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@Lady Penelope said:
Changing the appearance of common property requires a Special Resolution (i.e. 75% of the vote).I’m having trouble finding that requirement in the Act. Is it s.108?
But I suppose if the other 3 owners are OK with the colour, they’d even be able to pass a special resolution.
@Genna said:They are claiming I’m out voted.And there’s your problem.
If you force this and it’s put to an actual vote, you’ll likely be out voted. A new OC decision can override an earlier OC decision.
It seems the other owners are OK with the colour. It’s quite a subjective thing. And it seems the other owners might not be too happy about having another formal vote.
So unfortunately, you are most likely on your own, I’m afraid.
@Lady Penelope said:
This article is well worth reading:It’s a very interesting analysis.
The authors note that s.106(5) uses the words “reasonably foreseeable”:
any reasonably foreseeable loss suffered by the owner
And that’s why they think damages would have been awarded to McElwaine under the 2015 Act.
In my above example of a burst copper water pipe inside a solid wall, I wonder if it would be considered a reasonably foreseeable event?
I can’t see how the OC could have reasonably foreseen it (to prevent it), in which case the OC might not be liable for any damage it caused to lot property.
@JimmyT said:Others say that the Who’s responsible document is irrelevant – common law says that if something belonging to you causes damage to something belonging to me, then you are liable for repairs.
I think that’s part of the issue. Common law doesn’t actually say that. Usually negligence is required. And in many circumstances common law has been replaced with other laws.
I agree that an OC could often be seen to be negligent. But sometimes that’s easier to say that than to prove.
In my latest example, and I’ve been through a few similar situations, a copper pipe burst inside a masonry wall. It was, according to the OC, the first time it’s happened. So exactly how would the OC be considered negligent? How could they have reasonably prevented it from happening? Did they breach any maintenance responsibility or duty of care?
Sure I could commence action against the OC. The OC has insurance including liability insurance. But the insurance company declared the OC not to be legally liable. And most OCs would most likely accept that as being correct – after all the insurance company should hopefully know the situations that their policy covers…
I agree that a roof might be another matter but think it can depend on the circumstances. In another OC to the above, we get the roof professionally inspected annually. The OC does this because it has been professionally recommended. If a defect occurred that the annual inspections didn’t pick up, I’m not so sure the OC would be legally liable if that defect affected lot contents. And that has actually happened. Fortunately insurance covered everything that time.
As to the “who’s responsible?”, that has to be voted on to be valid and it doesn’t of course mean an insurance company will be bound by it, so the OC itself might have to foot any bill. In my case of the burst water pipe, lot property was damaged in order to access the pipe to repair it. But the insurance company repeatedly refused to pay for that lot property damage. So I’d have to claim against either the OC or my contents insurance. I’m not sure I’d win the former and I’d have to pay excess on the latter.
Having both building and contents insurance is really the key to getting all damage covered. But as the OP has discovered, a contents insurer might not pay until they are satisfied that the building insurer has denied cover.
@scotlandx said:
It doesn’t matter whether you have an insurance claim or not – the primary issue is whether a defect in the common property caused the damage to your property.If it did, then the OC is responsible for fixing the damage. They have to lodge the insurance claim, and if it is refused then they have to pay anyway.
I think it depends if the OC is legally liable for the damage. And that might depend on the exact circumstances.
My experience is that the OC must be negligent for them to be legally liable. It might be hard to establish that is some situations: burst water pipes inside walls comes to mind.
I’ve just gone though that exact event and neither the OC nor the OC’s insurance company (CHU) would repair damaged lot property as they claimed they were not legally liable. They said claim on contents insurance. They did repair damaged common property and damaged lot fixtures and fittings covered by the OC’s building insurance.
This building management company has the same view:
Unit Owners Exposed to Uninsured Losses
There has to be some sort of negligence proven against the Owners Corporation or Body Corporate for there to be any sort of potential liability.These can be complicated matters that may or may not involve insurable events, maintenance (or lack of), legal liability, negligence … the list does goes on.
But there’s nothing to stop you asking questions directly to your OC/BC’s insurance company or insurance broker. That’s what I sometimes do.
I found this recent (August 2017) paper on the topic from the law firm JS Mueller & Co:
UNAUTHORISED WORKS: WHO IS RESPONSIBLE FOR REPAIRING THEM?
It does have a somewhat different view.
@scotlandx said:
Any DA needs the approval of the owners in a general meeting, by ordinary resolution.As an aside, we have had 2 x DAs (Planning Applications in VIC) passed by our council without even a “hello” from the council to the OC. As the OC chair, I found out only by other means – eg by looking at the council website from time to time. Smaller works don’t even need street advertising or neighbour letter box drops (at least in my council they don’t).
