Maintenance of Common Property

The Owners Corporation is under an obligation to maintain common property in good condition. 

The NSW Supreme Court in the case of Seiwa Australia Pty Ltd v Owners Strata Plan 35042 [2006] held that this duty to maintain common property is a strict duty which can be enforced by individual lot owners.

Obviously it is best for everyone if the OC can be made to understand the obligation which they are under without the need for legal action. However, when necessary an individual lot owner can seek orders in the CTTT to compel the OC to fulfil its duty.  

Kind regards,

Daniel Dimock

Lawyer
———————————-
TEYS Lawyers
The Strata Law Experts
02 9562 6500

daniel@teyslawyers.com.au

https://www.teyslawyers.com.au

bpositive said:

Due to the peculiar shape of our block a large portion of common property is at the rear of the building. This area is full of weeds, dead leaves and not maintained in years. A vast majority of the unit holders live in the front so they are not bothered. If it goes to vote the majority will rule that we dont want to spend money on the rear. Can anything be done about this?

It's interesting that the section of the Act that deals with the OC's obligation to maintain common property specifically refers to appearance.  As Daniel Dimock of Teys points out, their obligation is established, and they can either do this the easy way – just do it – or force you to drag them through the CTTT and then have to do it anyway. 

By the way, you should have some sort of cunning plan up your sleeve to beautify the area or somebody will suggest concreting it.

JimmyT said:

bpositive said:

Due to the peculair shape of our block a large portion of common property is at the rear of the building. This area is full of weeds, dead leaves and not maintained in years. A vast majority of the unit holders live in the front so they are not bothered. If it goes to vote the majority will rule that we dont want to spend money on the rear. Can anything be done about this?

Jimmy said; It's interesting that the section of the Act that deals with the OC's obligation to maintain common property specifically refers to appearance.  As Daniel Dimock of Teys points out, their obligation is established, and they can either do this the easy way – just do it – or force you to drag them through the CTTT and then have to do it anyway.
By the way, you should have some sort of cunning plan up your sleeve to beautify the area or somebody will suggest concreting it.

In s62 the reference to appearance relates to a decision not to maintain:

(3)  This clause does not apply to a particular item of property if the owners corporation determines by special resolution that:

(a)  it is inappropriate to maintain, renew, replace or repair the property, and

(b)  its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.

In bpositives case there is no mention that the OC has determined by SR it will not maintain the section of commons so the question of appearance is not an issue.

The issue is still; s62(1) An owners corporation must properly maintain and keep in a state of good and serviceable repair the common property ….

From Seiwa: The duty to maintain involves an obligation to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists
[Hamilton v National Coal Board [1960] AC 633, 647 (Lord Keith of Avonholm); Haydon v Kent County Council [1978] QB 433, 464 (Shaw LJ); Ridis v Strata Plan 10308 [2005] NSWCA 246, [161]]. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there not be a malfunction [Greetings Oxford Koala Hotel Pty Ltd v Oxford Square Investments Pty Limited (1989) 18 NSWLR 33 (Young J); Ridis,
[162]-[163]] ………. It follows that as soon as something in the
common property is no longer operating effectively or at all, or has fallen
into disrepair, there has been a breach of the s 62 duty [cf Ridis
[177]].

Do some weeds and some dead leaves really mean the area is no longer able to serve its purpose, no longer operating effectively or at all, or has fallen into disrepair?

I keep my 8000+sq m lot like a park yet in the last 3 months I have had to deal with a brown snake, a black snake and dispatch a death adder…. oh how i wish all I had to deal with were a few weeds and some dead leaves.

Our whole SP is devalued by the manner in which the OC does not comply with the Act or manage the common property. CTTT has done nothing.

My suggestion to bpositive is to take the initiative if you want the area to be something more than what the rest of the OC want it to be. It would be the only way to guarantee you get the area to be something other than weeds and dead leaves.

Rack the leaves and pull the weeds. Take a plan to the OC that costs them nothing and which involves them doing nothing. Every OC is full of people like those people in my OC; people who want everything for nothing.

I personally maintain over 1000sq m of common property because if i do not then it turns into walls of 2m high grass or lantana. I also maintain over 110m of fence line so the bush does not consume the fence and invade my lot. CTTT will not make the OC do it.

