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We have recently purchased at the auction an apartment with a balcony in a 4 unit apartment building in Victoria. We stupidly followed the advice of our mortgage broker and didn’t get the property assessed before purchase. After we moved in, a retired builder family friend drew our attention to the balcony being in a poor condition. We had a building inspector do an assessment and he indeed confirmed that it’s a safety hazard, that it’s dropping due to rotting timber poles that are supporting it. We don’t know the exact cause, it can be poor maintenance, weather or maybe something happened in the past that we are not aware of. The other owners say that it’s normal wear and tear and that insurance will not cover it, that we have to do it ourselves. I have contacted the insurance, but still haven’t received their response.
Also, the supporting wooden poles are placed on the neighbour’s lot under us. That neighbour’s lot is on the ground floor and the poles are in their courtyard. Our balcony provides the roof for their verandah, and they have table under our balcony. We have warned them not to spend time there.My question is, since the poles are on that lot, do we have the entire responsibility for the repairs and maintenance, or is that a shared responsibility? Who can we contact in Victoria to ascertain that? Any information would help.
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Do you have a managing agent? They might be able to advise.
I meant a property manager. It might still be worth asking. If they give you an answer you like…
[This post has been edited to take in the more informed views (below) from Austman – who lives in Victoria]
Your neighbours are right, in that the Insurance company probably has no liability for the results of age, wear and tear.
The whole structure may be common property and, as such, under section 46 of the Owners Corporation Act (2006), the Owners Corporation (you and the other owners in the block) MUST repair and maintain it – no ifs, buts or qualifiers. [See Austman’s post below]
The only way the OC would not be liable would be if the original plan or special by-laws gave responsibility for the common property to the individual lot owners (not impossible).
If this is an Owners Corp liability, your real problem will be the OC saying they don’t have the money (they can get a loan) or asking you to wait while they see who else needs the work done (your call on that).
But the bottom line is, if it’s common property they have to fix it. And if anyone is injured in the interim, it’s the OC’s responsibility – and people who delayed the remedial work could be held personally responsible.
Time to gather all the facts about who owns what (again, see Austman’s post) and then organise a sit-down and a calm chat with your neighbours.
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Edita said:
Do you mean real estate agent or the property manager? We live at the property, so no agent. There is a property manager, but I’d prefer to find out independently. i don’t have much trust in them unfortunately.
I think you might benefit greatly from logging on to this CAV website and working your way through the information, including all the linked pages, there. There is a difference between and Owners Corporation Manager (strata manager in NSW and QLD) and a property manager.
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Here’s the reality of small apartment blocks – your OC (strata) Manager probably gets about $250 per block per year from your scheme. If your building had ten times the number of units, she would get 10 times as much, for roughly the same level of grief – possibly even more since, at that level, everything is so much more personal.
What I’m saying is, if you want this done properly, then you are going to have to do it yourself.
[Section edited out, with reference to Austman’s post below]
My sense is that you need to sit down with your neighbours and explain that you all really need to start doing things properly … and that is going to cost everybody something.
I also think you are going to need to pay someone who knows Victorian strata law to explain the facts of life and what your options are. And for that, perhaps you need a new OC manager.
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Just to add to replies so far. All this is assuming the balcony is common property. From my experience most are.
The OC needs to be made aware of their financial exposure if they do nothing and there is an accident.
If there is an accident because of the OC’s refusal to fix a known fault (the balcony) insurance may refuse to pay leaving the OC exposed. If a person falls through the balcony because of its condition the damages could be considerable.
You are probably being over-generous in fixing the whole balcony at your own expense, but that’s certainly a bargaining chip to take to the other owners – if they share the cost of replacing the poles, you’ll take the hit for fixing the balcony. Otherwise they can fight you at VCAT and then share the cost of the whole operation when they lose.
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What the OP first needs to do is to check their Plan of Subdivision.
Victoria is different in this area eg to NSW. In Victoria it’s the PoS, that defines what parts of a strata building are common property and what parts are lot property.
While I agree that the OP’s balcony is very likely to be common property, even substantial parts of apartment buildings in Victoria can in fact be lot property, especially if that part forms no structural element for the rest of the building. For example, I own in a CBD high rise where every second floor structure (and I mean a floor structure within a lot, not a “floating” floor) is deemed lot property as it serves no structural part of the whole high rise building.
As for the poles in the other lot’s courtyard, again Victoria can be different. Implied easements under the Subdivisions Act 1988 allow such things to be in other lots or the common property so again they can can be still a benefiting lot owner’s responsibility to maintain.
So check the PoS first! You must be certain that it’s actually common property.
When it’s confirmed that it is common property, the next issue is how the repairs are funded. Again, Victoria is different in this area eg to NSW. If the OC decides to use a Special Levy to fund the works, as is quite likely in smaller stratas that are not required to have a separate maintenance (sinking) fund, they must then apply the benefit principle when deciding how to pay for the repairs. The benefit principle states that lots that benefit more should pay more. If the works are only likely to benefit eg 2 of the 4 lots, then it’s only those 2 lots that should pay.
After reading Austman’s post (above) I have heavily edited my previous posts. I knew Vic strata law was different … but not that different in those ways.
My advice to get expert strata advice is more relevant than ever.If you want to be alerted when anyone replies to your posts or responds to this topic, please register and login, then you will be able to subscribe to the topic. 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. NB: Longer threads may spill over to additional pages - look for the numbers on the bottom right, under the last post.