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Just to add, I found this on The Law Handbook Online.
It relates to the situation in Victoria. It seems the OC can recover debts under s.49.
https://www.lawhandbook.org.au/handbook/ch10s05s05.php#Ch1302Se257876
Water leaks
Under section 16 of the Water Act 1989 (Vic), a lot owner is responsible for the repair and maintenance of their unit to prevent any escape of water from the unit into any other unit within the plan of subdivision.
Although the owners corporation is not a liable party and need not pursue a response, it must do everything in its power to fulfil its obligations responsibly to ensure that it cannot be implicated in the cause of the leak. This may involve undertaking investigations, repairs and maintenance including new guttering, flashings and sealants and the clearance of storm water drains.
In addition, under section 48 of the OC Act, an owners corporation may choose to be involved and may serve notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works and may recover as a debt from the lot owner any costs expended by the owners corporation for the rectification (s 49).
I can’t see this matter has anything to do with contract law.
Damage was being caused to private and/or common property by water. The owner of the private property or the Owners Corporation took steps to investigate the cause of the damage. It turned out that the damage was being caused by an other owner’s private property.
Common Law would suggest that those that suffered the damage have a right to claim costs against those that caused the damage?
It is a tricky situation.
From the OC’s or other owner’s point of view it can appear that the water leak originated from somewhere on common property. So the OC or other owner called a plumber to investigate. But the leak was eventually traced to another owner’s dishwasher.
There’s no doubt that the owner of the dishwasher is responsible for the leak. And that owner would also be liable for any damage the leak caused to another’s property (common property or another owner’s property). That damage would include a plumber’s costs for investigating the leak. So the OC is correct to send you the bill. You can refuse to pay it or try to claim it on your contents insurance under its liability cover. If you refuse to pay, the OC can try to recover their costs as a common law claim against someone who has damaged another’s property.
I’d be interested to know other opinions.
I believe our building has been “Brat Dumped”. But with a slight twist.
A couple of years ago a 2-bedroom apartment in our building in inner Melbourne was sold. I met the person buying it – a twenty-something man who was at the auction with his parents.
When the legal OC paperwork was done, it showed the twenty-something as the new owner (not the parents).
Soon after the man moved in the parties and noise began. This included all night parties going through to the next morning (7, 8, 9 am). Police were often called. We initially sent complaint letters to him either directly or through the SM. Things would settle down for a few weeks but then start again. The person making the noise (that affected all other apartments in the building) considered that his behaviour was fairly reasonable. “I can stay up all night if I want, can’t I?”. Well, yes, but you can’t disturb others if you do.
I went to the police and to the council to see what more could be done. Both initially suggested that I should be talking to the Owners Corporation!
We (the OC) issued a breach notice and I was determined to escalate the matter to VCAT if things didn’t improve. VCAT publish decisions for all to see. Win or lose, a lot of details of the matter as well as names (and effectively addresses if you are a lot resident) are published. That alone should be quite a deterrent for “offenders”.
But then his sister moved in. And although she is somewhat noisy too, it seems she doesn’t like being disturbed all night either. So things have settled down a lot (still with some noise at times but not like before). And it make us (in the OC) more convinced that the apartment was financed by the parents for the kids. The parents don’t live far away either.
I thought about a Noise Abatement Order but couldn’t find too much information about it that related to Victoria. Is it just for NSW?
In some states it depends if the unapproved work is a service or not.
In Victoria, an owner is responsible for a service from where it exclusively serves the owner’s lot only.
For for example, a split system air conditioner or a TV antenna that serves only one lot would always be the lot owner’s responsibility to repair/maintain/replace. As would any damage to common property that the service causes.
An unapproved common property building alteration is another matter. The OC is always responsible for common property maintenance and repair, including altered common property, unless an exclusive use arrangement has been made. But an OC can always try to reinstate any unapproved common property alteration and try to recover the costs of doing so.
