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The Unit above my daughter’s Unit is leased and neglected by the landlord. Water leakage caused serious mould to appear in this Unit and it spread to my daughter’s Unit. The landlord refuses to compensate for the cost of fixing my daughter’s Unit. Does the OC legislation in Vic cover this situation?
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Normally I would say this was between the two owners concerned but Section 48 (below) says that the Owners Corporation has the right to order an owner to repair their lot when it’s condition is detrimentally affecting other lots and even repair the lots themselves if the owner refuses to do so, charging them with the cost of repairs after they are done.
Section 129 (also below) says the owner has a duty to look after their lot if not doing so affects other lots.
Now, we are getting into the weeds on this but a major factor is whether or not and when the Strata Committee or Strata Manager knew that this property was not being properly maintained and/or that it was affecting your unit.
If they knew and did nothing, you may have a case against both the owners corp and the other owner for neglecting their duties under the Act.
If the owners corp didn’t know about it, it might be a simple claim through the courts against the other owner.
Either way, it could be well worth contacting an experienced strata lawyer and asking them the best way to get the repairs done that won’t cost you a fortune to pursue.
By the way, my opinion is not legal advice but I think you may have grounds for compensation – talk to a strata lawyer.
48 Lots not properly maintained
(1) If a lot owner has refused or failed to carry out repairs, maintenance or other works to the lot owner’s lot that are required because—
(a) the outward appearance or outward state of repair of the lot is adversely affected; or(b) the use and enjoyment of the lots or common property by other lot owners is adversely affected—
the owners corporation may serve a notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works.
(2) If a lot owner has been served with a notice under subsection (1), the lot owner must carry out the repairs, maintenance or other works required by the notice within 28 days of the service of the notice.
(3) If a lot owner has been served with a notice under subsection (1) and has not complied with the notice within the required time, the owners corporation may carry out the necessary repairs, maintenance or other works to the lot.
(4) An owners corporation may recover as a debt from a lot owner the cost of repairs, maintenance or other works carried out under subsection (3).129 Care of lots
A lot owner must—
(a) properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the 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.
Does the OC legislation in Vic cover this situation?
I agree that s.129 is the part of the OC Act that covers this situation. A lot owner can choose to independently start a legal process against another lot owner due to s.129 without the OC’s involvement.
I have not seen a case where the OC itself was compelled to take action under s.48 if only lot property was being adversely affected. Most OCs in VIC leave lot to lot water ingress matters to the two lot owners to resolve and for insurance to take care of any consequential damage.
But if the common property itself was being damaged the OC would be obliged to take actions under s.4 and s.46. In virtually all the lot to lot water ingress issues that I have dealt with, the common property itself was not damaged and did not need repair. Even mould affected lot ceilings were treated and then repainted. If it went on for too long or the ceiling (assuming it’s common property) became damaged it would be different.
To add:
You need to be sure that it’s the other lot’s property that is causing the issue. If it’s common property that’s causing the issue, the OC must repair it.
And sometimes in these situations it’s the Water Act 1989 that also applies. Under the Water Act, owners of property can be liable for water flow into another property. That liability can apply within an apartment building.
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