EC personally liable for safety issues with building?

Hi there.

We’re dealing with this kind of issue at the moment, so I’ll tell you what I’ve learned.

In NSW (where we are), the SMA says that the OC has an obligation to maintain common property to a safe standard. (Only common property though).

If they are aware of a problem, and don’t address it and there is subsequently an accident… then they can be held both accountable and liable if someone sues because they can be deemed to be in breach of their duty of care under the SMA.

The situation then arises where the OC could then acuse the EC of failure in their duty of care to ensure a safe environment and “pass the buck” so to speak, making the EC personally accountable.

Now, that is what the EC’s professional inemnity and public liability insurance is for, but our SM tells us that if there is a breach in our duty of care… the insurance company may not pay up, at least not in full, because we’ve broken the SMA.

The next question is… what is a safe standard?  How do we know what’s safe?

Well… we have no idea, so every couple of years we have an OH&S assessment done on the common property of the building and then implement those recomendations.  It gets confusing, because most OH&S inspections are done on commercial properties, and residential properties are actually exempt from most of the OH&S legislation (gazetted in 2007) since they have to abide by the rules in the SMA, which are very similar – Workcover saw this as duplication.

So we’re reallly using the OH&S report to determine what’s not safe and then dealking with those issues so that we;

1. comply with our obligations to maintain a safe environment under the SMA
2. so that our insurance is valid. 

We’re also implementing the OH&S recomendations becasue if we have tradesmen in the building… technically it becomes a place of work, and we need to comply with the OH&S legislations becasue of that.

Either way, the safest approach to protect the EC members from personal liability is:

1. Always run meetings properly and only make decisions through the approved processes under the SMA (don’t take shortcuts) that way you’re protected from the rest of the OC
2. Have an OH&S inspection yearly or bi yearly, and implement any recomendations regarding common property
3. Make sure that your insurance dues are paid up
4. Each time you make a decision to do something (or not do something) put yourself in the insurers shoes and ask yourself; “does this demonstrate a breach of the SMA or a failure in duty of care meaning we don’t have to pay up?”.

Hope that helps.

What about tenants and OHS on common property? Who is responsible, OC or owners of unit? Should SM deal directly with porpoerty manager on tenant issues or with the unit owner?

Sorry about that.

Q1. We are a 2 unit strata and have recently passed a by-law that we are responsible for the common property in our backyards. The tenant in the other lot raised a safety issue(slippery pavers) with us. If the pavers are in the area covered by the by-law do we as the other lot owner have any responsibility?

Q2. Once the by-law is passed re the care of common property, does the SM have any management role or is it the owners?

Q3. Is it usual for a SM to have direct contact with the property manager or should all property matters raised with the property manager go to the owners then the SM? The owners live in another state.