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At my recent AGM, the OC, which on this night was short of occupiers, voted against upgrading or repairing our 1983 year old lift. The SC consists of 7 members, only one of whom, me, lives in the block where the lift is housed.
The lift breaks down on a regular basis, is so noisy it keeps everyone awake at night, does not line up level with the floors, was made in Europe and is therefore increasingly hard to source spare parts.
Does the SC and/or the Strata Manager have an obligation to repair it? You may well know that this has been going on for three years now.
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If the OC is given advice that an item of common property is dangerous, and they actively refuse to rectify it, then the likelihood of insurance agreeing to pay would be low. An insurance contract is of a particular nature, both parties have to act in good faith.
Ziggy if an accident happened the OC would be to blame, not the lift company. What is the lift company supposed to do?
@Ziggy said:
Regardless of the defeat, is the OC still obligated to fix a dangerous, noisy unreliable lift?We seem to be going round in circles on this and it really could not be simpler.
Under section 106 of the Act (below), the owners corporation has a duty to “properly maintain and keep in a state of good and serviceable repair the common property … “
That duty remains regardless of whether it has the funds or inclination to do so.
The OC can decide by special resolution (only) not to not to do so provided “it is inappropriate to maintain, renew, replace or repair the property” AND “its decision will not affect the safety of any building, structure or common property in the strata scheme.”
You have enough ammunition right there to get orders from NCAT under section 106. You have already had the mediation. I think it’s time to get on with it. The decision of the owners corp to do nothing has no standing in this regard.
The law was designed precisely for situations such as yours. I suggest you use it. Costs etc are not an issue at this stage so don’t even go there. The simple fact remains that the Owners can decide to do nothing if they want, but that doesn’t alter their statutory obligations.
106 Duty of owners corporation to maintain and repair property(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
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@Ziggy said:
The SC keeps going back to the defeated motion and whatever I say or do has had no effect … I can’t win.Yes you can – as has been explained many times now, you can challenge the decision at NCAT.
There’s no point in angsting over who’s right or wrong. The law is quite clear – the owners corp can’t decide not to maintain the lift if it needs repair.
The next step is NCAT. There’s not much point in doing anything else until you have taken that step.
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I also belive that you can win this case. As JimmyT wrote law in this aspect is clear and the owners corp cannot decide not to maintain the lift if it needs repair!