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Hello everyone.
I live in a warehouse apartment such that all the units, including my own, have three stories which are ‘vertically self-contained’, i.e. although we have common walls, no other unit is under or over any other unit.
The flat roof of my unit is a tiled terrace which is for my use only. Directly underneath that terrace is my living room. The deck is leaking (a problem with the tanking/membrane I’m informed) and water is dripping into my living room via the ceiling.
Although common sense would tell me that this is (or should be!) entirely my responsibility to repair (my terrace, my living room), I don’t want to foot the bill if my terrace is common property and therefore, I assume/hope, covered by the building insurance taken out by the owners’ corporation.
The strata was registered post 1974 and I live in Victoria.
Is my rooftop terrace in fact common property?
Any help would be greatly appreciated!
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I believe it is common property, but whether it’s an insurance job or Strata cost is debatable as insurance could claim it’s just fair wear and tear if it’s been on since 1974. Flat roofing membranes don’t last as long as tiles or metal roofing. Last time I had a flat roof the membrane only lasted 12 years before leaking and requiring replacement.
I found the following excert from:
Principles and provisions of Memorandum No AG600000
2.3 Ceilings and Roof. Common Property.
a. Ceiling cornices.
b. False ceilings installed at time of registration of the strata plan.
c. Guttering.
d. Membranes.
e. Plastered ceilings.
f. Vermiculite ceilings.2.4 Ceilings and Roof. Lot property.
a. False ceilings inside the lot added after registration of the strata plan.
b. Paintwork inside the lot.It is produced by NSW Gov but it seems it needs to be approved by your OC to be valid. Don’t fully understand the implication.
The only way you can tell for sure whether or not the roof is common property is by checking your strata plan which should have been part of your purchase contract.
However, the chances are that it is common property as the roof is such an important part of maintaining the structural integrity of the building.
I doubt very much if the building warranty will be of any use to you unless the building is less than six years old and lower than three storeys in height.
So make your claim but remember the repairs will be done to the Owners Corp’s standards, not necessarily yours, so be prepared to compromise if you want the terrace to look as good as it might. By compromise, I mean put some cash in to get your choice of tiles laid, rather than theirs, if that’s an issue for you.
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.
@kiwipaul said:
I found the following excerpt from: Principles and provisions of Memorandum No AG600000 …
It is produced by NSW Gov but it seems it needs to be approved by your OC to be valid. Don’t fully understand the implication.
Hi KP, this is the famous “Who’s responsible for what?” memorandum, issued earlier this year as a guideline for disputes over strata responsibilities.
It is very handy when there are no clear definitions of responsibilities in the strata plan or by-laws. And you’re right, it has to be adopted as a by-law if buildings want to use it a a set of rules rather than guidelines. However, it’s probably the first document a CTTT adjudicator will look at when a dispute like this hits their desk – not because it’s the law (it isn’t) but because it gives them a consistent set of answers to tricky problems.
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.
Assuming your lot is strata title, there would be a stratum statement on the plan. The area above the tiled surface of the tiled terrrace is the responsibility of the lot owner. Any waterproofing on the tiled terrace is common property, the repair and maintenance being the responsibility of the owners corporation. All roofing is common property, the repair and maintenance of which is the responsibility of the owners corporation.
Further information is available from the Strata Plan Section of the Land and Property Management Authority, GPO Box 15 Sydney NSW 2001.
JimmyT said
And you’re right, it has to be adopted as a by-law if buildings want to use it a a set of rules rather than guidelines. However, it’s probably the first document a CTTT adjudicator will look at when a dispute like this hits their desk – not because it’s the law (it isn’t) but because it gives them a consistent set of answers to tricky problems.
That seems very sensible and could resolve a lot of problems without going to adjudication. It also gives Strata residents a definitive guide of what is what providing they don’t have a bylaw that conflicts with it.
BUT
It also seems to be a money grab by the state by getting you to add a bylaw to all strata developments (cost approx $1,000 each) when if they had legally made it law it would have covered all strata developments automatically. Also why bother adding a bylaw when adjudicators are going to use it anyway whether its part of the bylaws or not. Just seems to be adding another layer of unnecessary bureaucracy
I think the reason it wasn’t made law was because there are so many variables between strata buildings. The good thing about the Memorandum is that you can go through the document and remove or amend items to suit the prevailing conditions in your building before you establish the by-law.
And even if you don’t, as we’ve said, it’s a document that strata managers and CTTT adjudicators can use as a benchmark when they are scratching their collective heads over the latest dispute.
As for it being a cash-grab – I reckon this document is going to save so much time and money at the CTTT it would be worth them paying strata plans to adopt it (or an amended version).
Actually, that’s a brilliant idea. I’ll bring it up the next time I’m invited round to Fair Trading for tea.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.
@daveo said:
The strata plan shows each of the subdivided plots in the warehouse as Pt 1, Pt 2 etc. It also shows each of our balconies labelled as “BALCONY”. In the plan (top down) view, the balconies are shown separated from the unit interiors by a dotted line. Does this confirm that the balconies are or aren’t CP?Dotted lines general signify a structure below the level of the relevant plan. If plan is level 2 dotted lines indicate structure on level 1 or below.
THICK lines indicate common property boundary
THIN lines indicate structure within your lot and your responsibility.
This is for QLD but I believe the convention is Ozzie wide.
Strata insurance covers all original structural features, internal walls, doors, etc even though they are not common property (weird). You should see an entry in the insurance quote to cover fixtures and fitting as well and these are for fitted kitchens, bathrooms, fitted carpets, etc.
I would say the chances are that the roof terrace is common property and therefore it won’t be covered by your insurance.
Unless the building is less than six years old, it won’t be covered by home warranty insurance and I doubt if whatever building insurance your Owners Corp has would cover something that probably comes under normal wear and tear.
Too many imponderables. Establish if the roof is common property – it probably is – then ask the Owners Corp to fix it.
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.
I’m assuming the rooftop terrace is same as what you refer to as the balcony.
The balcony is within the lot and it’s yours to use alone, but roofing membranes are generally considered CP (see memorandum) and so it is a strata problem. The damage caused by the failure of roofing membrane would also be the responsibility of the Strata as well (unless your insurance picks up the bill, contents) as the damage was caused by a failure of the CP.
I also believe that even if the balcony tiles were fitted by yourself these would have to be removed to fix the membrane and so it’s strata problem to restore them.
Don’t see YOU have any liability unless their is a bylaw were you’ve all accepted liability for your own roof terrace.
I also doubt you will get any joy from strata insurance as they will claim fair wear and tear.
I was a bit confused between balconies and terraces, too.
FYI: You can’t assume that balconies are the responsibility of the lot owners – in fact, in modern buildings (about 20 years and newer) the opposite is more likely to be the case. Because of their importance to the structural integrity of the building, in newer buildings in NSW balconies are almost always common property with the lot owners allowed exclusive use of them.
However KP’s advice on the membrane is spot on (and applies to most balconies too). Again, check your strata plan and if you are still confused, get a strata lawyer to look at it for you. Once you’ve established what’s yours and what isn’t proceed as appropriate.
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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