If by some chance CTTT made some order to turn “weed city” into “paradise gardens” then you may find all those people who do not care about the area resent you for making them pay for something they did not want in the first place.

good luck with it.

Seiwa (point 4) :The duty to maintain involves an obligation
to keep the thing in proper order by acts of maintenance before it falls out of condition, in a state which enables it to serve the purpose for which it exists…. Thus the body corporate is obliged not only to attend to cases where there is a malfunction, but also to take preventative measures to ensure that there
not be a malfunction.

Seiwa is not about keeping up appearances in the rear section of an SP, it is
not about looking pretty. Maintenance in Seiwa is not about satisfying the
aesthetic need.
Maintenance in Seiwa is about keeping things in such a state that they do not cease to “serve the purpose for which it exists” or “preventative measures to ensure that there not be a malfunction”.

Is the rear area of bpositives SP really in a state of malfunction, will it end
up in a state of malfunction if the weeds are not removed or the dead leaves not raked up? What is the areas purpose and is that purpose no longer being served due to the weeds and dead leaves?

Something can look perfect but not serve its purpose; something can look horrid but still serve its purpose.

What is the back areas proper condition and has the rear area departed (or will depart) from that condition sufficiently that it will no longer serves its
purpose? Is it the case the rear area was never much more than it is today?

Does the back area actually visually detract from the rest of the SP to the
point that people go “no thanks” when considering purchasing or is it more the case people just think “that area needs a bit of a tidy up” or is it the case the area is acceptable to the average person and it is not in a state of
malfunction or not very removed from being in proper condition.

Does Seiwa mean “tidy up the backyard” – I think that is stretching it.

I think Seiwa is waived about like a panacea.

Before bpositive embarks on the potential nightmare of playing  the CTTT
lottery remember it is $72 for mediation, $72 for an adjudication application, $72 for an appeal and write your own cheque for legal expenses after that.

Spend that money on the area before playing the CTTT lottery. Spending the money on the area will give you a return; play the CTTT lottery and you could lose the lot and still live with the urban jungle outback.

Go to CTTT and owners will diss you; spend the money on the area and you will get “building cred” and the area you want.

Better still seek exclusive use of the area; if no one cares about it then they might just give bpositive (you) exclusive use and then bpositive (you) can make it a paradise instead of an untamed urban jungle.

JimmyT said:

 I can assure you that the look of a building and the care or otherwise taken of common property has a profound effect on property values.  For a lot of prospective buyers, it's the only clue they have to the way the building is run.

You are not wrong there — appearance is very important. People come to my SP and like a lot but then quickly drive off after driving around the SP.

The obligation to maintain and repair is arguably an OC's most pressing responsibility. There is no obligation to present the SP in its best possible fashion but presentation reflects the “personality” of the OC and as Jimmy points out it can be the best clue as to how the SP is run.

It is in every owners best interest to have a nice looking SP. Twenty or thirty dollars extra on a levy, per quarter, can be worth thousands when it eventually comes time to sell. If that is the cost of a nice building then I agree that the money should be spent.

Some SPs sell units as quick as they're listed on the back of the SPs' reputation; other SPs' have a bad reputation that precedes them which devalues units and makes selling more difficult.

If bpositive can convince his OC they have a undeniable duty to pull weeds and rake leaves then he will have done well. I think Jimmy would agree it is hard to get a majority of people from an OC to do something they do not want to do or to get them to do something that they have acquiesced to through apathy.

I'm sure bpositives' SP would be better off for cleaning up the rear area but it should not be a case of interpreting and waving around Seiwa just to clean up the backyard. That is the sad aspect of this issue.

I would still encourage bpositive to seek exclusive use.

I think there's a general consesus in this forum not just that the area at the back should be maintained but that, legally, it must be maintained.

If I were you, I'd be having a cup of coffee with the EC office bearers and telling them (very politely)  they can either do this the easy way – just pay for the garden to be tidied up and maintained – or the hard way: fight it through the CTTT and then pay for the garden to be tidied up and maintained.

What they can't do is ignore the issue because doing nothing is legally not an option.

If you can take along a number of valid quote for the work from contractors who already work in the area, then there's not much in the way of an argument they can put up against it.

JimmyT