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@Digby said:
Hi,1)In regards to your leaking water issue if this is coming from the common wall of the property, this is a body cop issue. They may use the strata insurer to recover cost of repair.
2) You would require copy of strata building plans lodged with local council for development application of the lot. Possible mediation with the owners corporation to resolve the issue.
Unfortunately, in the OP’s Victoria, it’s not always the case.
Here are a couple of links about it:
https://www.bcssm.com.au/files/pdf/Committee_Updates_VIC/BCS_VIC_Common_property.pdf
We have had the legal opinions mentioned in the second link and I can tell you the strata lawyers’ “preferred opinion” was that tiles and any waterproof membrane of a lot balcony or terrace (when boundaries are declared INTERIOR FACE on the Plan of Subdivision) was an owner responsibility. It’s the same with lot bathrooms and laundries. Other legal opinions might vary.
In Victoria, strata Plans of Subdivision are actually available, on-line, from Landata:
https://www.landata.vic.gov.au/
In my experience, strata insurance does not cover building defects themselves. It might however cover the subsequent damage caused by that defect. Building warranties might still apply depending on the age of the building.
I’ve seen similar photos. Your issue is actually quite common.
It’s best to get a professional assessment.
But I do know that walls in basement car parks can actually be structurally designed to weep after rain. The water should however get drained away. And if it is affecting storage or causing a nuisance, the OC should be looking to get the problem remedied.
Get the professional assessment anyway. Because even if it turns out to be built to code, the questions from owners will still keep coming.
I have been in a similar situation (in Victoria) several times.
Plans of Subdivision, while often straight forward, can sometimes need expert interpretation to clarify boundary responsibilities.
In Victoria, it can be more complicated than other states because although the OC remains responsible for common property, which can include deck, terrace and balcony structures, the lot owner can be responsible for the surfaces of those structures in lot airspace. And that includes tiles and waterproof membranes.
Our legal interpretations have cost a few $100 each. And we were given quotes before agreeing to pay for them.
If you pay for a legal interpretation that supports your view, that the matters are an OC responsibility, it will be a very strong message to the OC committee. It might be worth investing in one before you go down the VCAT path.
But is renting a car space actually sub-letting?
I’ve been told by state RTA authorities that renting a car space has nothing to do with residential tenancy agreements. Because it’s not actually a residence.
They can be wrong, I know!
If any applicable Determination of Development Consent does not exist for your building, there is s.49 of the Strata Schemes Management Act 1996 that restricts dealings relating to a lot.
S.49 states: “No by-law is capable of operating to prohibit or restrict the devolution
of a lot or a transfer, lease, mortgage, or other dealing relating to a lot.”Most parking spaces are lot property.
Sub-letting however can be an issue under residential tenancy laws.
First, I’d like to re-state that the OC needs to fix the problem.
Second, about the insurance: Realise that OC Liability Insurance is cover for something that the OC has done wrong.
Legally wrong.
So the question is about how wrong the OC has to be before the insurance that covers that OC wrong, cuts out.
It’s never going to be a good answer. It’s always going to be a shade of OC bad.
The OC should not have done it in the first place – no argument from me. But why have insurance for legal liability unless it covers the OC when the OC is … well … legally liable? Is there a point to it otherwise?
pmo says it’s “black and white” but the law referenced is all about disclosure at the time of taking out a policy or re-newing it.
What happens mid-policy? Because that’s the issue being discussed here – or at least I thought it was … If the OC is told that it’s neglecting maintenance on something, does that mean the OC’s liability insurance relating to that something then becomes invalid?
I can’t see how individual owners will be held “personally” liable for an OC responsibility. But I would be interested to know.
@scotlandx said:
In relation to the external access staircase – given the advice provided by the engineer, the OC needs to take urgent/immediate action to prevent access to that staircase. If it doesn’t, then the OC is likely to be liable for anything that occurs such as injuries to a person using the staircase, and an insurance company would not pay out on it. That is a very serious matter as the owners will be personally liable.I totally agree with the getting the repairs done. The OC seriously needs to attend to it.
