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responsible for the repair to my internal wall?
Unfortunately, it might be you.
Waterproofing of lots in VIC is often a lot owner responsibility, even in apartments. Especially if waterproofing membranes or similar are involved. That’s due to legislation. They usually belong to the lot.
the landscaper incorrectly removing the irrigation system
I think we need clarification of what this actually means.
Eg Was it a lot only system or a common property system?
Eg what is “incorrectly”? That it was intentional but done a wrong way? Or was it unintentional?
And what exactly got removed? And what exactly was damaged by the leaks? Was it lot property(s), common property or both?
Establishing negligence is not always simple. In fact it’s often difficult. Good luck if the OC can or wants do it but it will need the OC, or its insurer, to actually establish it.
I assume you suggest a special resolution because it’s a change to the rules?
It’s s.12 of the Owners Corporations Act 2006 (VIC). That section allows, by Special Resolution, an OC to provide a “service” to lot owners. That service can include the maintenance of lot property.
It can make sense where considerable works that affect multiple lot properties are needed. The OC can get it all done in one go and raise the funds accordingly. It can make even more sense when there’s both lot and common property involved.
Else it can be a complicated matter of appropriating costs. It’s up to the owners to decide which way to go.
The owner claims that they were unaware of the irrigation system and therefore not liable for the damage.
Liability usually needs negligence to establish it.
So was the lot owner negligent? Perhaps. Or perhaps the landscaper was negligent in which case the landscaper might be liable.
Either way, hopefully insurance, either the strata’s or the lot owner’s or the landscaper’s, will cover any damage.
If it’s covered by strata insurance that might be the first to try?
It is different in Victoria.
For a start a “unit” often means a villa house – not an apartment.
The OP’s strata seems typical of older strata plans in Victoria where the plan number begins with RP or SP. In those type of horizontal strata plans the lots typically own the land below and airspace above their lot to a certain distance (eg four feet or one metre). And lot boundaries are typically “median” which means they are 50/50 with another lot or 50/50 with common property.
It can make the cost sharing of boundary wall maintenance “interesting”.
One way, if the OC passes a Special Resolution, is for the OC to decide to pay for all of the works regardless of if it’s to lot or to common property. That can make logical and even financial sense. But it does need a Special Resolution to approve it.
I’m unsure if I need a lawyer or can just lodge the issue with VCAT?
For owner v owner disputes it’s less likely that VCAT will allow legal representation. But that doesn’t mean you can’t consult a lawyer for advice.
VCAT is unlikely to hear your case until you have formally at least tried to resolve it:
CAV, a lawyer and sometimes VCAT itself can guide you through the process.
It’s not a quick process but sometimes when the respondent realises they are soon to be taken to VCAT they can change their mind about ignoring the issue.
It would be good if spmanager could possibly provide some more details?
I can find legal opinion and even tribunal cases that go the other way. But they are not recent.
It will would be very useful to see a recent case or at least have some further details about it.
Get the professional advice.
It’s most likely that the walls etc where the problems are will be common property and a strata maintenance responsibility.
But it’s not 100% guaranteed because the strata plan can designate things differently and sometimes owners move walls, even external walls, or do other alterations that changes their status to a lot maintenance responsibility. That’s actually happened in one of my strata apartment buildings in a top floor apartment.
So while they are almost certainly common property, especially if they are original, you need to be 100% sure.
I’d agree that the OP needs professional strata advice. Urgently.
But I’d like to note that not all walls are necessarily common property. For example nonstructural internal walls. And there can be other circumstances, depending on the strata plan. It’s not always 100% clear. If under warranty, even if not common property, they’d still be a matter for the builder.
The professional advice would sort all that out.
Various solutions about bollards and other methods re changing fobs, adding key pads etc etc have been discussed to stop illegal parking but not acted on.
So it actually has been discussed by the committee? Meaning that the committee has not ignored the matter but has not come up with a solution to your satisfaction?
Considering that tens of thousands of stratas around the nation have not been able to solve this issue either, what exactly do you expect your committee and NCAT to do? I suggest you address that question before heading off to NCAT.
The usual “solutions” for this matter (visitor parking) are either unworkable, illegal, temporary or not affordable. The fault is not so much with the strata committee. The fault is the weak legislation that has prevented stratas from being able to do much.
Sure, if you have a strata that is able to pay for 24/7 on-site security staff, you might be able to do something. Sure, if your council is one of a few in Australia that is willing to include your visitor parking in their parking enforcement area, you might be able to do something. Both are not free of course.
Else all other solutions are pretty much unworkable, illegal, temporary or not affordable.
Tens of thousands of stratas wish they weren’t. Unfortunately.
There is considerable legal opinion about this.
That opinion is that a lot owner cannot be restricted from using common facilities, that they in fact jointly own, by an OC/BC. And that’s regardless of whether they are an occupier or not.
But that doesn’t stop many OC/BCs from doing it.
Of course moral opinion is different to legal opinion.
How may times do you need to be told to check your appliance hoses before failure to do so is negligence?
On an integrated dishwasher where you can’t even see them and they are “permanently” connected at installation?
Please tell us.
All of the dishwasher owners manuals that I have, in their maintenance sections, fail to mention it at all. It’s actually happened to one of my dishwashers and the leak came from inside the machine.
The dishwasher’s (any appliance really) owner/operator is only liable if it’s established they have used it negligently. Good luck with that re dishwashers.
Sorry, but I totally disagree.
For a start, mere ownership of something is never enough to establish liability. Negligence is usually needed too.
For burst pipes where negligence can’t be established:
The OC would pay for repairs to common property. Affected lot owners/occupiers would pay for repairs to their lot/personal property. All can claim on any insurance policy that they have access to.
For burst pipes where OC/lot owner/lot occupier negligence can be established:
The negligent OC/lot owner/lot occupier would be liable for repairs to both common and lot property. But can claim on any insurance policy that they have access to. That includes, for the OC and lot owners, the OC’s building insurance policy.
Usually, unless there was required maintenance (or similar) that was not done, it’s difficult to establish negligence and therefore liability in these situations.
I agree with Kaindub’s view and would like to know if it is based on a provision in law.
I don’t believe it is.
An OC must provide 24/7 access to the lots across common property. And it must provide reasonable access to common facilities.
That’s a long way from providing 24/7 access at every access point to all common property.
I am hoping Forum contributors can point me in the direction of any precedent or authority which supports my view that the SC position is untenable.
It would be if the gate is part of a required exit path as defined in the NCC/BCA. Else there’s no safety issue.
A required exit path would generally have an “Exit” sign above it.