Current Page

[Roger R]

Hi Jimmy,

We recently had to have a builder investigate shower floor tiles that were lifting next to the wall to a common corridor.  The owner’s corporation commissioned this investigation because the problem appeared to be related to the common wall.

That has created the need for an urgent repair so that we can use the shower room, but the original builder and developer may have some responsibility. The strata manager also seems to think I may have responsibility for paying for repairs to the tiles on the internal wall of the shower to the laundry, even though the water has come from poor construction and flooding from the common corridor.

Questions : Could the owner’s corporation delay the repair indefinitely while the issues of responsibility are resolved? I am prepared to lend the owner’s corporation the costs until they can collect the necessary funds. If the builder and / or developer decline to pay for all or some of the repair costs is strata obliged to pay for the repair?

The details below explain the complex background.

When the investigating builder lifted the area of floor and wall tiles next to and on the common wall he found that the original builder had  used “wet bedding” to lay the floor tiles and that the cement and water proofing below the tiles was completely compromised.  He then extended the investigation to remove more floor and wall tiles to find that there were four points of water ingress under the shower tiles.  One was a clear result of a flooding incident in the adjoining common corridor described below and the other three points were caused by poor construction including “wet bedding” and the shower drain not having been installed correctly.

The common corridor flooded in April 2015 as a consequence of a hail storm flooding the adjacent external roof access area and that flood leaking into the corridor.

The corridor carpet was replaced at the time through the building insurance. The building is still under warranty and the owner’s corporation pursued the developer and builder about the drainage in the roof access area, which had failed to cope with the hail storm flood.

The roof access area had a bed of pebbles above the drain itself and below two large trees that shed small leaves into the pebbles making them hard to keep clear for through drainage. So although the builder maintained this was a maintenance problem there was also some indication that the drain itself down into the garage below was leaking so the builder removed the pebbles and re -water proofed the roof access area; without accepting responsibility for the hail storm flood.

When the recent investigation took place it was clear that the hail storm flood  had  soaked the shower’s mutual wall to the corridor and contributed to the other water penetration under the tiles from use of the shower over the 6 years since the unit was purchased new.

We now had a partly demolished and unusable shower room. I asked the investigating builder to provide a quotation and report on the problems for the owner’s corporation, informed the strata committee and manager, and informed the developer and original builder with the investigation report.

I then progressed the repair for two reasons: 1) we need to be able to use the shower room and 2) there is a history of the original builder taking months to resolve other water leak issues in the building, including ones from our roof into the unit that started at the same time as the April 2015 hail storm, continued frequently and were only solved in December 2016 after persistent complaints from me. The latter point means that we could not rely on the shower room tiles problem being solved promptly.

The strata managers and treasurer say there are insufficient funds to available to pay for the repair and in any case they would want to claim the costs from the builder and / or developer. The issue of maintenance mentioned above and flooding from the corridor in combination with the apparent construction flaws make it likely that resolution of responsibility will be time consuming.

I am happy to pay for the repair on behalf of strata, although I believe strata should pay the investigation fee as a work order was issued for that. I am sorry for this lengthy account but it is a complex problem.

Roger

Topic

[Lady Penelope]

Roger – Can you ask the Strata manager how much money is in the Sinking Fund, don’t just take their word for it that they do not have sufficient funds? Also, ask how much the repairs will cost?

In my interpretation the OC has a strict duty to maintain and repair the common property. The OC should make the repairs FIRST and then chase the responsibility for fault costs after that. It is unreasonable to expect that maintenance is delayed until responsibility or fault is determined as this could take months. If money needs to be raised by the OC then a Special Levy is an option.

Quote

[Jimmy-T]

The tiles on a wall adjacent to common property are owners corp responsibility, according to the “Who’s responsible …” document.

Note 11: The tiles on the floor or on a common wall that separates 2 lots or the lot from common property are the responsibility of the Owners Corporation. This includes the shower base. 

According to section 106 (4) of the Act the owners Corp can delay fixing common property until after a dispute over responsibility has been resolved provided “failure to comply will not affect the safety of any building, structure or common property in the strata scheme.“

I would say that not fixing the shower tiles affected its safety.

Lack of funds is not a reason for not effecting necessary repairs and your strata manager should know this.  A special levy or, preferably, a strata loan should be raised to get the building fixed (if the builder refuses to fix it) then deal with getting the money out of them later.

This is Strata Management 101.  If your strata manager doesn’t understand this, they maybe should go and get a job selling real estate where their lack of knowledge or absence of a sense of duty won’t do any harm.

Section 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.

(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme. 

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.

Quote

[Roger R]

Thanks Jimmy and Proudsceptic4

Quote

[Author]

Replies