for Repairs?
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The question of access to common property areas, such as the roof, via private property has concerned me on our property for some time.
I have emailed Stuart to ask if he could supply a reference for the Supreme Court ruling regarding separate access to common areas.
Tim C
Hello Tim, just wondering if you got the reference?
Speak to your member of parliament. If the legislation needs to be improved around defects, ensure that they know the gaps in the legislation.