I disagree that “the OC is likely to be liable for anything that occurs such as injuries to a person using the staircase, and an insurance company would not pay out on it.” And that “owners will be personally liable”.
The OC’s compulsory liability insurance is taken out specifically to cover the OC’s legal liability including when the OC is negligent (eg due to lack of maintenance).
What can happen is that the insurance company will refuse to cover the OC again unless the OC first makes the necessary repairs.
And that’s serious too. The OC must have compulsory liability insurance.
When I look at my insurance policies and the polices that my OC has, when it comes to Liability to Others (meaning not the property of the OC) – they typically state something similar to this (this quote is from CHU):
Liability to others
We insure You up to the Limit of Liability shown on the Schedule if
You become legally responsible to pay compensation for:
Personal Injury; or
Property Damage;So the OC needs to be legally responsible. That’s where the law comes into it. In this situation (liability to others), insurance will cover the OC if by law they are responsible.
It would seem that in the guttering example, 2 insurers came to same conclusion: that the OC would not be legally responsible. The OC’s insurer asked for proof of negligence (which is usually needed to establish liability) and the damaged car owner’s insurer didn’t think they had a case or they would have most probably claimed against the OC. They might both be wrong but in my experience they tend to get these matters right.
But if the matter went to a tribunal/court where it was ruled that the OC was in fact legally liable, the OC’s insurer would have to cover them.
@Whale said:
So returning to Austman‘s point (post #15), even if two (2) insurers decline to accept a claim by the O/C for reasons of negligenceBut that’s not what I said. The second insurer, Keep Calm‘s own private insurer (I’m guessing car insurance), has nothing whatsoever to do with the OC and probably isn’t the same company as the OC’s insurer. Yet they determined that they would not win a claim to recover their costs against the OC.
By all means challenge something in the tribunals and courts. But do a bit of research about tort law in Australia. The insurance companies know that law extremely well and have done their assessments. They make mistakes sure. But if they have it right, the same law and circumstances will apply for any claim Keep Calm makes directly against the OC.
Anyway, good luck Keep Calm if you choose to go down this path. I don’t know that weeds in a gutter add extra weight when water weighs more – but it might point to a general lack of maintenance.
@scotlandx said:
If damage is caused to someone’s property by common property, then the OC is liable for the damage. Whether or not it has been “maintained” is irrelevant. There are many cases where you don’t know something is wrong until things go awry.The OC generally has to shown to be negligent to be liable, but their insurance might cover the situation regardless.
@scotlandx said:
We had strong winds that brought our awning down and our insurer accepted that claim, strange that Keep Calm’s insurer is making a distinction.
The distinction is that the OC’s insurance will most likely cover storm damage to its own property. It’s any subsequent damage to other property as a direct result of the storm where they might not be liable.
In my involvements with our OC insurers, I’ve generally found their assessments to be pretty accurate in these matters. They might be wrong about the lack of negligence but they usually get it right. And it seems that Keep Calm’s own private insurance company came to the same conclusion – because they could also try recovering their costs against the OC.
So for the OC to be liable, two insurance companies have got this wrong, which I admit is not impossible!
The OC’s insurer seems to have determined there is was no OC negligence and therefore no liability?
If the common property guttering was poorly maintained, that’s probably negligence. If a storm caused the guttering to fall it might not be negligence.
While an an OC/BC must repair damage to common property regardless, it does not have to repair damage to other property unless it’s liable for that damage. And that usually means negligence has to be established.
IMO, Keep Calm will now have to establish negligence to successfully claim against the OC either through the OC’s insurer or by any other path.
@justsaying said:
Car spaces are not supposed to be general storage areas and there may be valid concerns related to unsightliness, fire safety and the effectiveness of sprinklers.There can also be OC/BC by-laws (rules) that prohibit or restrict storage in car spaces.
And to note that planning authorities (councils) can have quite strict car parking requirements. It generally would need council permission to change a car space into something that is no longer is a legal car space.
While there is an Australian Standard for car space sizes (AS2890.1-2004), there can be state (and perhaps even council) variations of it.