I can’t see how an OC can force a current owner to reinstate a common property alteration that the current owner did not do. And VCAT seems to agree. Here is a case where a deck was built without OC permission by a previous owner.
It does seem to me, with more information coming out, that the SM actually did keep the OC (well at least the Secretary) informed of the actions the SM was taking. It was the OC Secretary who didn’t want to proceed with billing the tenant for the repair.
Anyway, the answer to Colosus’ original question is the OC must pay for repairs. They could try to claim costs from the owner or tenant but it would make sense for the OC to claim on building insurance and forward any excess costs to the owner who could forward them to the tenant. If the OC didn’t claim the owner could when hit with the bill.
No more from me on this thread either!
@Colosus01 said:
@Austman said:Re issue (1), I can’t see anywhere that the SM went ahead and approved the cost of the new antenna. Perhaps Colosus01 can clarify this?
Hi Austman, Just to clarify that last part in your post you are referring to the new antenna from bunning’s that the resident put up?
Hi Colosus01. Yes that’s what I meant. Did the SM approve payment for the antenna?
If it’s the insurance claim that is the issue, I can’t see that the SM acted illegally. SMs, in my experience, typically handle tasks as “job in – job out” if they are within their authority. They just see it as doing their job and might not see any bigger picture.
And here is a cut-and-paste quote from a letter to me from an earlier SM about the block of 12 apartments where I now live:
“However, I remind you that the fees being charged represent only around 30 minutes a week. If the body corporate has higher expectations, it should set out clearly the additional duties beyond those set out in the Institute of Body Corporate Manager’s Agreement, and obtain quotes to this.”
So, just 30 minutes a week is allocated for ALL the SM’s tasks for our building. The strata management company considers most SM work is “job in – job out”. A Committee, considering this, might need to give the SM specific instructions not to make an insurance claim.
@Whale said:
Austman – I agree with your proposition where an Owners Corporation properly delegates some of its functions to a competent Strata Manager who then exercises those in accordance with Strata Law, and touches-base with the Executive Committee when exceptions or atypical situations arise.If you had read all of Colosus’ posts on this topic and the others where it’s clear that the Strata Manager that you’re siding with has demonstrated a propensity for taking the easy way out and acting autonomously despite the contrary requirements of the Law, then like me you may have taken a different line.
Thanks Whale – I did read the posts. I think there are at least two issues here –
(1) The unauthorised alteration of common property and
(2) An insurance claim for the repair of accidental damage to other common property.
Issue (1) should be an EC issue, perhaps with the SM’s advice. It’s clearly not allowed.
But issue (2)… I can’t see how the SM acted illegally, which is what
Colosus01 claims. No SM has ever asked me (I’ve been on the committee where I live for 10 years) before submitting an owner’s insurance claim. What are the “contrary requirements of the Law” here?Are you saying that because (1) happened, (2) should not be allowed? It seems that Colosus01 wants the owner to pay for the repairs. My argument is that the owner would be allowed to claim from the OC’s building insurance regardless. I don’t see how a claim application could be denied by the OC. Who pays if the insurance company denies the claim or approves it with an excess is another matter. I think that any further costs after submitting the insurance claim would be for the claiming owner to pay.
Re issue (1), I can’t see anywhere that the SM went ahead and approved the cost of the new antenna. Perhaps Colosus01 can clarify this?
Austman said “you appear to be in Victoria”
Sorry – I now see it’s NSW. None-the-less I think the Manager is right for the reasons I stated.
The part “VCAT has ruled on this – the OC generally pays any excess, but if a lot owner/resident/guest or a lot’s private property caused the damage, the lot owner can be (in fact should be) charged the excess.” is true for Victoria and likely to be similar elsewhere.
I’m siding with the Manager.
Our SM usually makes insurance claims without informing the Committee. He sees it as his job when he judges that a claim is appropriate and, according to our strata agreement, he is allowed to make that judgement.
It doesn’t matter HOW the damage to the common property happened, the OC must repair it. The OC can pursue cost recovery if it so chooses. In the case of accidental damage to common property this would be usually though an insurance claim.
