Building Defects and Common Property Problems.

Hi Jimmy

I listen to you from time to time when you appear on the Radio Station ABC 702. I am an Owner of an apartment in a strata title block of 6 Lots which was built in late 2011 following commencement of construction in July 2010 when the Building Contract was signed. I am hoping that you may be able to assist me.

Settlement of my purchase took place in July 2012. Within 12 months of settlement and in accordance with the Contract for Sale I served a schedule of defects upon the Vendor/Developer Company which ignored the schedule and failed or refused to remedy the defects. Amongst the defects were failure of the underfloor heating systems in the bathrooms to heat the floor tiles and failure to instal proper acoustic insulation/absorption material as specified in the Contract in the floors and ceilings above and below my Apartment to minimise, reduce or eliminate traffic, movement and other noises from within both the Apartment above me which disturb the amenity and use of my Apartment and from within my Apartment which disturb the Owners in the Apartment below mine.  In addition, the Building Contract between the Builder and the Developer provided for these 2 features to be installed in my Apartment.

To date, I have learned that the Vendor/Developer Company has ceased to exist and, as no Home Owners Insurance was required to be provided by the Vendor to Purchasers in view of the nature of the construction of the home unit building, on the advice of the Department of Fair Trading I lodged a Home Building Complaint which lead to a visit by a Building Inspector accompanied by the Builder and the subsequent issue by him of a document entitled “Complaint Inspection Advice”. The Building Inspector arrived to inspect my Apartment without my Building Complaint form and assured me that, following his inspection, he would review all the issues raised by me in that form and address them in his Report. Unfortunately in his Complaint Inspection Advice (which, I assume, is intended to be the Report), not only did he ignore or not comment upon a number of issues raised in my Building Complaint but also, as to the underfloor heating and acoustic insulation issues for which I had attached Reports from specialists to my Building Complaint, he stated that he could “feel” or “sense” some floor heat on the surface of the Bathroom tiles despite the fact that I had run the thermostats for the previous 24 unbroken hours and that, during the course of his inspection which took place at 7.30 in the morning, he had heard no noise from above and made no attempt to speak to or gain access to the Apartment below me for “testing” noise levels from my Apartment. Further, he claimed that, as the underfloor heating systems and the acoustic insulation are embedded in Common Property, these issues are not the responsibility of the Builder but should be pursued by me with the Owners Corporation.

As a result of the very unsatisfactory and unacceptable outcome of consideration of my Building Complaint and the determination or, more appropriately, the lack of determination by the Building Inspector of my Building Complaint, please assist in suggesting your recommended course of action in order to try to achieve a review of my Building Complaint by the Department of Trading without having to initiate legal proceedings in the NCAT and to pursue enforcement of compliance by the Builder who has ignored the Building Inspector’s Complaint Inspection Advice directing him to carry out  by a date which has now passed only those few works which were identified and approved for rectification at this stage by the Building Inspector. Further, so far as the defects in the Common Property are concerned, please advise whether  you believe or understand that the Builder is now relieved of liability by virtue of the finding by the Building Inspector that they fall for attention by the Owners Corporation.

As it happens and quite independently of my involvement with the Vendor, the Builder and the Department of Fair Trading, I had raised the underfloor heating and acoustic insulation matters with the Strata Manager and the Owners Corporation shortly after I moved into my Apartment more than 3 years ago and, not surprisingly, the other Owners prefer to avoid the issues as their underfloor heating systems work and they do not want to be concerned with any sound absorption issues of Apartments within the building. Perhaps their individual Contracts for Sale may not have included the noise insulation protection which I had negotiated with the Vendor which, in turn, had negotiated for this feature benefitting my Apartment in the Building Contract. There has been much discussion at General Meetings of the Owners Corporation about these issues and, in support of my stance, I arranged for the preparation of the specialist Reports to which I referred above. Recently, however, at an EGM the Owners passed 3 Resolutions for Exclusive Use By-laws, to which I was the sole objector relating to the underfloor heating systems with one other Owner not having signed a proxy and being absent from the meeting, by which responsibility is to be imposed upon individual Owners for repairs and maintenance of the underfloor heating, the hot water systems installed on the roof of the building and floor tiles in the Bathrooms, the Kitchen and on the Balconies, all of which are recognised to be either Common Property or embedded in or attached to Common Property.

I understand that, the fact that I resisted passage of the By-law relating to the underfloor heating which affects my rights under Section 52 of the Strata Schemes Management Act and will not confer any benefit upon my Lot and to which I have refused consent as the Owner of one of the affected Lots despite the resolution which imposes duties and responsibilities relating to the repair and maintenance of Common Property, that By-law may not be binding upon me. Please assist in letting me know whether that is your understanding and whether, so far as the Owners Corporation is concerned, it continues to remain liable under Section 62 of the Act to repair and maintain that part of the Common Property which is affected by the ineffective, defective or improperly laid or installed underfloor heating systems in my Bathrooms which are embedded within that Common Property and also which is affected by the apparently inadequate and inappropriate sound insulation material in the floor and ceiling above my Apartment and in the floor and ceiling beneath my Apartment. Hoping that your suggestions or advice will be helpful in my dealings with the Department of Fair Trading and the Building Inspector on the one hand and the Owners Corporation on the other.

Thanks

Geoff