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The owners corporation is duty bound to keep the common property in good and serviceable repair and cannot defer this obligation because one owner is unfinancial.
If a special levy is required so that financial owners “pick up the slack”, then that should be done, even if the financial owners feel hard done by.
Separately, the owners corporation is obliged to recover unpaid levies, including the contribution to the special levy. Allowing an owner to remain unfinancial for 10 years is poor performance and may mean that some of the older levies are unrecoverable.
Irrespective, the owners corporation should promptly issue a Statement of Claim to recover the unpaid levies and costs and then obtain default judgment. Once it does so, it can garnish the rent to pay the debt.
David Sachs | Principal
Sachs Gerace Lawyers | Level 4 • 80 William Street • Sydney East NSW 2011
T: +61 2 9331 5177 M: 0448 300 094 P: GPO Box 876 Sydney 2001
E: sachs@sglawyers.com.au W: http://www.sglawyers.com.auJimmy, in your first comment above, which I notice you also published in the Herald, you say “The landlord could encourage the tenant to run a case to have their lease revoked through Fair Trading. The landlord could then run his own case to have the owners corporation compensate him.”
In the SMH article you have (properly) corrected this by pointing out the O/C has an obligation to repair the lift and so the landlord cannot seek compensation from the O/C for something they are duty-bound to do.
However, your advice could be (mis)construed as advice to the landlord to procure the tenant to break the lease in order to create an apparent need for compensation. If the landlord tried to run such a case that could be considered to be an abuse of process, even a fraud, and the landlord may saw (in defence) that your column had advised him or her to do that as an available course. Surely you did not mean that?
I think you are right, though, to point out the best course is for the landlord to seek to negotiate a sensible reduction with the tenant and ensure the lift works run to schedule as much as possible.