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Sure Rob,
The Plan’s 34 years old and has 27 Lots — look HERE
Yes – it certainly is a curly one, but I’ll have a go!
I doubt that either insurance policy would cover the damage, as the cause of the problem (the leak) would have been by definition a gradual occurrence, and not therefore a point-in-time “event” like a burst pipe.
The original construction of the floor in the upstairs bathroom and its underside being the original ceiling of the bathroom below, would be Common Property and as such the responsibility of the Owners Corporation to repair.
Repairs to the shower, and replacement tiles in the bathroom (below) would be the responsibility of the Lot Owner.
This is the black-and-white approach to the problem, and I agree that there are grey-areas – like a gradual leak causing the common floor/ceiling to suddenly collapse, and the latter being perhaps considered a defined event for insurance purposes. Have you asked the Insurance Companies for a ruling?
It’s difficult to say who’s responsible solely on the basis of your description, but generally speaking the sewer line that connects the Lots to the communal sewerage system is Common Property, and the responsibility of the Owners Corporation (Strata). That conclusion is supported by the by the fact that the Strata Manager is arranging for the problem to be rectified whenever you make contact.
There could be a number of reasons for the Strata Manager’s lack of action in attending to the repairs of the sewer line, like perhaps they’re waiting for the Plan’s Executive Committee to make a decision, or maybe the Owners Corporation is short of funds.
None of that addresses your concerns though, so why not write to the Strata Manager advising that on the next occasion a surcharge occurs, you will make contact the local media. Personally I dislike that approach, but as you’ve tried everything else ….
David, In order to find out what IS Common Property, have a look on the Strata Plan for the area (m2) shown against the Location Plan; that’s the total strata area. Then check the Floor Plan and total the area (m2) of all 6 Lots. Subtract one from the other, and that will give you the area of the Common Property, which from what you’ve said will probably be a small area comprising the common driveway/s.
Basically, this is the Strata Scheme that Developers have when they don’t want a Strata Scheme, and in my opinion at least it’s probably more trouble that it’s worth when Owners have to work out who’s responsible for what and what the cost apportionments should be when shared areas such as the roof and adjoining walls require maintenance / repairs.
At least Owners’ Strata Levies and the Owners Corporation’s Insurance Premium would be low
Seriously though, might I suggest that you you contact a Plan Examiner at NSW Land & Property Information, and ask them to expertly interpret the Strata Plan for you.
I’d be interested to know the outcome.
Kiwipaul – In my opinion your Owners Corporation (O/C) shouldn’t merely wait for new Strata Laws (planned in NSW) or put a Special By-Law of the type you suggest in place in order to address the problem.
Our E/C considered that any such By-Law could not be retrospective, that we’d never know what alterations had already been done, that we’d likely never again be advised of proposed alterations, that we’d have difficulty having any unapproved items removed except at the time of selling a Lot, that there would always be issues about the E/C consenting by “being aware” of certain works, that some items (particularly in rented units) may be unsafe or be impacting adversely on the Common Property, and that the O/C itself had placed additions on areas of its Common Property that some Owners now considered their property, and vice versa (e.g. clothes lines, lighting, planters).
So as I was (again) the person who raised a contentious issue, and as I am the Secretary of our self-managed Plan, I got the job to write to all our Proprietors back in 2010 advising them of their obligations to seek and obtain the O/C’s consent before “making alterations to or adding to the Common Property” (as your downlight installer did).
The letter included examples of some of the items that constitute “alterations and additions” and those that are considered “lot owners fixtures”, and invited Proprietors to use a 30 day moratorium to advise the O/C of any of those that they were aware of in their Lot/s – whether they did them or not.
Proprietors were also advised that upon the expiry of that 30 day period, the E/C would arrange to inspect all items and would, where appropriate, have any current maintenance (but not repair/replacement) issues addressed under a costs shared 50:50 (with the O/C) arrangement, then grant retrospective consents incorporating requirements covering all on-going maintenance/ repairs/ replacements (100% Owner), and would then add everything that was consented, both at the time of the original works and retrospectively, to a “Register of Common Property Additions”.
The O/C then Resolved (at the next AGM) to create a Special By-Law stating that anything that’s not on the Register (which I have to keep up-to-date) is not consented, and is the responsibility of the Owner from time-to-time of the Lot.
A lot of effort for everyone up front, but a lot easier to manage in the long-term.
Jimmy’s right about that Special By-Law, particularly as there’s another opinion that because the major component of a downlight protrudes into the roof cavity, and that area’s Common Property, that maintenance / repairs are the Owners Corporation’s responsibility.
I always try to apply the test of logic and consistency to such matters, as both seem to be lacking in all of the “Who’s responsible” publications that I’ve read.
Like if the water supply isolator to a Lot can be considered Common Property, why isn’t the Electrical Sub-Board which has precisely the same function for a different service, the failure of which has an equivalent impact? Fire is an issue too, so why not make smoke detectors in Lots Common Property?
Why does S64 of the NSW Strata Schemes Management Act (SCMA) give Owners Corporations the ability to repair items such as water and electrical isolation devices at its cost if those costs can’t be recovered from the Lot Owner. Why would those costs be recoverable unless Lot Owners were otherwise responsible for those repairs?
That’s why my Owners Corporation (O/C) resolved to apply that logic and consistency to the most contentious grey-areas with maintenance and repairs regularly faced in our Plan, and enshrined that in a Special By-Law.
