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Interested in people’s views on who bears the costs when a structure has been built (and paid for) by a lot owner (with permission from the OC) over an exclusive-use area of common property and in order to repair some defects (as part of HOW defects claim) it must be pulled down (temporarily) and then reinstated? The common property is not only exclusive use but also by the by-laws to be maintained by the lot owner. The structure is permanent (i.e. bolted to walls etc). In some cases these structures were put up before defects were known, in other cases after. Many thanks in advance.
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I have extracted a relevant detail regarding the issue that you have raised from my reading of the decision in The Owners Stata Plan No 6534 v El Khouri [2015] NSWCATCD 145 (4 December 2015). In my view the structure must be replaced at the OC’s expense.
“Where work is carried out by or on behalf of an Owners Corporation in fulfilling its obligations under s 62 of the Act there is a collateral obligation to repair any damage caused to the property entered by the Owners Corporation or its contractors.”
NB: [s62] of the SSMA 1996 is the duty of an owners corporation to maintain and repair. This duty is now found in [s106] of the SSMA 2015.
How can this be, Lady Penelope, it doesn’t sound right?
I haven’t looked at the case you reference but it seems very clear, because you mention the ‘common property is not only exclusive use but also by the by-laws to be maintained by the lot owner’, that the lot owner should pay under both the old Act and the new Act.
Fey Knows – I suggest you read the case to fully understand the facts of the case, the nuances, and the reasoning.
It was Backstick and not me who mentioned the ‘common property is not only exclusive use but also by the by-laws to be maintained by the lot owner’.
The factual scenario of the El Khouri case (those that relate to Backstick’s issue) in a nutshell are: The waterproof membrane on the exclusive use balcony was leaking. All internal and external waterproofing is the responsibility of the Owners Corporation (including the function of any structure) except where a lot owner causes damage to waterproofing. The exclusive use owner had not damaged the waterproofing. The OC had previously given approval to the exclusive use owner to build a structure on the exclusive use area with a by-law giving responsibility to the exclusive use owner to repair and maintain the structure. The structure built on the exclusive balcony needed to be removed so that the OC could gain access to the membrane to enable repairs. The OC was responsible for reinstalling the exclusive use owner structure once the membrane was repaired.
Backstick – In my opinion it would not be unreasonable for your OC to ask that the Owner ‘sign off’ with a written confirmation that their structure has been re-installed satisfactorily by the OC. Once the owner has accepted the re-installed structure as being satisfactorily installed then from that time forward I would have thought that it would be the owner’s responsibility for any leaks and squeaks etc.