WA: Q&A Strata Improvements – Liability, Insurance and Repairs

The LookUpStrata Team

6 years ago

We have been asked about liability and insurance implications for strata improvements.

Table of Contents:

QUESTION: We need to replace the windows in our self managed complex of 4 units. Are the costs split evenly or is it a pay-per-window arrangement, with additional costs required for units upstairs?

QUESTION: What is the best process for reporting required common property maintenance to the Strata Manager and Council of Owners?

QUESTION: What happens if the action items in the proposed 10 year plan, as presented to the insurer, isn’t undertaken due to unforeseen circumstances?

QUESTION: If your 10 year maintenance plan recommends replacement of a roof and that doesn’t happen, could an insurance company deny future claims?

QUESTION: How are common property carports in WA Strata schemes assigned to lot owners? What are the residents rights with regards to these areas?

QUESTION: If an exclusive use lot holder performs improvements to exclusive use areas that do not meet required safety standards or building codes etc, is strata liable?

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Question: We need to replace the windows in our self managed complex of 4 units. Are the costs split evenly or is it a pay-per-window arrangement, with additional costs required for units upstairs?

We are a self managed complex of 4 units with 2 units up and 2 units down.

Our windows are to be replaced. How do we divide the costs for this work? Is it a 4-way even split between the 4 unit owners or is it a pay-per-window arrangement, with additional costs required for the upstairs units?

Answer: The costs should be included in the budget for the Strata Scheme where owners would then contribute towards the budget in accordance to their unit entitlements.

Without having seen the strata plan and the bylaws I am not able to give a definite answer.

However, assuming that this is not a single tier strata, and boundaries are the inner surfaces of the walls (cubic air space), any expenditure towards the window replacement (if in fact the windows are common property that is), would be included in the budget for the Strata Scheme where owners would then contribute towards the budget in accordance to their unit entitlements.

If they do not have a budget (which they should have as per Act – unless there is a bylaw which exempts the strata scheme from having an Admin Fund), then the cost would be still split according to the unit entitlements of the lots.

If the windows are in ownership (boundaries to the external faces of the building), each owner would need to pay the window contractor the amount equivalent of the windows being replaced in their unit as the Strata Company has no authority to raise funds towards private property. An arrangement that each owner pays the cost per window for their unit can also be done if the windows are common property; in both scenarios though, I am of the opinion, that all owners must agree to this arrangement.

This advice does not constitute legal advice and we recommend that the owner obtains their own legal advice to suit the circumstances.

Marietta Metzger magixstrata E: marietta@magixstrata.com.au P: 08 6559 7498

This post appears in Strata News #584.

Question: What is the best process for reporting required common property maintenance to the Strata Manager and Council of Owners?

When we submit a request for a minor structural repair of a wall (1-2 days of work) to a Strata Manager and Council of Owners as a part of the strata common property repair:

Should we request the repair to be completed in a certain time frame?

Is there a legal maximum timeframe when we can expect to receive a reply and/or approval from a Strata Manager and Council of Owners? If there is, what is the maximum timeframe?

Is there a legal maximum timeframe when we can expect the repair to be completed? If there is, what is the maximum timeframe?

If there is no reply or action from the Strata Manager nor the Council of Owners for the request within a certain timeframe, for example, 14 days, we plan to reiterate our request. Is there another better course of action?

Answer: As an owner, you’re able to request an Agenda item be added to the Notice of your next General Meeting.

In the first instance, you’ve done the right thing and raised your concern, in writing, with your Strata Manager. The Strata Manager will need some specifics; the exact location on the plan where the damage occurred, was the damage caused by impact, any photographic evidence etc. They’re then better able to provide sufficient information to the Council of the Strata Company – who will need to be notified in most cases – and the Insurer if necessary.

Unless the repair is directly affecting the use of your lot, it would not normally be expected to request or suggest it be repaired within a certain timeframe, as there can be many other factors that need to be taken into consideration when managing repairs.

Depending on the extent of damage, and whether any perceived risk is observed, it may take time for the Council to confer (or possibly hold a Council Meeting), before being able to provide instruction to the Strata Manager on how to proceed. Additionally, quotes or reports may need to be gathered to ascertain the extent of the damage.

The Strata Titles Act is silent on ‘legal maximum timeframes’. This is something that may be covered in your agreement with your Strata Company Manager. However, a response from your Strata Manager would usually be expected within 48 hours – even if it’s just an acknowledgement of your correspondence.

