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I am a lawyer and my comments are:
- If the cause of the leak is a tap fitting, then that isn’t a defect in common property that the owners corporation has to repair and maintain;
- I am not sure exactly how the water got from the tap fitting to the apartment below. If that was a problem with tiling, waterproofing or drainage, then that may be an owners corporation problem because those elements are common property;
- Flooding will be a trespass or a nuisance and they do not require proof of negligence.
If you are looking to mount a case that the owners corporation pay this modest repair cost, you may want to suggest that the real cause of the leak to the unit below was the drainage and tiling in the bathroom floor.
This all depends on who are the members of the community association. If they are the 4 strata schemes, then they will each vote via their authorised representative according to their UE in the community scheme. If you read the management statement, it will describe how this works. Just because one is a lot owner in a strata scheme doesn’t mean one is a member of the community association.
Why would you change the law because it does not comfortably fit a particular situation? One of the features of strata law is that it is designed to apply to a range of schemes of different sizes, in different locations, filled with different people, with different requirements. The fact that some people exercise power and engage in politics is a reality that can arise whenever groups of people get together and try to balance their competing interests and aims.
Dear Whoopi,
I speak as a member of the legal profession. I suggest that, before you take action, you get an opinion from another lawyer to understand where your case is up to and what might be the costs and consequences of either engaging a new lawyer or abandoning the OC’s claim.
It might also be worth making an inquiry of the Council. This “development” is likely to require some sort of approval.
In Owners Corp OCI-POS539033E v Black [2018] VSC 337, the Victorian Supreme Court has recently upheld a VCAT decision that an owners corporation (and presumably, by analogy, a community association) provides ‘services’ in respect of common property (and community property) for the purposes of discrimination Acts – i.e. Antidiscrimination Act 1977 NSW.
This would ground an argument that a blanket ban on under 16s using a pool is discrimination on the grounds of age.
I also see that section 54 of the Community Lands Management Act 1989 propounds rules around restrictions on the use of community property. However, those rules relates to limiting use to various types of lots: development, neighbourhood or strata, and do not contemplate that community property can be restricted to certain classes of persons who reside within the scheme.
It is interesting, but I think the age restricting by-law is beyond the power of the community association.
You are correct in relation to the next steps. You will need a surveyor and a strata lawyer.
Before you start spending funds, a strata lawyer will need to know:
–When you bought your townhouse
-And have a copy of your contract for the purchase.
The strata plan should set out the boundary of the lot property in a heavy line. Anything outside that heavy line that is not marked as lot property (that is the unit you and others own) is therefore common property. The lawyer can engage a surveyor to survey the various boundaries between you and your neighbours . That survey will then be used to compare with the registered strata plan that you were provided by the vendor (who is often the developer) when you bought your townhouse.
You may also need to consider the value of the land that you apparently anticipated being part of your lot, before the developer decided that he needed it more that you did! You need to be informed about the value of the land taken before you spend money to reclaim the land. You may well have a case for redress, but hasten cautiously and with the right support.
We are happy to advise further.