@dingo said:
The owners are obliged to maintain common property but that doesn’t necessarily mean they have to replace or upgrade the common property lift.
It does if that’s the only way to have a lift that’s reliable and safe – at the very least they need to ascertain whether or not they need to spend some money on repairs or refurbishment.
If you look at section 106 (below) it quite clearly states that the Owners Corp has a duty to maintain and repair common property and can only decide not to do so if that doesn’t affect the safety or appearance of the common property. I would think a lift that’s noisy and unreliable has problems that are more than cosmetic.
It’s also worth pointing them in the direction of paragraph 5 – if any owner loses money due to a cranky old lift, (for instance through reduced sales price or lost rent) the Owners Corp could be liable.
Do you know if the strata would have the funds to do this? This may be a key factor as to why they don’t want to, even though it may seem logical to replace it.
I’d bet my house on it being the lack of accumulated funds that makes them reluctant to spend money now. This is a common result in a building where the owners have let things go to rack and ruin rather than spend a cent more than they have to on levies. But it doesn’t change their responsibility one iota. If the work needs to be done, then they need to find the money, by whatever means they can, be it special levies or a loan.
There seems to be a clear option here to pursue NCAT orders under section 232 to compel the Owners to fulfill their legal responsibilities.
106 DUTY OF OWNERS CORPORATION TO MAINTAIN AND REPAIR PROPERTY
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.
(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
(7) This section is subject to the provisions of any common property memorandum adopted by the by-laws for the strata scheme under this Division, any common property rights by-law or any by-law made under section 108.
(8) This section does not affect any duty or right of the owners corporation under any other law.