› Flat Chat Strata Forum › Common Property › Common Property Concrete Cancer in a LOT – Who pays for Lot Owner costs? › Current Page
Firstly the NCAT Tribunal can “award damages”. They cannot do it directly but they can do it indirectly. Let me explain.
Repair of concrete cancer in your lot comes under s.65 of the Act. Section 65(6) reads as follows:
(6) An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
Section 138(3)(d) of the Act prevents NCAT from awarding damages. NCAT can however issue an order that the owners corporation comply with section 65(6) of the Act. That has the same effect.
There is no power under the Act for the owners corporation to evict you. Not even NCAT can make such an order. The owners corporation cannot enter your lot to carry out repairs without your permission. If you refuse access and it is not an emergency they have to seek an order from NCAT requiring you to give them access.
The owners corporation also cannot commence NCAT action until the matter has gone to mediation.
The Supreme Court has ruled that an owners corporation has a duty to be proactive in relation to maintenance of common property and to inspect the common property regularly. The Supreme Court has also ruled that the moment something falls into disrepair the owners corporation is in breach of the law.
If the owners corporation had inspected all lots regularly looking for concrete cancer the repairs in your lot would have been detected early and would have taken a day or two to fix. Claiming that it is going to take 12 weeks is ridiculous. If the repair company knows its job then it should only take one week at the most even for a large repair. If it will take 12 weeks then the repair must be huge and the owners corporation is in clear breach of its duty.
Under the new Act, which comes into effect later this year, you have the legislated right to sue the owners corporation for any loss you suffer as a result of their failure to promptly maintain common property (new s.106(5)), and it is RETROSPECTIVE. The restriction on NCAT not awarding damages also gets removed.
So here is what you should do. Write to the strata manager and state the following:
1. You claimed that the owners corporation is not liable for damage to my property when repairing the concrete cancer. That is not correct. Under s.65(6) of the Act you are liable for any damage caused to my property as a result of carrying out work on common property.
2. The Supreme Court has ruled that the owners corporation has a duty to be proactive in relation to maintenance of common property and to inspect the common property regularly for faults. It has also ruled that the moment something falls into disrepair the owners corporation is in breach of s.62 of the Act.
3. The owners corporation is therefore in breach of s.62 of the Act at present for failing to check for and detect the concrete cancer in my lot the moment it first began. If it had done so the repair would have taken a few days only, not 12 weeks.
4. Under s.106(5) of the new Strata Act, which is retrospective, I have the right to seek damages for any loss I suffer as a result of any breach of s.106 the Act by the Owners Corporation. Unlike under the old Act NCAT will have the power to award damages.
5. The cost of alternative accommodation is a loss I will suffer due to the breach of the Act by the owners corporation. If the owners corporation does not compensate me for that loss voluntarily I will seek an order against it under s.106(5) of the new Act as soon as it comes into effect.
5. There is no power under the Act for you to evict me and NCAT does not have the power to do so either. If you expect me to move out then you will need to obtain a court order. That will almost certainly delay the matter until after the new Act comes in.
6. I want the repairs carried out as soon as possible but as it is a repair to common property I will not accept and cannot afford to bear a greater share of the cost than other owners.
7. To avoid the cost of legal action and the unnecessary delay to the repairs please confirm in writing that you will comply with s.65(6) of the Act by compensating me for any damage to my personal property. Please also confirm in writing that the owners corporation will meet all incidental costs associated with the repair to common property, which includes the reasonable cost of alternative accommodation for me while the repairs are carried out. As soon as that is confirmed in writing I will be happy for the repairs to begin.
If the owners corporation refuses the above, let them ask for mediation. Attend mediation and present the above to the mediator. If mediation fails it will then go to a strata adjudicator. They make a decision on the paperwork. There is no hearing. So you will have ample time to prepare your case in writing. I am happy to assist you in that regard. They can order that you give access to your lot but they do not have the power to order you to vacate, especially if you tell them you cannot afford to pay for rent elsewhere.