[Austman]

@Whale said:

The O/C’s building insurance does not provide coverage for “basically the same as a Home Insurance policy does on a freehold property”, and anomalous or not, neither it nor the O/C is obliged to replace paint on areas of its common property within Lots unless (another complication) the optional insurance policy that’s now available for paint and wall coverings is selected on the O/C’s policy.

Whale, could you please explain, if the OC’s negligence  led to the damage,  why it is “not obliged to replace paint on areas of its common property within Lots”?

That’s a confusing part, for me at least.  Is there something in the Act that excuses the OC of this responsibility?

[Austman]

I think it’s agreed that this is about liability.

If the OC is liable for the damage caused (including to any lot), the OC has to pay for the repairs.  The OC’s insurance will hopefully cover the OC’s costs.  But if it doesn’t, the OC is still liable.

So the question to ask the OC is “Why isn’t the OC liable for the damage?”.  And if the OC’s answer is “It’s because the OC’s insurance policy will not pay for it”, that’s the wrong answer.  If the OC’s answer is “It’s because the OC was not negligent”, that’s a different matter.

I’ve had a closer look at one of our claims that our insurance company paid.  A building defect allowed water to damage both common and lot property (including lot paint).  The insurance didn’t cover the defect repair but it did cover the damage it caused, at least to common property, as this was not a “lack of maintenance” issue.   The water damaged a lot’s ceiling plaster – which is common property.  It wasn’t possible to repair the lot ceiling plaster without then needing the whole lot ceiling to be repainted – the paint being lot property.   It was therefore probably an example of a common property repair (the lot ceiling) necessitating  the repair of the lot property (the paint).

 

[Austman]

Thanks Whale.  I was asking the question generally, not specially for Victoria.  It’s a important issue that seems to come up quite a lot.

While there can be differences in insurance polices between the states, they seem essentially to be the same.  The one we use (a specialist strata insurance company) has the same PDS for all of Australia.  It has an Optional Benefit for NSW to cover Lot/Unit wall coverings.

We have had common property building defects that allowed water leaks to damage lot property.  Insurance would not cover the cost to repair the defect but it did cover the damage caused to the lots (including lot repainting).   I believe it was covered because the OC was liable to pay for this damage and had a “liability to others” cover in the policy.

Michael Teys (strata lawyer) discusses this on his blog “Lots Damaged By Events on Common Property”:  https://wiki.blockstrata.com.au/2014/09/lots-damaged-by-events-on-common-property/

Michael says “If the owners corporation is liable, then it doesn’t matter if the owners corporation insurance policy covers the lot owner’s damage or not”.

[Austman]

Doesn’t it depend on if the OC was responsible for the leak?  

The OC might be responsible if the leak happened due to a lack of maintenance of or a building defect in the common property.   Then any subsequent damage caused by the leak to a lot would be the OC’s responsibility to repair.

But if the OC was not responsible for the leak (eg it was caused by storm damage) then any subsequent lot damage caused by the leak would be the lot owner’s responsibility to insure and repair.

Is the above incorrect?

[Austman]

Just to note that with parallel parking spaces of the typical 2.4m width, there is requirement to allow an extra 300mm clearance into each adjoining car space to allow for the swing of car doors.   It’s not for the whole length of the parking space but it does means you have to be a bit careful where any fixtures or “obstructions” are placed.   AS 2890.1 is the standard.

I wonder too, when placing a fixture along a lot boundary, or very close to it,  if it can become a bit like a fence or a wall? Sure, the fixture will belong to the owner of the lot in which it’s placed.  But my street is full of examples of walls that are wholly on one side of a boundary where the non-owners have painted and even attached fixtures to their side of it.  It seems to be allowed as long as no damage is done.

I’m maybe other thinking this for a strata car park !!

[Austman]

An update.

I won at VCAT!  And even, without my asking, had my application fee awarded against the Owners Corporation (the “Respondent”).

I had other augments ready to support my case (including rights of way law) that were never even mentioned.  My case was won on just one of argument – the rest weren’t needed (although the “Member” thought they were also valid, just not needed).

