Flat Chat Strata Forum Common Property Current Page

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  • #7399
    Whale
    Flatchatter

      I need some expert assistance with this!

      I am a Proprietor, and I parked my rarely used second vehicle in a Visitors' Parking space within our Basement Carpark for a short time (Mon 11pm – Tues 3pm).

      I am not a habitual user of these spaces as my “veteran” vehicle is usually garaged off-site, and I failed to notice that one of the many “leaks” of lime-laden / white coloured liquid that drips from around the various points where sewer and drainage pipes exit our carpark's concrete roof was right above this Visitors' space.

      Needless to say, this lime-laden leachate badly damaged the paintwork of my pristine old car, and as it's 60yo acrylic paint the entire roof has to be treated and resprayed.

      I wrote to the Sec. of our Executive Committee, and very politely requested some reimbursement of my costs ($1,600) either ex-gratia by the Owners Corporation or via a Claim on our Insurers (CHU).

      The Sec's response in part is as follows:

      “You were parked in a visitors parking space which under our constitution is not allowable for the lengths of periods that the car was there. 

      I have been advised that we are not liable.  It is up to Residents to advise if there are any problems and as such, we address any issues raised.  As each Resident has asked for assistance to stop the water leaking etc, we have had trays put up.  Our insurance does not cover vehicles parked in the garage area as it is considered a “wet” area. 

      I suggest you contact your own insurance company for assistance.”

      OK, I know that the Model By-Laws state that Owners & Occupiers are not permitted to use the Visitors' Spaces, but there's apparently a “Constitution” that I've never heard of or seen that permits parking for some period of time (?).

      My intended line of argument to the Owners Corporation and our Strata Manager will be (subject to advice) that:

      1)  Visitor's carspaces aren't marked as such, they just don't have Lot numbers painted on them, so very occasional users such as myself really don't know, and may use them inadvertently;

      2)  All visitors' carspaces are Common Property and are under the care of the Owners Corporation (O/C);

      3) The Constitution (if it exists) has no standing under the SCMA, and would therefore need to be backed-up by Special By-Laws setting out the conditions under which Visitors' Carspaces may be occupied, and I'll ask for a copy of those;

      3) The O/C has acknowledged that the leachate is a problem, but relies upon Residents to report “leaks”, which they'll then address by installing drip-trays below the carpark roof to divert the leachate away from vehicles, BUT;

      4) The minutes of the last two AGM's include Resolutions that the O/C will undertake, or will have undertaken, a Risk Assessment of the Common Property and develop Corrective Actions; this has never been done so the O/C is liable for my vehicle's damage;

      5) Our Basement Carpark area is surely not regarded as a “wet area” by our Insurers (CHU), and in fact should be a “dry area”, and indeed it would have been dry IF the O/C had done the minuted Risk Assessment and implemented Corrective Actions.

      6) If our Insurers (CHU) have indeed declared that our Carpark is a “wet area” and therefore not covered by the Legal Liability Cover contained in the O/C's Building Insurance, then I'd like them to corroborate that.

      Any advice here will be greatly appreciated, and particularly any precedents where Proprietors' damage has been covered by Building Insurance. By the way, the leakage is not weather related; it's there to varying degrees all of the time!

      Help!!!!

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    • #12867
      Jimmy-T
      Keymaster

        It strikes me there are three separate issues here. Firstly the “illegal” parking, secondly the 'leaching” and lastly (and leastly) the mysterious 'constitution'.  To dispose of that first, if it's not by the by-laws then it has no legal force (although it might be used to prove that certain things were accepted practice.)

        Secondly, there is the leaching – this is a responsibility of the Owners Corporation and any damage to a bona fide visitor's car, you would expect, would be the responsibility of the OC. Are your legal rights eradicated by parking illegally?  I don't think so.*

        Finally there's the question of parking there illegally (and let's assume that was the case, for the sake of argument).  Look at it this way, if any car had been parked there illegally and the OC tried to move it and damaged it in so doing, they would, I think, be liable.  The illegal parking and the damage done would seem to be two separate issues.

        I reckon the EC should be issuing you with a Notice To Comply on the one hand, an a cheque from their insurers on the other. And, by the way, they should be doing something about the leaching.

        *I am neither a lawyer nor a strata manager and I might be totally wrong on this.  So any professionals reading this – or anyone who has come across anything like it – please chip in and let us know what you think.

        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.
        #12962
        We agree that the by-law contravention in respect of parking in a designated visitors parking area is a separate issue from the damage to the vehicle.

        Under s.62 of the Strata Schemes Management Act 1996, the owners corporation has a duty to maintain and repair property.

        If the owners corporation has failed to maintain and repair common property and this has resulted in damage to personal property, the owners corporation is responsible for the damage and a claim can be made against the owners corporation.

        Under s83 (1) of the Strata Schemes Management Act 1996, “the owners corporation of a strata scheme for the whole of a building must insure the building and keep the building insured under a damage policy with an approved insurer”. Therefore, the car parking area, being part of the building, ought be be insured.

        Yours faithfully
        Simone Balsara
        Lawyer
        ———————————-
        TEYS Lawyers
        The Strata Law Experts
        02 9562 6500 or 1300 TEYS LAWYERS

        #13492
        Whale
        Flatchatter
        Chat-starter

                                                 — UPDATE — 

          I made a Claim against the Owners Corporation (O/C) based primarily on the fact that it hadn't properly maintained the Common Property under S62 of the Act.

          I was prepared to put a Statement of Claim before the Court System, but eventually the O/C itself made a Claim against it's Building Insurance (Liability) and I today received an Offer of Settlement in the full amount of my Claim.  

          Thanks to all those who provided advice!! 

          #13606
          Dolphin
          Flatchatter

            I was hoping to seek some expert help also…

            My issue is exactly the same as 'whale' except:

            • This is a residential property and I am a tenant in the apartment complex
            • My damage is corrosion on the rims of my 2 alloy wheels expose to the water leak over the last 4 months
            • The property is in Darwin

            The damage is approximately $2500 and I have approached the body corporate for reimbursement to the damage.  Their respond was as follows:

            • Their Insurance company does not cover this claim as it was damage to my car???  I thought the body corporate must take out insurance to cover for loss or damage to third party property?

            As such I was wondering is there an equivalent act to s.62 of the strata scheme Management Act for the NT that I can make a claim against to achieve a positive outcome as per previous post.

            My other concern is that I am leaving Darwin in 4 days and I feel they are using this as an excuse and dragging out the time in the hope that once I leave it would make it more difficult for me to put a claim through the local court.  This lead me to the next question, can I put this claim in a different state?

            #13611
            Jimmy-T
            Keymaster

              Just because their insurance doesn’t cover cars doesn’t mean that they’re not liable – it just means they are under-insured.  They are probably responsible for damage cause by their negligence (ie, failure to repair the leaks).

              I think you may have left your run a bit late … I am pretty sure you won’t be able to to raise a claim under another jurisdiction (every state has its own strata laws, for a start).

              But talk to a solicitor in Darwin about their equivalent of the small claims court and make sure you have a reasonable chance of having costs awarded in your favour.  Then get them to send a letter to the EC claiming the money (plus the costs of their time).  That might be all it takes to get them to pay up.

              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.
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