I’ve never found a requirement about storage and fire safety but note that although there can be sprinklers in modern car parking areas, there are no smoke alarms – not in any of the modern buildings I’ve looked at anyway. So there’s no early warning system like in the other areas of modern buildings. And a fire would probably be well established before a sprinkler gets triggered. That and the fact that car parking areas are often unsupervised is something an OC/BC should consider.
You might like to check to see if your parking space meets the standards that applied when your building was constructed.
The standard that now applies seems to be AS/NZS 2890.1:2004 “Parking Facilities, Off Street Parking”.
In the standard there are minimum width requirements for residential parallel parking bays. For 45, 60 and 90 degree bays it’s 2,400mm unless it’s specifically designated as a space for small cars in which case it’s 2,300mm.
But if there are adjacent obstructions (a wall, fence or columns) that restrict a door from being opened, 300mm should be added to the minimum width.
So in your case 2,700mm (2,600mm for a designated small space) would be the current requirement.
If your space does not meet the standard that was required, when it was constructed (which might not be the same as the current standard), it might qualify as a building defect in which case the strata, assuming they are the owner of the pipes/wall, should make it right.
Otherwise, I think it would be your expense.
This is a rather important sub-topic, that I’ve looked at a few times.
I have received a lot of views from lot owners who think they know the Privacy Act. But it has turned out that they didn’t. It seems that in the majority of circumstances the Privacy Act does not apply to stratas (OCs/BCs) at all. And in general, the affairs of a strata are an open book to all those within the strata. So anything in the strata records is available to any member of the strata. That includes emails and phone numbers used in correspondence with the strata (eg to the manager/committee). I don’t think a strata organisation itself can share that information with anyone for commercial purposes but they can for internal strata purposes.
I do know that all my strata managers in various states, seem to handle it this way. All will supply owner email address and phone numbers if they have them on file. One SM, of a very large strata management firm, has told me that they will hand over a CD-ROM of all the correspondence and records they have, relating to a strata plan, to any owner in that strata plan who formally requests it. Not much privacy there! But I can’t see that it’s illegal.
Here’s some information on the topic from Consumer Affairs Victoria, but as the Privacy Act is a Commonwealth Act, it should be relevant Australia wide:
Protecting privacy in owners corporations
Your owners corporation may only collect and use personal information in a fair and lawful way.
The personal information it holds must be accurate, up-to-date and secure.
As a general rule, the Commonwealth Privacy Act 1988:
- does not apply to owners corporations with less than $3 million turnover (also called gross income)
- will apply to an owners corporation, regardless of turnover, if it discloses personal information to another party for a benefit, without the consent of the person concerned, or without being authorised to do so by an Act of Parliament (such as the Owners Corporations Act 2006).
Your owners corporation should:
- require a written request from all people seeking to inspect the owners corporation’s records. This identifies the person making the request and can be used to report to the owners corporation, and
- supervise records inspections to ensure that documents are not lost, destroyed or interfered with.
A person whose details are kept in the owners corporation’s records or register may apply to the Victorian Civil and Administrative Tribunal (VCAT) to restrict access to that information. The tribunal will only restrict access in exceptional circumstances and only for a limited time.
@bernie said:
It is generally accepted that it is the responsibility of the Owners Corporation (OC) for repairs required to the tiles and/or waterproofing of balconies.Not in Victoria, as you have noted.
It’s not the situation in Victoria because tiles and waterproof membranes are considered to be surface treatments, similar to paint. Boundaries declared as Interior Face do not include lot surface treatments as common property. Although they are exterior to the building, balconies and terraces are considered to be interior for subdivision purposes – they should be thought of like a bathroom. Therefore, if Interior Face, tiles and waterproof membranes affixed to the interior/airspace side of a lot balcony boundary (eg on top of the balcony slab) are not common property. The 2011 Registrar’s requirements only clarified this.
In NSW it’s different. Original tiles and waterproof membranes affixed to common property walls, floors or ceilings are considered common property.
It’s more to do with how subdivision boundaries are defined rather than the OC Acts. In both states the OC must maintain common property. But the boundary definitions are different between Victoria and NSW.