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Topic
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I’m in NSW and have an issue with a misaligned wall (a common property fence) that the strata committee is refusing to fix, as they believe it’s stable.
Am I correct in understanding that they are legally obligated to address this, even if it’s not an immediate concern, or at least include it in a plan for future repair? My understanding is that Section 106 imposes a clear responsibility on the Owners Corporation to maintain and repair common property.
Additionally, this misaligned wall was caused by a tree on common property, which the strata is also refusing to remove. I believe the tree should be removed because it has already caused other damage to common property, such as the garage walls, which was identified years ago. An engineer has also recommended the tree’s removal.
Should I escalate these issues to NCAT? Are there any case laws that could support my case?
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If you think there is an issue with the wall, then the next step would be mediation and then NCAT. Under section 232(2)
To support your case at NCAT you would need to have a report done on both the tree and the wall. Hearsay and opinion do not sway tribunals.
If you win you may be able to recover these costs as the reports could easily have been commissioned by the OC, to either infirm or rebut your opinion.
The person providing the report (e.g. a builder, engineer) should also have photos of the problem.
You also need evidence of you asking for the work and the owners corporation refusing to do the work. An email chain showing that you asked for something to be done and they rejected it. Or minutes from a meeting where they dismissed a motion to do this work. Phone calls are not good enough. Get it in writing.
If your local council has a tree preservation order covering your area, someone will need to persuade the council inspector that the tree should come down.
For what it’s worth, our strata development had a brick retaining wall that had a bit of a lean to it and had had for quite a while. We got an engineer to look at it. He advised that it was not unstable or unsafe and might be fine like that for many years. He advised how far it could go before we would need to worry about it. We monitored the lean at several points with a plumb bob several times a year. For most of a decade it barely moved but eventually it reached the point where we had been advised that we would need to rebuild it, so we then got a builder in to build us a new wall at that time. We now have a nice straight wall.
In short, fix it if an engineer says it is unsafe. Save your money if it is not unsafe.