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[LoveTheView]

In our apartment building the Lot boundaries sit on the balcony balustrade and external surface of walls (where there is no apartment or common property adjacent).  As a result, Owners are responsible for maintaining the integrity of their own balconies and sliding doors.  Our first difficult problem arising out of that has now occurred.

In our five year old building we have discovered a number of cracks in the surface screed of a number of balconies, which are letting water into the balcony fabric and in some cases leaks are coming right through to the soffit of the apartment below.   The BC has received an engineering report, also an audit report on which balconies should be prioritised for sealing, and a quote for a building wide approach to apply gap plugging and surface sealing to all balconies.  We have investigated and discarded the defects route.

Our next problem is how to apportion costs, while ensuring that the whole building is structurally sound.  Technically each apartment owner is liable for the cost of repair of their own balcony surface.  But of course we can expect that some owners (particularly non-resident owners) will refuse to have their balcony fixed if they have to pay for it.  This will affect the property of the owner below, and will impact on the perception of the whole building’s integrity.   Some apartments don’t have balconies and these owners are unwilling to pay anything towards the project.  Several apartments are already tiled but there is a hint that these tiles may need to be removed to inspect and re-seal these surfaces, so these costs may be higher than for the others.

The BC is wondering how to approach this.  The easiest perhaps would be to draw the funds out of the sinking fund, so that all would contribute in line with their unit entitlement but the cost would be indirect and not felt immediately.   Any thoughts from others who have been through similar issues?

 

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[Shortcrust]

I have not been on such a situation but even if I have, no two cases are identical so assuming what happened in another strata will happen in your strata, may or may not come to pass.

I think the smartest thing you can do for this possibly very expensive issue is to have your strata committee seek a legal opinion on this from one of the lawyers that sponsors this website. This may cost a couple of thousand dollars but should prove in the long run to be money well spent.

[Sir Humphrey]

If this were the ACT, I would look to the default rules (aka bylaws) that:

-require a unit owner to repair and maintain their unit, and

-require a unit owner to not use their unit in a way that unreasonably interferes with the reasonable use and enjoyment of anther unit, and

-allows a representative of the owners corporation to enter a unit if reasonably necessary for repair and maintenance subject to reasonable notice etc., and

-the provision of the Act that allows an owners corporation to resolve at a general meeting to take on certain maintenance tasks on behalf of units owners that would normally be a unit owner responsibility.

Between these provisions, I think you could mount a case for and provide the process by which the OC could require the maintenance to be done on all balconies for the benefit of other units and the building as a whole and for the OC to undertake that maintenance and to have access to all units for that purpose, subject to reasonable notice etc.

I assume that other jurisdictions have similar provisions. You would just need to string them together and have the relevant vote and then nobody could refuse and all would be up for sharing the cost. Whether the cost was from the sinking fund (with an amendment to the sinking fund plan) or billed at a flat rate or by unit entitlement to each unit would be another part of the resolution.

[Jimmy-T]

kaindub wrote:

Is this NSW? I’ll assume it is.

The OP has said that the CP boundaries are the balcony balustrades, so it sounds more Vic than NSW.  Perhaps they could let us know.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[kaindub]

Is this NSW?

I’ll assume it is.

Unless there is specific wording on the strata plan or an exclusive use by law this is how the lot owners property is defined.

It’s the cubic space between the inner walls and inner boundaries as delineated on the strata plan

Everything else is common property

For a 5 year old building A thick line drawn on a boundary is taken  to be on the inside of the boundary.

Same with floors and ceilings.  It’s the space between them that’s owners property.

( just to be clear, when you buy into strata , you buy air, which is your own, and then a share of the common property)

In your case it’s the responsibility of the OCto repair the cracks and leaks.  The costs of the repair is borne by all lot owners in proportion to their unit entitlements.

However you may want to get a move on and envoke your building defects warranty against the builder/ developer.  It’s within the defects warranty period of 6 years. Get you strata manager to start a claim ASAP.

[LoveTheView]

Hi all, I posted this in the Living in Tasmanian Strata forum, so I assumed you would realise this is about Tasmania.

The rules about boundaries are different here.  We were surprised recently when we found out how different they are to NSW etc.  Here, where there is a bold boundary line, the individual owns to halfway through the line if there is an adjacent Lot or common property, and if there is no adjacent Lot or common property then the individual owns to the actual outside.  As you can imagine, this is going to create a number of complex problems for the Body Corporate to work through or around.

That is why we had the idea of using the Sinking Fund.  In fact, we currently have balconies included in our Asset Maintenance plan because we were unaware at our last AGM about the correct definition of our boundaries.   Could we continue to hold some items (like balconies) in the scope of the Sinking Fund?

 

 

 

[Jimmy-T]

LoveTheView wrote:

I assumed you would realise this is about Tasmania

You know what they say about “assume” (ha-ha!)

This sounds like a question that’s more about what the owners corporation is allowed to spend its money on than whether or not it’s liable (it sounds like the balconies are lot property).  What does the Tasmanian Act say? For instance section 119 of the NSW Act says this:

119 Work to rectify certain defects

(1) An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects–

(a) any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,

(2) An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.