Both DA/PAs altered common property on the outside of our apartment building. In both cases the lot owner declared themselves to be the owner of the property to be altered. The council approved both applications and issued permits.
You’d think that councils should know better! (and a bit about common property in apartment buildings) When I pointed out to our council that the applying owners were actually altering common property that they did not own, the council agreed that their applications were invalid. But the council also informed me that regardless of that, the council approval of the works was still valid. And that there were several court cases that had established that validity.
So there it is. Anyone can submit a DA/Planning Permit and if the council approves it, there can be a valid permit even on property you don’t actually own!
Unbelievable but true.
It’s all probably fixable, but not without a fair bit of hassle for the actual owner (the OC in our cases).
@Lady Penelope said:
In my opinion an OC should not be ultimately responsible for an illegal addition. The OC may initially be made responsible by the Council but then the OC can shift the responsibility onto the current owner who has inherited the defects and mistakes of the previous owner.
Our council was crystal clear: the current owner (the OC) fixes it or gets fined. We got that in writing.
The OC could of course pursue the previous lot owner. But that might be legal action outside the OC Act.
Lady Penelope said
The OC should be seeking legal advice about this issue.I agree. We did that. There were several lawyers involved in the end.
@Lady Penelope said:
If the OC was to be made responsible for every illegal addition then there would be many more owners doing it.
Not when the owner that made the alteration is still the owner. The OC Act then still applies. I think that’s a key difference.
art said
Is this now the OC’s responsibility to obtain council approval and sign off.Yes if it’s common property alterations, because, in the absence of a specific by-law, the OC owns and maintains all common property.
@Lady Penelope said:
Similar answer to JT.Caveat emptor = buyer beware. The buyer has ‘inherited’ the problems of the previous owner when they purchased the Lot. The responsibility lies with the new owner to obtain the correct approvals. The responsibility does not lie with the OC.
I think that only applies to lot property. Without a by-law, the new lot owner is not responsible for any common property alterations that they didn’t do. They only purchased a share in the common property.
scotlandx said
The OC needs to contact the Council – I think they would be very interested in the illegal works.In a similar situation, when my council found out about unapproved and non-compliant common property alterations, my OC was threatened with legal action by the council (a large fine). We had to bring the works into compliance. The lot owner wanted to keep the alterations, so agreed to paid for that.
I agree too that the OC can choose to inherit or remove the common property alterations or negotiate with the new lot owner about their compliance and on-going maintenance costs.
AFAIK all the xCATs have a process to follow.
For NCAT, some information is here:
Basically it will become a court matter. And that becomes a pretty serious matter!
AFAIK, NSW is unique in this area of strata law.
While I agree it can be useful to know tenant details, in reality an OC/BC can never know for sure who actually resides in a lot (owner occupied or leased).
I think it’s overkill. And it runs the risk of turning away people who might be good on the committee. I think it would put me off (I’ve been a member of OC/BCs for 38 years in NSW, ACT, VIC and overseas, mostly as a committee member or chairperson).
FWIW, here are the Victorian requirements:
117 Duties of committees and sub-committees
A member of a committee or sub-committee of an owners corporation—
(a) must act honestly and in good faith in the performance of his or her functions; and
(b) must exercise due care and diligence in the performance of his or her functions; and
(c) must not make improper use of his or her position as a member to gain, directly or indirectly, an advantage for himself or herself or for any other person.So fairly simple and broad. It’s up to a tribunal to interpret and enforce it. Which would be the case with a more complicated by-law/rule as well.
Perhaps have a look at how harmonised legislation as been introduced in other areas?
The states/territories still need their own individual acts. But those acts copy or refer to the national act. So the states/territories still have room for individual variances but the bulk of the legislation is harmonised.
WHS/OH&S legislation is an example of harmonised legislation. The national WHS act was apparently mostly based on the Victorian state OH&S act. But when it came to introduce it, the Victorian government was the only one that actually backed out.
Anyway, I doubt harmonisation will happen in strataland anytime soon. So we still will have the 8 (?) versions of strata law for many years to come.
@JimmyT said:But for the first time we will have to address a national readership with all the myriad subtle (and not-so-subtle) differences between different states’ strata laws. My mind is already boggling.
Great news!
I realise that NSW is around 30% of the Australian population but there’s still around 70% left! 🙂
One day (and it won’t be soon) there might even be “harmonised” strata laws. The state and territory governments have actually done that in several other important areas, so it’s not an absolutely impossible dream.
But until then we have at least 8 versions of strata law …