As the whole building by law must be insured against accidental damage, a lot owner can request the OC to submit a claim for any accidental building damage they are responsible for and the OC must oblige or risk being taken to VCAT (you appear to be in Victoria). It is after all, every owner’s building insurance policy too. The insurance company can then chase the person that caused the damage if they so choose. Whether the work on the roof was approved or not by the OC is likely to be irrelvant – if it was accidental that would be enough to be covered according to my OC’s insurance policy.
The OC can however charge the lot owner any insurance excess. VCAT has ruled on this – the OC generally pays any excess, but if a lot owner/resident/guest or a lot’s private property caused the damage, the lot owner can be (in fact should be) charged the excess. I suspect the OC could also charge the owner for the full cost of repairs if the whole claim was refused by the insurance company.
And as for the argument that too many insurance claims could increase an OC’s insurance premiums – it seems there’s not too much an OC can do about that. In reality, so our SM tells me, the insurance companies tend to increase the excess amounts rather than the premium. This excess can be charged to the lot owner if they caused the damage.
@boomergirl said:
Is it possible for 10% of lot owners to opt out of an existing subdivision by further subdividing in Victoria? We have no common property but share the costs equally with 90% of owners who use private road, gated garaging, visitor parking, common property gardening and trees maintenance costs, public lighting etc.thanks for any information
It’s certainly possible, subject to a unanimous resolution, under the Owners Corporation Act 2006 and the Subdivision Act 1988. Whether other authorities also allow it (eg council) is another matter.
Subdivision Act 1988
32 Powers to alter subdivision
S. 32 substituted by No. 69/2006 s. 211.If there is a unanimous resolution of the members, an owners corporation may proceed under this Division to do one or more of the following—
…
(c) alter the boundaries of any land affected by the owners corporation, whether or not the alteration results in an increase or decrease of the area of land affected by the owners corporation;
(d) increase or reduce the number of lots affected by the owners corporation;
(e) create new lots or new common property;
…This might be OT. But in Victoria it seems we have Planning Permits and then Building Permits.
In my OC, there have been 2 Planning Permits submitted to council without the OC even being informed, never mind with the OC’s Common Seal. The OC Act does state that the owner must inform the OC but in both cases they didn’t. And neither did the council.
OC Act 2006
133 Notice of planning and building applications and plans of subdivision
A lot owner must give notice to the owners corporation of any application by the lot owner for a building permit or planning permit or the certification of a plan of subdivision affecting the lot.One planning application was for a terrace enclosure and the other was for a change to terrace privacy screens. Both applications were approved by council!
Neither has actually been built yet, so I hope that when it comes to a Building Permit the OC’s permission will be needed by council! As both works affect common property, the owners would at some point need OC permission anyhow.
But it’s been interesting (alarming really!) to see how far an owner can go without getting the OC’s permission.
“BLUFF” I meant (I still have no edit option whne I post)
@Stumped said:
The lawyer and his Firm have a confidential, undisclosed agreement with the EC to provide legal advice to the OC.
You lost me from here. This and a lot of other activities you describe are, I think, illegal. An OC has to be open to the members of the OC. It looks to me that ther’s a lot of buff going on.
Sorry – I’m not meaning to be high horsed, but this was an important safety issue too and not just an abandoned goods issue. Safety always comes first in my book.
On the abandoned goods issue – I think if the goods are abandoned on common property an OC can dispose of them. It’s different if the goods are on lot property (eg in a car space).
We give some weeks notice that we will be removing the goods. We try to contact the owner (who is often unknown) and send a notice to all residents. We also place a notice in lobbies. We don’t have anywhere to store things so they are disposed of by our cleaners. Our cleaners tell me that they might hang on to ‘valuable’ items for a short while.
But if things are left in a dangerous location or are blocking access we take more immediate action. If we can, we’d move the item somewhere else in the meantime before eventually disposing of it as above.