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Our EC recently received a request from a particular lot, to have a damaged awning and exterior door fixed/replaced. We have established that these items are common property and therefore the OC is responsible for their repair/replacement.
However, this is the tricky part. Two other lot owners have witnessed the previous rental tenants of the requesting lot, causing the damage.
So effectively, the requesting lot owner is asking all other owners to pay for damage caused by their tenant. Purely on principle this seems wrong, so how do we go about this?
Do we simply dip into the capital works fund, get it fixed/repair then charge it back to the lot owner? Or just ask them outright to pay for the repairs themselves?
At which stage the lot owner is welcome to recover the cost from their tenants rental bond. This of course is beyond what the OC/strata is concerned about.
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The key words are “previous tenant”. I would think that the damage from the previous tenants should have been brought to the attention of the OC, the lot owner and/or the Letting Agent when the damage occurred.
In my opinion it is now too late for the damage to be paid for by the Owner as the Owner cannot recoup the money from the rental bond once the tenants have vacated the property and the bond has been released.
In my opinion the OC should now bear the cost. However ‘unfair’ this appears to be, it is a reminder that any damage to common property should be brought to the attention of the OC as soon as the damage occurs. This enables immediate action to be taken.
I’m going to disagree with Lady P on this one. Care of the common property in a lot is the responsibility of the lot owner, as is the behaviour of their tenants. If the lot owner didn’t spot the damage in their inspections between tenants, then the fact that they have missed the chance to claim against the bond is down to them and their agent. It doesn’t mean they are not responsible.
It’s similar to someone saying “my insurance won’t pay for the damage I caused there fore I am not responsible.” Is the owners corp liable becasue some other owners saw the damage being caused? I don’t think so.
In this specific instance, I would tell the lot owner that they can either repair it themselves or let the Owners Corp repair it and charge them accordingly. And, unless it was dangerous, I wouldn’t be rushing to repair anything until the lot owner accepted responsibility.
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.
“Two other lot owners have witnessed the previous rental tenants of the requesting lot, causing the damage.”
So what was the time frame from when damage was allegedly done and the other lot owners reporting it?
If the landlord isn’t there and wouldn’t have reasonably noticed it then surely it is incumbent on other owners to report it to the OC for remediation and prevention of further anti-social behaviour?
Also, if the tenancy is managed by an REA shouldn’t they have done a proper condition report at the end of the previous tenancy and again at the commencement of the new tenancy?
If there was no reporting by the other owners when they witnessed the damage being done then it might be argued that the OC should bear the cost of the repairs.
Whatever the outcome it would be an appropriate time to remind all residents (owners and tenants) that if they witness damage being committed it must immediately be reported to the OC and if necessary to the police.
In the ACT, and I expect elsewhere, the lot owner and any tenant are held to be responsible for any breach of rules/bylaws jointly and separately. I think the OC should negotiate with the lot owner. If the lot owner agrees to make the repair then allow that, but make sure you have a time-frame in writing and specify what constitutes a proper repair. If the lot owner does not agree to make the repair, then the OC should make the necessary repairs the common property at a reasonable cost and then bill the lot owner for the cost. If the lot owner refuses to pay then the OC can get a Tribunal order that they must pay. The lot owner may or may not be able to recoup the cost from the tenant, but that is ultimately the lot owner’s problem.
@Frank said:
Beside the point though, interested in what our options are now that we’ve established the source of the damage. Surely lot owners can’t just wash their hands and pass the buck to whichever Joe/Jane they decide to rent their property to?Not sure what you mean by that. If the tenants did the damage then the landlords should get compensation from them. If they can’t, that’s their tough luck. Unless its genuine failure of common property rather than damage by tenants or other occupants, this should not be paid by the owners corp.
In fact they should be insisting the lot owner pays. Owners corps are not a charity for the benefit of landlords who are too slack to manage their investments properly.
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.
Just one more point, if you are in dispute with the owner over who is responsible for the damage, you don’t have to repair the common property until the dispute is resolved. (See below)
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.(4) If an owners corporation has taken action against an owner or other person in respect of damage to the common property, it may defer compliance with subsection (1) or (2) in relation to the damage to the property until the completion of the action if the failure to comply will not affect the safety of any building, structure or common property in the strata scheme.
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.
Good outcome. Often diplomatic persuasion is the best way, especially if you can show that you could sort it out formally if the person won’t be persuaded. IE. Tread softly but carry a big stick.
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