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@JimmyT said:
Others say that the Who’s responsible document is irrelevant – common law says that if something belonging to you causes damage to something belonging to me, then you are liable for repairs.
I think that’s part of the issue. Common law doesn’t actually say that. Usually negligence is required. And in many circumstances common law has been replaced with other laws.
I agree that an OC could often be seen to be negligent. But sometimes that’s easier to say that than to prove.
In my latest example, and I’ve been through a few similar situations, a copper pipe burst inside a masonry wall. It was, according to the OC, the first time it’s happened. So exactly how would the OC be considered negligent? How could they have reasonably prevented it from happening? Did they breach any maintenance responsibility or duty of care?
Sure I could commence action against the OC. The OC has insurance including liability insurance. But the insurance company declared the OC not to be legally liable. And most OCs would most likely accept that as being correct – after all the insurance company should hopefully know the situations that their policy covers…
I agree that a roof might be another matter but think it can depend on the circumstances. In another OC to the above, we get the roof professionally inspected annually. The OC does this because it has been professionally recommended. If a defect occurred that the annual inspections didn’t pick up, I’m not so sure the OC would be legally liable if that defect affected lot contents. And that has actually happened. Fortunately insurance covered everything that time.
As to the “who’s responsible?”, that has to be voted on to be valid and it doesn’t of course mean an insurance company will be bound by it, so the OC itself might have to foot any bill. In my case of the burst water pipe, lot property was damaged in order to access the pipe to repair it. But the insurance company repeatedly refused to pay for that lot property damage. So I’d have to claim against either the OC or my contents insurance. I’m not sure I’d win the former and I’d have to pay excess on the latter.
Having both building and contents insurance is really the key to getting all damage covered. But as the OP has discovered, a contents insurer might not pay until they are satisfied that the building insurer has denied cover.