I am sorry Eureka to hear of your situation. You have been very patient.
Firstly, there are some key points that you have mentioned that I think all readers would benefit from further clarity around, then we can move to a solution focused approach.
- The strata manager or the OC or the Chairperson can’t prevent lot owners from making a claim on the OC Insurance Policy. You can lodge a claim anytime without reference to either the strata manager or the OC. Provided you know which insurance company holds the policy, which should be disclosed at the AGM every year.
- The choice of Insurer and Insurance Policy that suits the owners is decided usually at the AGM as well. The Policy may or may not include floating floors. Regardless it would not change the outcome in your case because of the Water Act. Next year they may choose to not have a policy that includes floating floors, the OC is still liable for the damage caused. At least if they hold a policy that includes floating floors they are covering that exposure.
- Section 16 of the Water Act sets out that if water flows from one property to another and causes damage, the the person who caused the flow (in your case the OC) is liable to pay damages to that other person (you) in respect of that injury, damage or loss.
- The OC must act to do something about the flow of water and the OC’s liability (financial exposure) is increasing daily. If you were a landlord for instance, you would not be able to rent your property under the minimum rental standards which may lead to a loss of rent claim against the OC as well. Unfortunately as a lot owner you don’t have that same protection unless the lot is uninhabitable. However, if the flow of water is not resolved, mould may become the issue and damages relating to your property and your health may eventuate. The OC may find themselves in a position that insurance renewal is denied. If this occurs, they will find it very hard to get any insurer to take them on and the financial exposure is now exponential.
- If there was a quorum (more than 50% of owners) were present at the 2022 AGM, the minutes are not required to be sent until the Notice of Meeting is sent for the next 2023 AGM, so the strata manager has breached their contract duties – at least for that. If however a quorum was not present, then the minutes must be circulated within 14 days of the meeting – this would be breach of contract.
- Response times are most likely not stated in the Contract of Appointment, so technically there is no breach there either.
- SCA (Vic) can only hear complaints for a breach of their Code of Conduct which can find on their website http://www.vic.strata.community.
Unfortunately in Victoria, we have no help line provided by Consumer Affairs and their website is out of date. VCAT is also struggling with the number of disputes and the delay for hearings are over 12 months. Some possible things for you to explore:
- Contacting the Franchisor is a good idea. They should be interested to manage the brand reputation, which might help with the response times. Google review comments get attention. They may not be able to interfere with your direct case but should be able to seek responses for you.
- Contacting a good plumber or landscaping company to inspect the common property adjacent to your lot, will be helpful. Meeting with one or more of these types of experts will start to provided solutions which may not be very difficult to fix. The solution might be a spoon drain or installing impervious material to curb the flow.
- Lodge a formal complaint under the Owners Corporations Act 2006 – see Consumer Affairs website. You will find the prescribed form that must be used. https://www.consumer.vic.gov.au/housing/owners-corporations/complaint-handling-and-resolving-disputes
- The formal complaint triggers a requirement for the OC to meet and consider the dispute within a specified time frame. If you have done some research as outlined in step 2 above, then a constructive conversation might actually occur. You can have another person attend with you to the mediation if you like.
- I would remind the other owners at this meeting, that it would be cheaper for the OC to get the work done before this matter goes legal. The only winners are the lawyers.
You should in the meantime, explore your legal options and seek a quote for the provision of Legal advice from a specialist OC law specialist practicing in Victoria and perhaps explore some of these options:
- Legal letter of demand seeking the appointment of an appropriate technical expert to determine how water is flowing from common property to your land. A letter from a lawyer may bring about action.
- Legal advice as to the quickest remedy for you – Magistrates Court and Nuisance or VCAT and Water Act or VCAT and seek a Administrator. Should you stay in your unit or move out. All options should be explored.
I hope this information is helpful and that you can resolve the matter quickly.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.