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I am on the Committee. Current situation is we are told to add the repair to a list and then there is a vote as to the order to when it will be done according to the money we have. I was told that it could take to up to a year.
Who is telling you this? Is it a committee decision? No-one in the committee has more authority than another in the committee unless there’s a hung vote. But if the committee as a whole considers the works to be non-essential or unnecessary then you might have to convince them otherwise.
When raised with the Strata Manager, he has said that he takes direction with the Owners Corporation as to which repairs works are undertaken and that is based on majority rule.
That’s correct to a large extent but the SM should also be advising the OC on their legal obligations regarding required maintenance.
What looks to be essential maintenance to you might not be seen that way by other owners. So to some extent it can be up to you to establish that the works really are required.
Sections 36 to 45 of the Act also state that you have to establish a maintenance plan and then provide the funds to effect the plan.
Except that only applies to “A prescribed owners corporation” which, in Victoria rules out most OCs. For the rest it’s optional.
The OP should really get on the strata committee and see to it that the works are funded and done.
I would first inspect the strata records, that should be held by the manager and establish the facts.
S.146 of the OC Act gives you that right, free of charge (to you).
On a technical note for Victoria, I note that each time my committees are elected (at each AGM) there is another motion that delegates the functions and duties of the secretary to the strata manager. That’s in the rest of s.107:
107 Secretary of committee The members of the committee must appoint a member of the committee or the manager of the owners corporation to be the secretary of the committee.
It seems that many strata managers in Victoria prefer it that way.
So Victorian strata committees, at least in my experience, where a strata manager exists, tend to be comprised of the chairperson and the rest of the committee.
The committee chairperson technically doesn’t have that much more authority than other committee members. They can also call meetings and have a casting vote but that’s about it. In reality however, they tend to be the main point of contact for the OC and are the main interface to the manager.
Vicres is in Victoria.
In Victoria a “unit” is usually a free standing home (a villa) in a horizontal strata subdivision.
Vicres needs to check their Plan of Subdivision but typically in such developments the lot structures belong to the lot and are not common property.
“Under the Owners Corporations Act 2006”
This is in Victoria?
It seems to me that the strata manager gave you general advice without being specific enough. They really should have done better! Under the circumstances, you could, I suppose, start a dispute process.
I agree that AC installers will often take the easiest installation path. But it shouldn’t be too hard to change it, even now. Outdoor units can be easily moved and reconnected. It will however cost you. But make sure that this time, the new location meets the committee’s requirements.
What the OP first needs to do is to check their Plan of Subdivision.
Victoria is different in this area eg to NSW. In Victoria it’s the PoS, that defines what parts of a strata building are common property and what parts are lot property.
While I agree that the OP’s balcony is very likely to be common property, even substantial parts of apartment buildings in Victoria can in fact be lot property, especially if that part forms no structural element for the rest of the building. For example, I own in a CBD high rise where every second floor structure (and I mean a floor structure within a lot, not a “floating” floor) is deemed lot property as it serves no structural part of the whole high rise building.
As for the poles in the other lot’s courtyard, again Victoria can be different. Implied easements under the Subdivisions Act 1988 allow such things to be in other lots or the common property so again they can can be still a benefiting lot owner’s responsibility to maintain.
So check the PoS first! You must be certain that it’s actually common property.
When it’s confirmed that it is common property, the next issue is how the repairs are funded. Again, Victoria is different in this area eg to NSW. If the OC decides to use a Special Levy to fund the works, as is quite likely in smaller stratas that are not required to have a separate maintenance (sinking) fund, they must then apply the benefit principle when deciding how to pay for the repairs. The benefit principle states that lots that benefit more should pay more. If the works are only likely to benefit eg 2 of the 4 lots, then it’s only those 2 lots that should pay.
While I can appreciate what the OP and others are saying, the actual laws on privacy are in fact quite limited.
So while the OC, the OC committee or the OC manager might choose to use just lot numbers, I doubt they will breaching any actual privacy law if they don’t.