The Strata Company has a general duty to control and manage the common property for the benefit of all owners and keep in good and serviceable repair, properly maintain and, if necessary, renew and replace the common property.

Further information is required to what constitutes ‘a minor structural repair of a wall’:

Is the wall in fact common property?

Where is the wall located? Within the lot, or does it form part of the perimeter of the parcel?

Does the wall/fence fall under the Dividing Fences Act with the neighbouring property?

What are the boundaries of the lots/part lots of your particular scheme, and, are they are bylaws such as exclusive use which must be taken into consideration?

Has the fault been determined as requiring structural repair by a suitably qualified contractor?

Is the scheme currently under a building defects warranty period? If so, is the fault listed in the schedule for the builder to repair?

Is the scheme in the process of obtaining a 10 Year Maintenance Plan, or, have they commenced works as recommended in the plan and is the wall included?

Has the budget of the strata company sufficient funds to carry out repairs? What works have been discussed or resolved to carry out, as noted in the Minutes of your last General Meeting?

As an owner, you’re able to request an Agenda item be added to the Notice of your next General Meeting – to specifically have the wall in question assessed and repaired. In this forum, all of the owners within the scheme have the opportunity to consider and vote on your proposal. If the structural fault in the wall could potentially pose an insurable risk, your Strata Company insurance provider may be approached directly.

Before considering having the matter heard before the State Administrative Tribunal, it’s important to ensure all parties have the correct information. There may be factors deviating the Council from having the repairs carried out within a certain timeframe. If the Council of the Strata Company is not forthcoming with this information, it would be very reasonable of you to request the reason for the delay from your Strata Manager, and it would be expected that they would provide you with this.

ESM Strata E: mchurstain@esmstrata.com.au P: 08 9362 1166

This post appears in Strata News #526.

Question: What happens if the action items in the proposed 10 year plan, as presented to the insurer, isn’t undertaken due to unforeseen circumstances?

What happens if the action items in the proposed 10 year plan as presented to the insurer isn’t undertaken due to unforeseen circumstances? Does the insurer have a right to refuse a claim for property damage?

Answer: It’s very important that it is attended to and you’re working with the insurer.

It’s very important that if the issue has been rated as a high issue that it is attended to and you’re working with the insurer.

When we get notified of a potential maintenance defect, we would advise the insurer and we work with the strata and the strata manager to make sure that any make safe arrangements are done.

Usually the insurers will continue to look after, indemnify that strata, but they’ll definitely be looking for that particular problem to be remedied and fixed as soon as possible.

Leonie Milonas PSC Property Lync Insurance Brokers E: leonie@lyncinsure.com.au P: 1300 127 503

General Advice Warning The answers to these questions are prepared as general informational purposes only, and is not legal advice and should not be relied on as legal or insurance advice. You should consult with a qualified insurance or legal advisor. The above is a general response only to questions asked, not taking into account personal circumstances and is not legal advice. See General Advice Warning.

This post appears in Strata News #443.

Question: If your 10 year maintenance plan recommends replacement of a roof and that doesn’t happen, could an insurance company deny future claims?

If you have a 10 year maintenance plan drawn up and it recommends replacement of a roof in the next 5 years and after 5 years the roof isn’t replaced, could an insurance company deny any future claims after the 5 year period in relation to that roof?

Answer: It depends on whether the report states that there’s a defect, error or omission with the roof.

It depends on whether the report states that there’s a defect, error or omission with the roof.

Maintenance issues may not be a defect, error or omission. If the roof is found to be defective, and there is an exclusion around non rectification of defects, errors or omissions you were aware of, the roof should be replaced in five years.

If there are no defects or issues then it would be hard for the insurer to apply an exclusion to the policy just because it was a maintenance recommendation as opposed to an actual defect.

It really depends on what the report says. The owners corporations should seek advice from their broker around whether it should be disclosed to the insurer or what the implications would be of not rectifying that roof.

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. 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 December 2020 edition of The WA Strata Magazine.

Question: How are common property carports in WA Strata schemes assigned to lot owners? What are the residents rights with regards to these areas?

How are common property carports in WA Strata schemes assigned to lot owners and do they have to be registered with Landgate’s Registrar of Titles?

Is the common property “Car Port” allocated as an exclusive use area by a registered by-law?

Is a tenant in WA who does not use a lot’s common property carport legally allowed to assign it to another resident for exclusive use or can that only be done by the owner-landlord or by the Strata?

