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There is a gate to my property that is broken, however, I am the only person who uses it so I wonder who should pay for repairs?
*the lock on the gate attached to fence moves
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Permit me to relate a recent episode of mine.
In a small block of units, most units are on the ground floor. Each ground floor unit has an on-title garden accessed by a wooden gate used only by the respective lot.
My wooden gate needed repairs last March (the latch was broken and some wood was rotting away). I wrote to the strata committee, who ignored my email as did the agent. After chasing them up they acknowledged my email, three months after I sent it, but continued to drag their collective feet for months.
I took the committee to Fair Trading’s Mediation service (which costs nothing and an agreement b/w the parties is non binding BUT is a necessary prerequisite to applying to NCAT) and argued:
1) The gate is an original fixture (therefore “common property”);
2) The committee members had their gates repaired noting on the tradesman’s invoice that the gates “common property”; and
3) So why the alleged change in ownership? Or are non committee members treated differently?
The committee (at Mediation) tried to worm their way out of repairing my gate claiming ‘yes some gates were repaired by the OC, but since then we changed the by laws and now no gates are common property’.
I replied ‘that is a lie. No such change in by law was made’. My claim was not disproved.
The Mediator chimed in saying “even if a change in by law was made, which I am not sure it was, such a change has no effect as the gates are original fixtures and hence the responsibility of the OC to repair and maintain”.
What was even more interesting is that while the OC through clenched teeth agreed in writing at Mediation to repair the gate by late last year, they failed miserably to do so and to NCAT off I go.
If you’re confident the gate is “original” that is, it was not installed by a previous owner, then ask the committee repair the common property it as they have a duty to do so (s.106). And if you’re not confident, still ask the committee. If it really is not an “original”fixture – meaning they have a duty to repair – they will surely tell you.
Frans
You need to refer to the strata plan inthe first instance. If the gate and fence are delineated by a thick line and shows thst it’s the boundary between common property and your lot, then the gate is common property . It’s like it was a wall. In this case it’s the OC responsibility.
You then need to refer to the bylaws. There may be an exclusive use bylaw transferring the upkeep of the gate to the lot owner.The OC may argue that the lock was not part of the original building. Let them prove thst point.
TruleConcerned
The purpose of mediation is to find a resolution to a strata issue. It’s not to find whether one party is guilty. The mediator may offer advice in order to get the parties to reach an agreement, but his words can never be construed to favour one party over another.
Your victory at mediation was to get a written undertaking from the OC to repair the gate. Nothing else.
Thst the OC did not do the work as per the agreement is a breach unto itself. When you go to NCAT you will not be arguing whether the OC is responsible to fix the gate, but that the OC breached the signed agreement.
A whole different case and in my opinion a whole lot easier for you to win as it’s a matter to just prove the facts.
Thank you Kaindub, your guidance is much appreciated.
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