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Topic
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At a recent AGM, the majority of owners decided to repair a balcony.
1. REPAIRS
The balcony is leaking.
The balcony is not common property.
Presumably, regardless of ownership, the leaks have to be fixed.
(a) Can the EC merely present 2 quotes – for a gold plated repair job costing approx $6,000 per lot owner – to the OC?
(b) Can my request for an independent engineer/plumber/handyman etc to establish the actual (not assumed) cause of the leaks (and who will not be enriching himself by both diagnosing and doing the repairs) be rejected? (Note in this strata most folk are old and are easily led. Sweet music to the EC).
(c) If originally the balcony was erected with tiles assuming the role of a membrane, must the OC NOW lay down a new membrane (as is being demanded by interested parties) or can it limit its responsibility to fixing the leaks, perhaps by cheaper means?
2. COMPENSATION
The owner of the balcony sought and was granted compensation by the OC for “inconvenience” to him while the balcony repairs take place. Is this legal? And if so, is their a limit to what he the OC can pay him?
Please advise. Thank you.
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Replies
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To TrulEConcern
(1) I am of the opinion that if the balcony is a slab type balcony, even if it is on the Title of apartment 5, it is still the OC’s responsibility to maintain. This is because the structure of the building includes the structural slab of the balcony.
(2) It is obviously a defective balcony if it is leaking. It doesn’t matter particularly, at this stage, why it is leaking the fact is that it must be fixed by the OC. The OC has a duty to do so (Section 62 Strata Schemes Management Act 1996).
(3) Please be aware that the OC can still be responsible for the maintenance and repair of certain common property elements within the boundary of a Lot Owner’s Title. I have listed these (from the Office of Fair Trading web site) in a previous comment
(4) Please read this summary of a very important 2013 decision regarding Section 62 and claim for damages. It may assist you with the claim for rent relief and inconvenience:
https://casenotes.curwoods.com.au/?p=2361
You might also like to read the Seiwa case, an older case, which dealt with a defective balcony in a Strata scheme: https://www.managementrightsnsw.com.au/files/9413/5777/7188/An_Important_Warning_For_Owners_Corporations_in_NSW.pdf
And a comparison between the two cases and their ramifications here: https://www.lookupstrata.com.au/important-new-case-repairs-maintenance/
(5) See also strata and landlord insurance definitions of what makes a property inhabitable or habitable when repairs and maintenance are undertaken by the OC:
In most strata schemes, the lot owner owns the inside of the unit but not the main structure of the building. The balcony slab in my opinion would form part of the main structure of the building. However the structural engineering drawings of your scheme may reveal something different.
The common property also includes the ceramic tiles originally attached to a common property surface (eg. the floor or boundary wall). If the tiles have been changed then they do not form part of the common property.
To TrulEConcern
You wrote that your solicitor stated that:
The strata map shows a vinculum between the balcony and the lot concerned.
In my opinion that fact is irrelevant to the issue of the balcony floor as common property and its structural defects.
An explanation of the lines on a strata plan:
Thick or dark lines:These lines refer to structural common property walls and are the owners corporation responsibility to repair and maintain. They include tiles, as well as the structure. Painting and wallpaper are not included and are the owners responsibility to repair and maintain.
Fine or thin lines: These are boundary lines marking the boundary of the lot. You will notice that they may be fences or the boundary of your carspace.
Curved lines: This curved line is called a ‘vinculum’ and relates to two parts of a lot that are joined together. You may see these on a plan joining a courtyard or balcony to a lot. That, however, would make the airspace of the balcony part of the lot, not its actual structure.
It should be noted that all floors, ceilings and stairways are common property except if the strata plan states otherwise or a special by-law has been registered.
Below are two documents which may help you to understand the differences between slabs and walls and boundaries and how the common property issue fits into these elements:
https://rgdirections.lpi.nsw.gov.au/strata_schemes/miscellaneous/pre_1974_plans
And
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
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