- This topic has 8 replies, 7 voices, and was last updated 1 week, 1 day ago by .
-
Topic
-
A balcony on the top floor has been proven with a dye test to be leaking into the ceiling of apartment below.
The original surface of the balcony has been altered by the apartment owner by cement bedding tiles over the entire surface and there are later attempts at repairs by parging the junction of brick walls and balcony.
Strata plan says interior of balconies are responsibility of owner however Strata manager says this is OC’s problem to fix it. Given that balcony has been altered surely this is apartment owner’s problem to fix not only the balcony leak but also the damage to the apartment below?
-
Replies
-
If the balcony is common property (which it probably is, in NSW at least) it’s the OC’s responsibility to have it fixed – which may mean proving it was damaged by the owner then charging them for the work.
If it’s lot property, the OC should take action against the owner for allowing common property and lot property elsewhere to be damaged.
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.
As Jimmy says, the balcony itself is likely to be common property (unless the building is old, when it kind of might be the owners property – it’s complicated for older strata buildings.) However, if a previous owner renovated the balcony by adding tiles – then there should be a renovation by-law in place, which makes the common property involved in the renovation the responsibility of the owner to maintain and repair in the future. If there’s no by-law about that, then that renovation is an unauthorised renovation, and the Owners Corporation can now negotiate to register such a by-law, or else take action to have the balcony restored to its original condition (by removing all the additions and remediating it to match the original condition of the balcony – which the current owner must pay for). Then, there’s the past repairs, which might have been done by the Owners Corporation or by an owner, and they might be under warranty, or else the party who paid for those repairs are probably now responsible for making any problems arising from those repairs good…
It’s a mess isn’t it? Still the water proofing has failed and water is getting through the balcony floor slab into the Unit below. That slab is clearly common property. But the water proofing membrane (or system – there might not be a membrane, and the tiles could have been the main way of water proofing) is whose responsibility? If damaged by the later renovations or repairs done by an owner, then it’s likely the owner’s job to pay for the repairs. It will possibly work out to be a joint responsibility?
A suggestion is to get an expert to investigate and report on the cause and the solution, and get quotes for the cost of the solution. Both parties can share the cost of getting the report. Or if there is ill-will involved, then each party can get its own report and pay for that themselves. Then they can read the report, and divvy up the cost of the repairs by the proportion of the attributed cause.
Then there’s the 3rd party involved, who should not be neglected – the unfortunate owner who is suffering the consequences of the leaks – they need to ensure that the other parties get a move on and fix things. Certainly, if there are any unnecessary delays, then they need to go to the Tribunal, and get orders to have the problem fixed. The dispute is less about how to fix the problem, but mainly who will pay for that. Concentrate on fixing the problem now, and working out who pays what later.
I suggest you search “owners corporation pay for damaged caused by lot owner”. There are many strata lawyers discussing this topic. Here is what I gleaned from a quick search. I found the following info on a Marsdens Law Group web site but I have difficulty posting links in forum posts.
Whilst the other lot owner is responsible for the cost of repairs, you will have to get the owners corporation involved. The Owners Corporation is responsible for keeping common property maintained.
If the other owner does not offer to pay for it:
- NCAT cannot award damages to you. You have to go to a court.
- Strata Schemes Management Act 2015 Section 153 Owners, occupiers and other persons must not create nuisance. The damage to the ceiling is the nuisance. A lot owner caused the damage. Therefore, the lot owner is responsible for repairing it.
- Strata Schemes Management Act 2015 Section 106 Duty of Owners Corporation to maintain and repair common propertyEven though the Owners Corp did not cause the problem, they have a duty to see it get fixed.
The rules for including balconies in common property changed around 1974. It would be helpful to ask a lawyer to read the strata plan note about “interior of the balcony”.
I am new to this site and already find it very interesting. I have a query while the matter of balcony is discussed. Say in most cases a balcony is owned by the OC and as I read the posts, it is the OC which is responsible to maintain it. If the only people who can get to the external balcony are those in one lot, how is it that all lots must pay for the maintenance?
The fact that some owners have a balcony is reflected in their increased Unit Entitlements (or should be). Therefore, in very simple terms, owners with balconies pay more in their levies. However, there are also collective benefits in maintaining balconies properly, including but not limited to the appearance and structural integrity of the whole building, both of which can affect the value of all the properties in the block.
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.
Quick question. Was the balcony enclosed? In other words, did the owner enclose the balcony with a by-law approving that the owner can do this? Then couldn’t the owner retile it as desired. But. That means they are now responsible for any leak.
This leads so another question. What if an owner replaces a legal height balustrade without a by-law in a genuine desire to save lives of small children? Do they have to remove it?
I have 3 questions on this and will ask them separately.
Shortcrust mentioned in her case all units paying for repairs. Jimmy pointed out that unit entitlements should reflect that units with a balcony have (or should have) different unit entitlements.
Question: If u/e do not reflect this benefit to a particular unit or units, can those who have similar (possibly identical) u/e argue that they are being triple disadvantaged? After all, they have no balcony; they have to pay so another owner can enjoy a balcony with no allowance for other owners to also use the balcony; and the share (of some other owners) of the upkeep is identical to the share paid by the guy with the balcony? If this is true, what can non balcony owners do?
It smells like a rort I heard of years ago. A developer keeps the said balcony unit for himself to live in until he sells (or rents out) and all the while his amenity (lifestyle) is subsidised by everyone else. Surely an exclusive use by-law obligating the balcony unit to pay for the R&M in exchange for sole use, would have been the right way to go about this. No?
Here is an explanation of unit entitlements
There is a fixed total number of unit entitlements. Each lot is allocated a fraction of this total. How much unit entitlement is allocated depends on things like the size of the lot, balconies etc. The unit entitlement determines how much levy the owner pays. The higher the unit entitlement, the higher the levy.
Suppose a strata plan has a total 1,000 unit entitlements. Each lot was allocated either 122, 125 or 128 unit entitlements, depending on their size and position in the strata plan. If the owners corporation has an annual budget of $100,000:
Lots with 122 unit entitlement pay $12,200 annual levy
Lots with 125 unit entitlement pay $12,500 annual levy
Lots with 128 unit entitlement pay $12,800 annual levy
Unit entitlements can also be used to count votes in a general meeting, if poll voting is adopted.
In NSW, Strata Schemes Management Act 2015 Section 236: Order for reallocation of unit entitlements
You can ask the Tribunal to make an order to reallocate the unit entitlements if you can prove that the existing regime is “unreasonable”. Any individual lot owner can make an application (paragraph 3). You don’t need to pass a resolution at a general meeting.
I suggest you ask your strata manager what the unit entitlement is of each lot. This should be shown on the plot plan or Certificate of Title. Speak to a strata lawyer if you think the owners with a balcony should pay higher levies. The strata lawyer could help you assemble an application to NCAT, if you are unsure of doing it yourself.
- You must be logged in to reply to this topic.