Re: CP repairs leave balustrade with a big bump

Hi,

Well, despite me showing them the legislation, your opinion and a real estate agent’s opinion that the terrace was the most valuable part of my lot, they have turned down my request for the OC to pay for replacement panels to make the top of the glass barrier even. I will take it further as you suggest as I think there is an important principle at stake.

Would anyone care to comment on their reasoning (especially underlined section) as it would help me in the mediation process:

“In addition to this we believe that the Strata Schemes Management Act 2015 – Section 106 in regard to the issue with the glass panels should be interpreted as follows.

Paragraph (1) and (2) of Section 106 state that the Owners Corporation must properly maintain and keep in a state of good and serviceable repair common property. This extends to fixtures and fittings (such as the glass panel) which must be renewed or replaced if required to properly maintain and keep in a state of good and serviceable repair common property. 

In regard to the glass panel this means that the non-compliant glass panel needs to be replaced – even though it is in perfect working condition – as it is not compliant with regulation. Paragraph (1) and (2), however do not apply to the other, compliant glass panels as they are not only in perfect working condition but they are also compliant with all relevant legislation and as such the requirement to properly maintain and keep in a state of good and serviceable repair does not apply to them. 

Paragraph (3) details under which conditions an Owners Corporation may decide to not maintain or repair common property. This section is not relevant in regard to the issue of the glass panel as we are not seeking an exemption from the obligation to maintain common property but are intending to replace the non-compliant glass panel.

We are aware that the obligation to properly maintain and keep in a state of good and serviceable repair common property has been held in a variety of cases to extent to aesthetic concerns (although different scenarios where a repair was otherwise under consideration), however as detailed above we do not believe that replacing the non-compliant glass panel with a slightly higher glass panel will raise aesthetic concerns and as such there is no obligation for the Owners Corporation to replace the compliant glass panels. Having said that, we would have no objections to consider a proposal to replace the compliant glass panels at your own cost.”

Many thanks