This is the “Benefit Principle” which exists in Victoria. That lot owners that benefit more from certain OC works could pay more.
Sections 23, 24, 28 and 53 of the OC Act (Victoria) relate to it.
S. 28 only confirms that an OC has the right to use the “Benefit Principle”. But in practice, applying the “Benefit Principle” is dependent on how the works are funded.
S.23 (3A) specifically rules out applying the “Benefit Principle” for ordinary annual budgets and the ordinary levies used to fund them. This would include long term maintenance funding in the annual budget.
S.24 (2A) and s.53 (1B) specifically rule in the “Benefit Principle” for extraordinary expenditure or certain upgrading works and the special levies used to fund them.
The bottom line is that it’s only when a special levy is struck that the “Benefit Principle” can be considered. And even then it must be considered with caution.
Some VCAT guidance on how to use it is here, from part 16:
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/vic/VCAT/2017/1550.html
It’s tricky because to be successful in claiming legal liability you generally need to establish negligence.
Burst common property pipes are usually an event that is not due to OC/BC negligence. And if that’s the case, your chances of wining a claim against the OC/BC on liability grounds will be small.
You can certainly try claiming on the OC/BC’s insurance. But OC/BC insurance policies usually specifically exclude lot contents except for lot fixtures and fittings. Lot carpets and floating floors are usually specifically excluded.
So you’d have to try a claim under the OC/BC’s legal liability cover.
Sometimes it works.
There can be quite a difference between being responsible for the maintenance and repair of an item (like a burst water pipe) and being liable for any damage that it may have caused both from the issue itself and from the works needed in fixing the issue.
The strata manager seems to know the difference. Insurance companies know the difference. I think I now know the difference. My lot property (floors) have been damaged a few times in such circumstances so I’ve had to clarify it in some depth eg with insurance companies.
“Owning” and fixing the problem does not always mean owning and fixing the consequential damage that the problem caused. If the OC was legally liable for the consequential damage caused, of course it would have to fix it and its insurance would likely cover it – either in its building cover or its legal liability cover. But in many cases, particularly with water issues like burst pipes, the OC is not actually legally liable for any consequential damage as there usually is no negligence involved. So yes, in those cases the lot owner can have to pay for lot property damage caused by the problem and in the fixing of it. Or at least the lot owner’s contents insurance company can have to pay.
It’s another reason for lot owners to have contents insurance. In “no fault” situations like burst pipes, the OC repairs the common property while the lot owner repairs lot property. And each can claim on insurance for the consequential damage caused. The OC’s compulsory insurance will probably cover damage to lot fixtures and fittings but usually not to lot carpets if the OC is not liable. Hence the problem. The OC can’t even insure lot carpets even if it wanted to. It could however decide to pay anyway even if it was not liable.
I agree with the strata manager.
Carpet is a lot responsibility and neither the OC/BC nor the OC/BC’s insurance company need to pay for its restoration unless the water leak was caused by OC/BC negligence. If the leak was not caused by negligence (eg it was due to a burst pipe) it doesn’t matter that the carpet had to be damaged in order to access and repair the leak.
The lot should be claiming on their own contents insurance.
IMO it would be a brave committee to approve the replacement costs of a 19 year old carpet that the OC/BC is not liable for. But the whole OC/BC could decide to do that at a general meeting.
Daisy55 – Has your VCAT case been heard yet?
Did you win?
As you probably already know, when all else fails it’s VCAT or the council that must be turned to. And professional legal advice will help with those actions.
It seems to be an arrangement that’s becoming more common in Victoria, especially in mixed development strata schemes.
The visitor spaces are managed by a car park operator. There can be a fee charged for visitor parking.
There should be a commercial arrangement between the OC and the car park operator. It would be important to find out the details of that arrangement. The OC might be receiving an income and the arrangement might be for a set period similar to a lease.
Your situation is not unique.
And here’s a link that shows how there can be several classes within the one building (see the mixed use example):
https://www.abcb.gov.au/-/media/Files/Resources/Education-Training/Building-classifications.pdf