As Jimmy said, even that Special By-Law will likely give the Members of the Tribunal something else to consider (inconsistently
) if we ever get there over a maintenance and repair dispute.I’m hopeful that the shortly to be released Review of the SCMA will address some of the inconsistencies, or at least make these interpretations less necessary.
Both items are the Owner’s responsibility provided they serve only that Lot.
Always ask all persons working on the Common Property for the details of their Legal Liability Insurance (Insurer, Policy No., Expiry Date) and where appropriate for details of the Trades Licenses held by themselves and by any employees or sub-contractors who will be on-site during the works.
If they can’t or won’t supply those details, don’t use them!
Because if they’re uninsured and/or unlicensed and suffer an injury during the works, they may well decide to sue the Owners Corporation (O/C) or the Executive Committee (E/C) [or both] perhaps on the basis that it didn’t provide a safe workplace. That could cost the O/C and the E/C Members a fortune if the O/C’s Insurers decline the Claim, and cost those Insurers a fortune if they accept the Claim whereupon they’d likely increase premiums or worse still refuse the Policy come time for renewal.
The fact that Strata Managers do ensure that all Contractors working on a Plan’s Common Property are properly insured and licensed, and often charges them a percentage of the job cost to be one of its “preferred contractors” (that of course flows-on to the O/C), all leads to the higher charges that you’re experiencing.
As for the Contractors you might select to work on your own townhouse, the consequences of using uninsured and/or unlicensed people could be precisely the same (as above) if something goes pear-shaped, but the consequences are upon you as opposed to upon all four (4) of the Proprietors in your Plan, as the Owners Corporation, in the former example. That’s why your O/C and its Strata Manager need to be so extremely thorough.
Oh — the joys of Strata Living.
You are to be commended for taking the personal approach and by acting so reasonably.
You shouldn’t assume that a certain type/level of noise is permitted (“legal”) because it occurs within certain timeframes; that’s incorrect!
Any advice that I might provide would depend upon whether you’re a Proprietor or a Tenant, but in general terms I’d strongly suggest that you read the information provided here. Even if you’re not in NSW, other States / Territories have very similar approaches to situations such as yours.
Giri – Juan is absolutely correct, and as you don’t reside near your Strata Manager may I suggest as you’re a new Owner, at the time of your purchase your Solicitor / Conveyancer would have obtained a Certificate under S109 of the Strata Schemes Management Act 1996 (in NSW), and that would include the names and contact details of all (then) Executive Committee Members.
If you don’t have that Certificate, your Solicitor / Conveyancer would have a copy on file.
Alternatively, bite the bullet and write to the Secretary via your Strata Manager OR perhaps place that letter in an envelope marked “Personal – Secretary SP *****”, and send that by mail in another envelope to the Strata Manager together with a note requesting he/she to pass it on.
Good luck!!
It depends on the “lay of the land” to be developed, but it’s common for clearing of the boundaries, tree removal and preservation, and new fencing to be Conditions attached to Development Consents; entirely at the expense of the Developer. So maybe your Developer was just getting in early, and additionally sharing the costs of the above with the neighbours.
You said that the O/C and individual Lot Owners have been notified of the DA, so why not put in a Submission requesting some suitable mature trees on Developer’s side of the fence as replacements?
The “stratum statement” is generally shown on the page of the Strata Plan where the Plan of the Lots (floor plan) is shown, and it’s typically (but not always) 2.5m above and 1m below some fixed / permanent feature of the development; like a concrete driveway or the floor of a couryard.
You could contact Land & Property Information (in NSW) and ask them to check the Strata Plan for you; their website is https://www.lpi.nsw.gov.au/
The fact that the tree was on the exclusive-use area before Registration of the Special By-Law is of no legal consequence, but as I said in my earlier posts the height of the tree is.
As you say, the tree is “large”, so let’s assume (without clarification
) that it’s above the stratum of the Lot, where in those circumstances removal of it is the responsibility of the Owners Corporation after it has checked the requirements of Council under its Tree Preservation Orders.I’m big on compromise in circumstances such as these, so why not have your Owners Corporation (O/C) approach the Lot Owner/s who benefit from the exclusive use of the area for a contribution?
Given the DA I smell a rat too – but your E/C did agree to the removal of the tree/s albeit unintentionally, so you can hardly blame your Strata Manager.
What can you do? Not much after the event, but in most circumstances the Local Council should have been approached for its consent to the removal of the mature trees under its Tree Preservation Order.
You could contact the Council to ascertain if a consent was granted, but be cautious as if none was granted the Council could look to prosecute, and the easiest “mark” is probably the Owners Corporation as property owner.
Sorry I can’t be more supportive of your situation, but I do understand your concerns and would feel the same way in the circumstances.
Lesson for Whale: to avoid confusion and contradictory replies, clarify first – like is there an Exclusive Use By-Law in place? In this instance, as “bigtt” said (in the topic) that there is exclusive use, my post was on the assumption that there was a By-Law in place covering that (?).
If there isn’t, then “Scotlandx” is right by stating that the Owners Corporation (O/C) is responsible for all maintenance and repairs to the area, notwithstanding any exclusive use by a Lot Owner/s.
If an Exclusive Use By-Law is in place, then it’s customary for a Clause to be incorporated that defines who is responsible for maintenance and repairs within the exclusive use area – and that’s generally the beneficiary of the exclusive use. If there’s no such Clause, then again the O/C is responsible by default.
Whatever the scenario, I stand by my assertion that a Lot Owner cannot be held responsible for maintaining areas / items that are outside the stratum of their Lot.