- This topic has 6 replies, 5 voices, and was last updated 13 years, 7 months ago by .
-
Topic
-
Herewith my latest issue for comment and advice by my fellow posters.
I have a situation where a Property Manager has, without advising the Owners Corporation, replaced a thru-the-wall exhaust fan in the Common Property wall of the Bathroom in a Unit that they manage, and simply sent the Contractor's 4 month-old Invoice to the O/C for payment!
That the fan is actually a “Lot Owners' Fixture” on our Plan, that the cost of its replacement was over $600, and that the installation is of a very, very poor standard is not entirely relevant to my issue, but all are complications!
On receipt of the Invoice I immediately returned it to the Property Managers together with a note stating that, as Secretary, I'm not prepared to pay it because the O/C:
1) was not advised before the replacement of the fan undertaken
2) was not given an opportunity to inspect the fan and to make an assessment of what needed to be done, by whom, and by when within any constraints that may apply (e.g. budgetary)
3) because the Contractor's Invoice was made out to a third-party (the Property Manager) and not the O/C.
The complications are not entirely relevant, the fan is “Lot Owners' Fixture” and therefore the Owner's responsibility unless we could have determined that it's failure was due to an insured “event” – which we couldn't have, but it wasn't.
My concerns are to ensure that my rationale for not making the payment is sound, and equally to find a way to have the work properly re-done in circumstances where the O/C didn't engage the Contractor involved (and never has), where the O/C shouldn't have to pay for that additional work, and where the Unit Owner has I know not been advised about any of this by the Property Managers.
Any advice will be as always gratefully received.
-
Replies
-
We have had similar here. Our Strata Manager has carried out repairs that the EC were not advised of. I only found out as at the time I was the recipient of the cheque statements.
I have had many battles with our SM regarding unnotified/unauthorised repairs. Many transactions on our statements did not even identify the unit number involved.
When confronted with these our SM would say “don't worry we will just put it to your insurance”. It was then that we discovered that this was a regular occurence – that repairs, that we did not know were being carried out, were being paid for by the OC then claimed on our insurance. All without our knowledge.
I fought for 12 months to get a list of our insurance claims that were put through on our behalf without advising us. There was quite a list.
There were many concerns raised from these actions. If we did not know there was a problem with a unit, and it kept happening (as has happened) then how could we determine that further investigation or works need to be carried out? And what if the problem wasn't common property or the responsibility of the OC (which did happen) and yet we are paying for it?
How do we advise owners who may come to us on what to do about a problem in their units? An owner could come to the EC and be told it is the responsibility of the owner to fix, and their neighbour could go to the SM and have it fixed, paid for and claimed with the EC ever knowing the problem existed.
Then the SM sent out a notice to all owners that someone would be coming to inspect the units to address a problem (that many units including my own did not have). But the EC had not asked for such inspections or works to be carried out. The SM had taken it upon themselves to decided this needed doing.
We have only ever permitted the SM to carry out works of about $250 or if it were a life threatening/dangerous/damaging problem without referring to the EC first. Then they just started approving anything and everything.
Whale said:
That the fan is actually a “Lot Owners' Fixture” on our Plan, that the cost of its replacement was over $600, and that the installation is of a very, very poor standard is not entirely relevant to my issue, but all are complications!
I reckon it is relevant. If it says on the planit's a lot owner's fixture, then surely it's up to them to fix it. As for your approach, I think you're being too accommodating. They have either got the wrong end of the stick or it's a try-on but unless there's a special resolution whereby the OC has assumed responsibility for the fan, then it's not the OC's problem. And you should perhaps be asking them to tidy up the installation because they have damaged common property.
The opinions offered in these Forum posts and replies are not intended to be taken as legal advice. Readers with serious issues should consult experienced strata lawyers.
Whale,
It seems odd that the fan is shown as a lot owners fixture on the strata plan… Very unusual…
It would be interesting to see the excerpt from the plan that illustrates this.Is there an exclusive use by-law that governs this? It may refer to the OC’s ability to fix it and recover the cost from the owner.
Now for the bad news, unless you seek an order from Fair Trading you can not get the work fixed and recover the cost from the owner, unless you have their prior written agreement. Even if you get the written agreement I suggest getting the money upfront (prior to doing the work). Nothing worse than chasing an owner to pay for something twice.
I have obtained several written rulings from Fair Trading about this very matter, where property managers have put to me an invoice for work they have had done to common property without OC consent and seeking recovery. The law is on the OC’s side.
Hi Whale
I agree, the OC may refuse payment.
Secondly, two issues arise from the installed exhaust fan: (a) if there is damage to common property caused by the moist air, this might ultimately give rise to an actions against the installer, the property manager and the owner of the lot; and (b) while the exhaust fan itself is a “lot owner fixture”, in completing work to install the exhaust fan, it is possible that the common property was altered without OC authority. It is likely the original by-law 5 addresses this issue.
Finally, given the exhaust fan is a lot owner fixture, the OC cannot address the installation of this exhaust fan (as this is now a matter for the lot owner).
Regards
Chris Kerin
Partner – Building Defects
———————————-
- You must be logged in to reply to this topic.