#18564
Kangaroo
Flatchatter

    This is an interesting but perplexing question.

    First, I don’t think Boronia’s comments should be so easily discarded. Legal questions are often resolved (and sometimes justice delivered) by reference to analogous situations.

    If you owned a free-standing house and this situation arose, you would be faced by two types of cost: the cost of repairs, and the loss of rent while they were undertaken.

    In strata living, owners have agreed to share the cost of repairs. That’s specified in the Act. If the roof caves in due to old age, then all owners share the cost of repairs, not just the top-floor people. If white ants start eating their way up from the ground, then all owners share the cost of repairs, not just the ground floor people.

    But the Act is silent (lawyer-speak for “d’oh, we forgot to cover that”) on consequential damages.

    Consequential damages is a very slippery slope.

    Loss of rent is an obvious and quantifiable consequential damage.

    But what if this happened to an owner who was about to depart on a 3-month pre-booked non-refundable round-the-world trip, but they had to stay while sudden urgent common property repairs were effected from inside their unit? Is the OC liable for the cost of their cancelled trip?

    What if an owner simply had to stay home from work for one day while the outside of their front door was painted? Is the OC liable for the loss of one day’s pay?

    I assert that the OC is never liable for consequential damages.

    And my circular argument is: If the OC were liable for consequential damages, then insurers would offer cover for it (another way to make money), but if they don’t offer it, it’s because OCs are not liable.

    I don’t think the OC should “come to the party” or “offer” to pay for consequential damages at all. Let the owner take them to court to establish liability.

    The biggest problem with this web site is that the initial question usually only presents the favourable half of one side of the dispute, but sound advice can only be given when all the facts are known.

    So, let me ask some questions.

    Rita C

    Are you the landlord of this top unit in a complex of 5 units?

    Is this unit the only unit on the top floor?

    If not, are the other top-floor owners/tenants moving out for the duration of repairs?

    I know the standard lease requires “habitable” premises.

    Who declared the unit uninhabitable?

    Or did the tenant simply prefer to leave to avoid the inconvenience?

    Have you checked yet whether the home warranty insurance actually covers your situation?

    Did you understand my previous point that the tenant should not get both free alternative accommodation and relief from rent?

    Landlord2

    You used the plural in regard to the top-floor.

    Are the other top-floor owners/tenants moving out for the duration of repairs?

    “Defects” has a specific connotation in relation to strata title matters.

    Are your “defects” the result of original construction?

    If so, the OC should be pursuing the original builder.

    What do you actually mean by “roof defect”?