And that was s.46 of the OC Act.  The Member considered that a swipe/fob was a chattel to the common property security system and not lot property  As such the OC must repair and maintain it.   It is not an exclusive service that benefits only one lot either as it’s needed by a resident to be able to enjoy the common property areas of the building.  Nor can the “benefit principle” of funding be applied.

So now we know: An Owners Corporations (at least in Victoria) must pay to replace a resident’s faulty building entry system swipe/fob keys.

46 Owners corporation to repair and maintain common property

An owners corporation must repair and maintain—
(a) the common property; and
(b) the chattels, fixtures, fittings and services related to the common property or its enjoyment.

I don’t know if VCAT will publish the result on AustLII .  I don’t know how others find out about it if it isn’t published.

[Austman]

@JimmyT said:
 So maybe the need for approval isn’t as “likely” as you think.

It was the HIA that said approval was “generally” required.  I was citing them!

But it seems councils routinely allow licensed builders, surveyors, fire safety officers etc to implement and even approve their requirements.  Still, if a builder was accused of issuing an exemption certificate incorrectly, one would hope the council or the licensing authority would investigate.

For what it’s worth, my council (inner city Melbourne) states:

“Building Permits are generally required for: Internal work to your house that requires windows or walls to be moved or altered”.

[Austman]

@Luke said:
 They also threaten a $550-$5500 fine for breach of by-law (which I know is wrong)

What are my rights? Any advice on any way to proceed? 

Actually the $5,500 fine information is here:

The up to $5,500 fine can happen when you ignore an NCAT order. http://www.flatchat.com.au/by-laws-and-breaches-the-options/

Your rights are to either abide by the OC by-laws or take the OC to mediation or to NCAT.

So if you think the OC is wrong, you certainly have the right to challenge them.

[Austman]

Also, it’s likely such a major renovation (moving walls or creating new rooms) needs council approval.

General infomation from the HIA is here:

https://housinglocal.com.au/renovating/before-you-begin/building-permits.aspx

You generally do need council approval for “reconfiguration of internal space by moving or removing walls, new window and door openings”.

I would have thought too, considering that you most likely own the air space in your garage (and not the OC), your permission would have been required (as well as the OC’s) if more of your air space was going to be used by another lot.

There are things like implied easements which allow original pipes etc to protrude into the air space of other lots.  But once in place, I don’t think these easements can be automatically changed or extended without the affected owner’s permission – especially is the change significantly affects the other lot’s property (air space).

It might be time to contact a strata lawyer.

[Austman]

My VCAT appearance is scheduled for next Monday 17th November 2014.

My main submission to VCAT will be:

An OC must repair and maintain services (Owners Corporation Act 2006 s.47) including “a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act 1988. The easements or rights that may be implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide: … rights of way; …”

I hope the above will be enough to establish that a swipe/fob that allows an owner to access their lots over common property is deemed a service (a right of way) by s.47 and it’s the OC alone that must maintain this service (and not individual owners).

That would mean the OC must repair faulty common access swipe/fobs at OC expense.

I’m still after any advice that will help.

[Austman]

@DaveB said:
If the tiles are fixed to an external wall, or the wall separating your apartment from the next one or a common area, then yes they’re fixable by the Owners Corporation. 

Except if you live in a state (eg Victoria) where this can be incorrect. 

In some states (eg Victoria), tiles on all lot interior walls are considered to be surface treatments (like paint) and are the owner’s responsibility.

In these matters, where you live in Australia, can make a difference!

[Austman]

I pe

@larry_vincent said:
Security access devices (swipes,garage remotes, keys, fobs etc ) are sometimes lost or damaged by the user who has exclusive use of that device to access their lot.

…

Some Owners Corporations charge over $120 for each security device and this can act an incentive for users to look after them.

I agree with what you say larry_vincent.  Replacement swipes/fobs bought through an OC can be very expensive even if the device itself is quite cheap.  Fobs cost just $18.00 each, so the OC’s manager tells me, yet they charge $84.50 for a replacement.  Some OCs charge a lot more.

My issue is who is responsible for replacing faulty swipes/fobs?  That means swipes/fobs that are not damaged, lost or being purchased as an extra.  Fobs/swipes that just stop working.