You may find something similar in Tasmanian strata law.

 

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[Ray2U]

In NSW, it’s pretty straight forward.  If, for example, the owner is being reticent and the OC opts to carry out the work to rectify private private property then the OC is to pursue the costs.  And the NSW Strata Schemes Management Act allows a relatively straight forward method to recover the costs as a debt, so there’s no need for legal demands, etc.  You just put it on the ‘tab’, so to speak.

The hard part is gaining access to the lot if the owner refuses.  But that can be obtained by an order from NCAT.

The relevant section and subsections are:

120   Owners corporation may carry out work required to be carried out by others

(3) Work that is duty of owner or occupier to carry out If a person who is the owner, mortgagee or covenant chargee in possession, tenant or occupier of a lot in the strata scheme fails to carry out work in order to remedy a breach of a duty imposed by Part 8, the owners corporation may carry out the work and recover the cost of the work from that person.

(5) Recovery of costs as a debt The costs incurred by an owners corporation in carrying out any work referred to in this section may be recovered by the owners corporation as a debt.

I am not familiar with the TAS Strata Titles Act but I note that Tas ST Act states:

11. Rights and responsibilities for common property

(1) The body corporate may sue and be sued for rights and liabilities related to the common property as if the body corporate were the owner and occupier of the common property.
(2) If the body corporate grants rights of exclusive occupation of a particular part of the common property to another person, the body corporate’s rights and liabilities as occupier of that part of the common property are, while the right of exclusive occupation continues, vested in the other person.

So it appears that the exclusive occupier can be sued if he/she fails to maintain their portion of the common property

Also it seems that the body corporate can only raise funds for its parts of the common property.  That is, the body corporate cannot raise funds to maintain the exclusive occupier parts of the common property.  I note that the Tas ST Act states:

82. Fund for meeting financial obligations

(1) A body corporate must maintain a fund for the purpose of meeting its financial obligations under this Act.

So, in effect, section 82 limits the body corporate to only collecting monies for its obligations; not to meet the exclusive occupier’s obligations.

Again, I am not familiar with the TAS ST Act and the above is just to provide ‘food for thought’

Cheers

Ray

 

[Jimmy-T]

Ray2U wrote:

So it appears that the exclusive occupier can be sued if he/she fails to maintain their portion of the common property

True, but the twist in this tale is that the balconies are lot property.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[kaindub]

Firstly, you cant use BC funds to repair lot owner property.

Everyone affected will have to pay their own costs, which means an itemised bill from the builder, or an agreement from each affected owner about how much each will pay (and the totals have to add up to 100%)

The next challenge I see is how to get everyone to fix their balcony.

I am unfamiliar with Tasmanian strata. But possibly there is a section of the act or a bylaw that says owners have to maintain their property. With engineers report in hand, insist that each owner has to repair their balcony. If there is push back (which invariably there will be) the BC may have to take it to the courts to get an order that says all balconies must be fixed.

It all hinges on an engineers or builders report identifying the issue, to satisfy the court

 

[Jimmy-T]

kaindub wrote:

Firstly, you cant use BC funds to repair lot owner property.

I’m looking at Section 119 of the Tas Act and it says this: ”

An owners corporation for a strata scheme may carry out work that is necessary to rectify any of the following defects–

(a) any structural defect in any part of a building comprised in a lot in the scheme that affects or is likely to affect the support or shelter provided by that lot for another lot in the building or the common property,

(2) An owners corporation may carry out the work at its own expense if the cost of the work cannot be recovered from some other person.

In most cases, the balcony will be providing shelter for the one below, so that might tick the box in 1(a).  Then I guess the OC could agree not to pursue the debt too vociferously, activating clause 2.

If there is such a person as a strata lawyer in Tasmania, please make yourself known.

 

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

[kaindub]

Its certainly an unusual case

This might be one where a strata lawyer is necessary in order to unravel the “mess”

I think its beyond us bush lawyers

[LoveTheView]

Sorry Jimmy, that Act reference is from the NSW Act.  I have found nothing similar in the Tasmanian Act.  It is certainly a section that I will be recommending be included in the Act when the Tasmanian Government finally gets around to its long promised review of the Act.  The Tasmanian act is pretty basic!

Thankyou for everyone’s input.  I am now inclining to the view that @kaindub is correct, that we are unable to use BC funds to repair private Lot property.

As @Sir Humphrey has suggested, we do have the first three suggested by-laws relating to the owners’ responsibility to maintain their property in good repair.  However our only useful Act reference is that the BC’s functions include “to carry out other functions for the benefit of the owners”.  So I believe we will have to go down the route of a SGM to give permission to the BC to undertake the building wide project for the benefit of all owners and to provide approval for a means of distribution of the costs (probably in line with unit entitlements).

This will not be fun.

 

[Jimmy-T]

LoveTheView wrote:

This will not be fun.

Made me smile – but sympathetically, of course.

The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.

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