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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.
The landscaper didn’t bother to ask what the irrigation system was for, or the lot owner didn’t bother to tell them. That sound pretty much like negligence to me.
On the other hand, as you say, the strata insurance might wear it. If not, bill the unit owner and let them chase the landscaper, if they are at fault.
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Are there any owners in the scheme who are not affected by this?
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I know in apartments, adjoining walls are common property. Is that different in townhouses and/or Victoria?
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… it’s up to owners to choose these changes, and pay for them, not tenants.
It’s interesting that the Stratacare website quoted above takes great pains to refer to “residents” and not owners or tenants. Suffice it to say that if a duty of care exists, it probably applies to tenants as much as owners.
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Thanks for taking the time to respond with such a detailed answer. I was expecting to end up paying a lawyer for that advice.
You may yet have to do so … I’m not a lawyer but thanks for the thumbs-up, anyway.
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I’m not a builder, but maybe an RSJ (rolled steel joist or I-beam) cut into the wall should hold it, then add the fancy stuff later. Amazing what you can do with an angle grinder and a mallet.
But seriously, it’s worth reading this factsheet. It starts off about wheelchairs but moves on to say this:
There is no obligation on a body corporate to specifically go and do things to make the building compliant with the various codes for differently abled persons. If it was up-to-code when it was built, it remains that way unless someone raises it as an issue.
The question of whether or not a body corporate has a duty to modify common property to facilitate easier access for residents generally depends on the answers to the following key questions:
(a) Are there disabled residents in the strata scheme?
(b) If so, is the requirement for those disabled residents to travel through the presently available pedestrian routes on common property to get to and from their lots not reasonable having regard to the circumstances?
(c) Would the modifications to the common property pedestrian routes requested by disabled residents impose unjustifiable hardship on the owners corporation?
If a resident needed something upgraded to suit their circumstances, then their request is likely to be successful.
Food for thought.
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Sujenna, you misunderstand the point of mediation. It is not to formally resolve the problems in respect of the strata Act. It is instead to get the parties together informally and try to bridge the dispute(s).
Actually, I think you have misunderstood the OP’s point, which is that just calling for mediation might have the effect of making the other party realise there is a process that could lead to the Tribunal and that process has formally begun.
She said: ” I am anticipating that proceedings will stop at mediation, as that will be enough of a shock for the SM to ‘pull his head in’ and stop issuing frivolous work orders.”
This is an absolutely valid tactic, especially now that applications for mediation are free of charge. If the other side doesn’t show up, then she can take it to the next level if she chooses.
If they do show up, then someone at Fair Trading might explain the facts of strata life to them and they can decide if they want to take their chances at a tribunal.
But the most important thing at this stage is that the other side now knows she has options.
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The tribunal will usually only take an interest when strata law or a scheme’s by-laws have been breached.
In your case, Section 74 of the Act says a Capital Works fund must be established. It doesn’t say how much money needs to be put in it, just that it must exist.
Section 80 of the Act says you must have a 10-year maintenance plan which must be reviewed every five years.
Section 81 of the Act says this:
(1) The owners corporation must determine the amounts to be levied as a contribution to the administrative fund and the capital works fund to raise the amounts estimated as needing to be credited to those funds.
The key words in there are “estimated as needing to be credited”. If your strata scheme decided it only needs to keep a minimal float in the fund and that they will raise funds as need be either by special levies or through a strata loan, then that is absolutely legal.
What you could do is use the five-yearly review as a trigger for getting it put on the record exactly what the strata scheme’s intentions are. A motion could read something like:
This strata plan resolves to either:
a) contribute money as necessary to meet the anticipated requirements of the maintenance plan reviewed on {date}, as per the terms of Section 81 of the Act, or
b) fund repairs and maintenance as they arise, either through a special levy or the acquisition of a strata loan, to be determined at the time.
If nothing else, that might sharpen their thinking, but I think your only recourse to the Tribunal would be if they don’t even have a Capital Works fund set up, as required by law, or if there were significant repairs and maintenance required that they were failing to undertake because they have no money and aren’t prepared to raise it.
That would fall under Section 106 which requires the owners corporation to maintain and repair common property.
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The motion would stand up if it was specific. “No use of fishing equipment that has fish hooks attached, or any other method, including spear guns, that might present a potential physical danger to the residents and guests using the pool” would do the trick. That way you are reducing the risk, not banning the behaviour.
Of course, your angler’s arguments are spurious and ridiculous. Swimming backstroke naked would be banned for all too obvious reasons. It’s not about the behaviour, it’s the effect on other residents in a communal space.
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