If an OC must provide and maintain access across a common property security system so that owners can get to their lots, shouldn’t it be the OC?

As I’m going to VCAT, I need to have the legal points (rather than opinions) supporting my view because that’s what VCAT will examine.

[Austman]

As part of the dispute process, the OC Committee has now determined that a building access swipe/fob is NOT common property and that it provides a service that exclusively serves one lot owner and is therefore the responsibility of the lot own to repair or replace.  Exclusive services are usually a lot responsibility in Victoria and in some other states.

So I’ve now applied to take this matter VCAT at my own expense.

I’m trying  to assess the matter the way VCAT will and would appreciate any advice from others.   VCAT handles matters in a rather structured way so apologies if the below is overly complex.  But read some VCAT decisions and see for yourself. 

Q: Is a swipe/fob common property?  A: Even if a swipe/fob is not common property it’s the services that the swipe/fob provides that become important.

Q: What services does a swipe/fob provide?  A: I can only think of two: security and access.

Q: Is the security service that the swipe/fob provides an exclusive service?  A: I can’t see that it is.  The security that any swipe/fob provides is in my view a benefit that all residents in the building enjoy.

Q: Is the access service that the swipe/fob provides an exclusive service? A: I think it could be argued that it is.  The swipe/fob provides access exclusively for the swipe/fob holder.   So on this I think the OC Committee has a point.

But the OC Act (VIC) s.47 specifically states that the OC itself must maintain certain services.  Those services include a service for which an easement or right is implied over the land affected by the owners corporation or for the benefit of each lot and any common property by section 12(2) of the Subdivision Act (VIC)1988.   It then goes on to state that the easements or rights that may be  implied under section 12(2) of the Subdivision Act 1988 are those necessary to provide (among other things) rights of way.  So if lot owners have a right of way over common property to their lots, the OC must repair and maintain that right of way.  

Q: Do lot owners have a right of way to their lots?  A: I think this right of way is a fundamental of all strata schemes.  Lot owners are known as the dominant tenements while the Owners Corporation is the servient tenement.     As far as I know, rights of way can’t be charged for and can’t be blocked or restricted.   If a barrier ( eg gate/door/access coded lift etc) is placed along the right of way the servient tenement has to provide  the dominant tenement a key to that barrier.

So it’s my view that although owners would usually be responsible for services that exclusively serve their lot, the OC has certain statutory obligations to repair and maintain the services that it is obliged to provide under the Subdivision Act 1988.  And that includes repairing and maintaining rights of way that owners have over the OC to access their lots.

A swipe/fob that provides a right of way access is therefore an OC responsibility to repair and maintain.   And in Victoria an OC is not allowed to make rules/by-laws are inconsistent with the Subdivision Act 1988.

Sorry for the long post.

[Austman]

@Whale said:

Austman said – I’m in Victoria but it might work in NSW too.  In Victoria, the committee alone can make a decision to improve/alter common property (within limits).

Just to clarify for Beth…… NO it doesn’t work that way in NSW unless the Owners Corporation (O/C) has already put a Registered Special By-Law (SBL) in place that permits specific types improvements or alterations to be made to its Common Property, where if Owners then seek a formal consent for improvements or alterations of that type, its Executive Committee can grant that on behalf of the O/C in strict accordance with the provisions of that SBL.

Perhaps if I can clarify?  There was no physical alteration of, addition to or new structure erected on the common property.  Just the purchase of some lockers/cages that were free-standing and placed in one area on common property – much like a pieces of furniture.    Can an EC do that in NSW?

[Austman]

We did it in a slightly different way.  I’m in Victoria but it might work in NSW too.  In Victoria, the committee alone can make a decision to improve/alter common property (within limits).

We have 12 lots and an area of common property the committee thought to use for storage.  Two years ago, at OC expense, the committee installed, in that common area, 12 equal sized lockers/cages.  We put a number 1 to 12 on each.  We told each owner they were allowed to use a locker/cage that had their lot number on it but that the area and the lockers themselves remained common property.   We saw this as a fair an equal use of common property for each lot and that the OC would stay in control of it all.

So far it has worked.

[Author]

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