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One lot in our building has a damaged kitchen ceiling caused by a leak from the balcony above. The balcony above is common property, but the lot owner above enjoys exclusive access to it as the balcony can only be accessed through his lot. It’s “his” outdoor space – no one disputes this.
A previous owner re-tiled that common balcony without approval and it’s leaking – hence the damage to the ceiling in the lot below. There is no by-law in place passing responsibility for damages associated with the retiled balcony. Everyone is in agreement that the previous owner re-tiled without approval.
Questions are 1) who is responsible for fixing up the re-tiled (leaky) balcony and 2) who is responsible for fixing up the damaged ceiling below?
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Questions are 1) who is responsible for fixing up the re-tiled (leaky) balcony and 2) who is responsible for fixing up the damaged ceiling below?
Section 106 of the Act says this: 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.
As you have intimated, in the absence of a by-law to say otherwise, the balcony is common property, and as section 108 of the Act indicates, if a by-law doesn’t specify that a renovator has taken over responsibility for affected common property, then responsibility defaults to the owners corporation.
Now, since the common property has failed, causing the damage to the ceiling, in my opinion the OC is responsible for the repairs. Why? Because when they saw the previous owner was tiling the balcony and they did nothing about it, they took responsibility for whatever consequences might arise.
That’s the price of a nod and a wink.
The question of liability for the damage has been hotly disputed in these pages in the past but if I was the owner of the affected apartment, I would run this all the way to the Tribunal, if need be. We have heard of cases where the OC has refused to claim on their insurance (to avoid paying the excess and maybe affect future premiums) and the apartment owner has gone directly to the insurer who paid up.
This is a lesson for everyone in strata who allows common property to be changed without the appropriate by-laws in place. Anything for a quiet life ceases to be relevant when you are having to raise levies to pay for repairs when a renovator is long gone having sold their apartment to someone who is none the wiser.
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