Answer: The allocation of common property areas is usually done by the registration of a new by-law for exclusive use at Landgate.

This question has insufficient information to enable an accurate answer to be provided.

The allocation of common property areas is usually done by the registration of a new by-law for exclusive use at Landgate. A temporary allocation of common property can also be done by license.

The tenant has all the rights the owner of the Lot would and the benefit of the exclusive use area. The tenant could allow another owner to use their exclusive use area on a temporary basis.

The strata company’s involvement is limited unless a registered by-law precludes subletting of carport areas.

Care must also be given to the rental lease agreement between the Landlord and Tenant as the tenant is entitled to have the use of a carport if there was one allocated.

Shane White Strata Title Consult E: shane.white@stratatitleconsult.com.au

This post appears in Strata News #431.

Question: If an exclusive use lot holder performs improvements to exclusive use areas that do not meet required safety standards or building codes etc, is strata liable?

If an exclusive use lot holder is responsible for maintenance of the exclusive use area and they perform maintenance or improvements to exclusive use areas that do not meet the required local, state or national safety standards or building codes etc, is the strata liable for any incident as the owner of the common property, or is the exclusive use lot holder liable?

Is the Strata as proprietor required to ensure standards are met when lot owners carry out improvements to exclusive use areas?

Will the exclusive use lot holder be covered by the Strata’s contract if found liable?

Should the exclusive use holder have their own liability insurance as well as reimbursing the Strata for theirs? Can the Strata compel the lot holder to obtain their own liability insurance in addition to that covering the Strata?

Answer: Alterations to a lot, whether Exclusive Use or not, need to be approved.

Please note: this response was provided prior to the proclamation of the new strata title amendments.

The first part of this question is really a strata management question, more than an insurance question, as you would need to refer back to the bylaw for Exclusive Use.

However, alterations to a lot, whether Exclusive Use or not, need to be approved. If alterations have not been approved, they may be illegal installations, generally illegal installations will not be covered by insurance, as insurance conditions generally require that the building structure is a legally approved alteration or upgrade and is compliant to meet building standards. Who is liable in a claim will depend on the circumstances of the incident and the by-law.

Is the Strata as proprietor required to ensure standards are met when lot owners carry out improvements to exclusive use areas? In respect to insurance, the answer is yes, building standards must be met. It needs to be compliant based on the year it was built or the when it was altered.

If the Strata is the contract holder for the liability insurance contract partly reimbursed by the exclusive use holder, will the Strata still be indemnified by the insurer against a common or civil suit in either legal outcome? Depending on the circumstances, and the policy obtained, a strata insurance policy generally may defend the strata company for actions arising against the strata company for matters they may become legally liable for. Legal liability is a claim for negligence. The Strata Company purchases the insurance policy, but the premium is levied between all the Lot Owners to pay the premium. You should refer this specific part of this question to your insurer, as per their coverage.

Will the exclusive use lot holder be covered by the Strata’s contract if found liable? This question is broad. However depending on the wording of the Exclusive Use Bylaw, will depend on the strata insurers involvement, as to whether they will extend liability coverage to that specific incident that arose out of the use area of the Exclusive Use. You should seek to qualify this question with your current insurer. We would suggest any By-Laws for Exclusive that impose a requirement for insurance be referred to your insurer for their approval.

Should the exclusive use holder have their own liability insurance as well as reimbursing the Strata for theirs? An Owner should, arising out of the Use of his / her lot including the Exclusive Use area, have liability insurance, which is contained in a Landlords insurance or Contents insurance. As far as reimbursing the strata for the strata insurance premiums, typically yes and forming part of the ordinary levying that applies, however, this question should be referred to your strata manager.

Can the Strata compel the lot holder to obtain their own liability insurance in addition to that covering the Strata? My understanding is, the strata may not compel a lot owner, however, this is a strata management question. Where a registered By-law for the Exclusive Use exists, insurance obligations maybe described and further that the Owner is able to comply i.e. able to obtain the necessary insurance. I reiterate these type of matters should be referred to the strata insurer specifically and the Owners contents insurer.

Leonie Milonas PSC Property Lync Insurance Brokers E: leonie@lyncinsure.com.au P: 1300 127 503

This post appears in Strata News #196.

Have a question about strata liability when lot owners make improvements to exclusive use areas or something to add to the article? Leave a comment below.

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Please note this advice may have been provided prior to the proclamation of the new strata title amendments and will be updated in due course.

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