Ghosts of Past have come back to haunt us.

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  • 31/03/2012 at 11:57 am #8031 Reply | Quote
    drjet
    Flatchatter

      Our building was built in 1974/1975. Final plans were approved by the council in July 1975.   An application to for strata was submitted in March 1976 and was approved in September 1976. 

      The complex was constructed in three distinct blocks (A, B & C) on a steeply sloped site.  Block C is at the rear of the complex and includes 5 townhouses.  The original design for these townhouses included a covered patio covering approximately half the area of the ground floor.  This was apparently done to satisfy the Floor Space Ratio in place at the time.  The townhouses were originally place on sale in this state.  However it appears that none of them were originally sold.

      At the time the survey was completed in March 1976 these patios were shown as enclosed space – it appears that the developer chose to enclose this space to enhance the value of each of these townhouses.  However there is no record of this change registered with the local council.  In addition the council can find no record of the 317 certificate. 

      We now have a situation where the architect of the complex recently purchased a unit in Block B of the complex and has been elected to the Executive Committee.  The architect believes that the changes made and the developer after the final plans are technically classified as “unauthorised construction” or “unauthorised development” and any issues that arise in areas originally designed as patio are the owners responsibility even though the changes were made 36 years ago and all of the townhouses have been on-sold in the current configuration a number of times.  The opinion of the architect is supported by the EC Secretary and EC Treasurer.  The Executive Committee has 5 members so this represents a majority opinion. 

      This situation has come into discussion because the owner of one of the townhouses has complained of a rising damp problem and the EC is refusing to take responsibility for this problem.

      Whose responsibility is this problem and how can we clearly substantiate this?

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    • 31/03/2012 at 7:06 pm #15177 Reply
      struggler
      Flatchatter

        Though I am no expert on the subject, we did have an owner once claim that he had rising damp – in his first floor bedroom.  A search of the internet provided information that rising damp is normally found something like 30cms above ground floor (or close to this figure anyway).

        Not knowing your complex or its construction, if there is a slab construction in these townhouses, and there is damp above this slab area in the townhouse, then there could be a water/drainage problem under the slab.  And I am pretty sure that any problem from under the slab is strata/OC.  The owner is responsible from the top of the slab.  Though your complex sounds like it has many different types of construction in it.

        I have been told previously by our SM that our OC has an obligation to pay for the investigation of the origin of a problem to determine whether it is an OC or owner responsibility. 

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        01/04/2012 at 10:39 am #15184 Reply
        scotlandx
        Flatchatter

          You don't say where the rising damp is, I presume it is in the enclosed area that was originally shown as a patio?

          Setting that aside, there are two issues at the outset – is the area of the rising damp common property, and what is causing the rising damp.  The common property issue may be affected by the original council approval but the more important thing is what is showing on the strata plan.

          The opinion of the EC members is not really relevant if the owner takes the dispute further, because the EC members are not qualified to determine that.  The EC should engage some experts to determine the cause of the rising damp (struggler is right) and then look at the common property issue.  The question there is, are faults in the common property causing the rising damp?

          It may be that the failure to obtain council approval would be a factor, but then you have to look at a number of things such as is the area being used as a habitable room, and would the council give approval for that now.  You can ask a council to approve a structure, or part of a structure, that has not obtained approval.  As long as it meets council requirements the council would likely give that approval.

          This case has some similar facts, it's complicated but worth reading.

          Symes v SP 31731 [2001] NSWSC 527

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          01/04/2012 at 10:44 am #15185 Reply
          scotlandx
          Flatchatter

            Oops sorry that case went on appeal, so have a look at this one also.

             

            Symes v The Proprietors Strata Plan No 31731 [2003] NSWCA 7

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            01/04/2012 at 5:09 pm #15189 Reply
            drjet
            Flatchatter
            Chat-starter

              Thank You for your responses.  The rising damp is in the original Patio area.  The architect contends that the floor of the covered patio … quote…
              … waterproofing treatment for “patios” or “terraces” is completely different to waterproofing treatment for ground floor enclosed living areas.

              With patios, you often find there is plastic sheeting applied a few centimetres under the screed (flat soil-based surface) upon which the tiles are laid.  Any surface rainwater can seep down through the grouting between the tiles and eventually find its way into the soil below. Conversely, where construction is for human living and sleeping, procedures for waterproofing are totally different
              … end quote

              Given the time that has past we have no way of determining whether a properly waterproof slab was laid in this area before it was enclosed.  We have assumed that it was because none of the other units have this issue. However the architect contends that this is not the case and that the area was enclosed without addressing the potential consequences.  

              He also contends that because this was not part of the original structure and was not approved by the local council it is not a BC responsibility.  The townhouse owners contend that the patio was enclosed at the time that the complex was strata'd in 1976 and that the survey completed for the stata application shows this as enclosed/living space and the survey should be the defining document.

              We have found and fixed  a number of blocked downpipes and  broken pipes, pipes that go nowhere in the vicinity of Block C of the complex.  The rising damp is most likely a result of some of these problems.

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