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[shedsrus]

Our strata is a small 6-lot affair where one Lot is tenanted on an infrequent basis by the owner and short-term letters through a local holiday letting agent plus on-line. For large parts of the year the place is empty and this has been the case for around ten years.

Over that time there have been many issues involving damage to common property, unsociable actions, noise and disturbance by both the owner, his extended family and other “holiday-makers”.

In recent times the OC has taken steps to address these problems including having damage repairs paid for by the owner. Should have been done sooner I know. Long story. Different OC members.

Being a highly exposed coastal property where wind and rain can come suddenly and with great velocity an on-going problem has been ensuring windows and doors are closed during absences, be that during a tenancy or after when the place spends long periods empty.

Over the years it has been a challenge to a number of previous other owners in getting the Lot owner or his agent to close windows and doors in a timely fashion either before, during or even after these weather events. Assuming they have been noticed as being open in the first place given that the unit is on a top-floor position and not easily checkable.

This Lot owner has now identified damage to walls and skirting-boards which he is saying is due to a building defect and must be repaired at strata expense.

The OC is of the view that damage has been caused by neglect and not as a result of a defect.

The OC does understand that it is responsible for maintaining the CP but would like to think there is a case for having the owner contribute some or all of the funds.

Is anyone aware if a precedence with this?

Thanks,

Michael

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[Sir Humphrey]

Can the lot owner identify the building defect that he claims has caused damage? If not, and since the OC has a plausible alternative explanation, it sounds like you have a reasonable case. You could offer the owner a chance to make the repairs and say the OC will make the repairs and bill the lot owner if they are not made by a certain time. Take lots of photos, have an expert report (say, from a structural engineer) showing that there is no defect which would have caused the damage and suggesting that leaving windows open is a more likely cause of the damage. You might need the photos, expert opinion and paper trail if you go to the tribunal to recoup the OC’s costs for the repairs. 

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[Jimmy-T]

I would take a very slightly different tack.  Send the owner a letter demanding that the common property walls etc be repaired and let them try to prove that it’s a building defect. There must be adjoining lots that don’t have these problems.

If they don’t respond, take action at NCAT including orders to access the property to undertake the repairs at the lot owner’s expense.

Be sure to keep ever scrap of paper and diarise every phone call that refers to damage from windows being left open. 

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[Sir Humphrey]

Yes. Just do what JT said. 

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[g-g]

I agree with JT and Sir Humphrey.

Defects are ‘systemic’ not isolated issues –  so if only one lot has a problem then there is no defect.

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[Sir Humphrey]

It is conceivable that a defect of the common property might affect only one or a few units. For example, at our set of townhouses, there were two carports whose walls on the unit boundary also served as retaining walls for the adjacent common property. Over the years, the soil level of the adjacent common property had been allowed to build up higher than the level the walls were designed to retain and the common property also lacked sub-soil drainage. Those two defects of the common property caused the walls to crack and bow inwards to the point of becoming unstable and risking the collapse of the units’ carport roofs. The OC recognised that the damage to private property had been caused by defects of the common property and we made the necessary repairs, paid by the OC. We checked other units. We did some precautionary work next to two units but none of the rest had this sort of problem. 

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[shedsrus]

Thanks for all your responses folks. It is much appreciated.

Given our historical lack of evidentiary details I am coming to the view there is not much we can argue that a tribunal would apply favourably to our case.

CP is damaged and is the responsibility of the strata to repair. Proving how it got that way is the difficult bit.

Certainly a different tack will be taken going forward an it is disappointing that someone has to become the strata-cop diarising and photographing every thing that goes on.

Thanks again.

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