Flat Chat Strata Forum Common Property Current Page

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  • #11558
    danih
    Flatchatter

      Hello,

      A couple of months ago i posted here about our dispute with an owner whose Original Parquetry Floor was damaged in March 2017. The owner contended that water had entered her apartment through a double brick wall and damaged the centres of three rooms, including one area of damage at least 10 meters from the wall in question, with an internal wall in between.

      The OC contends that actions taken by the owner effected the structural integrity of the floor. Additionally, after acquiescing to lodging an insurance claim, investigators found no evidence of inundation. One assessor stated “the insured has either sanded this multiple times or whoever sanded the floor recently has used a heavy grit sand paper to try and get the floor flat due to the old concrete slab not being level.” This supports the testimony of adjacent owners who had witnessed the floor being sanded.

      A letter from the owner’s lawyer cited Seiwa Pty Ltd vs Owner Strata Plan 35042 (2006) as precedent in this matter. I understand this forum cannot give legal advice but I’m curious to know if this precedent does actually apply in our case, given we are contending that actions taken by the owner on the floor has effected its structural integrity (our evidence for NCAT is the insurance report).

      We do not dispute the OC’s responsibility to maintain and repair common property, however this owner insists her floor was in pristine condition prior to March 2017. She never requested the OC perform any maintenance, and in fact admits that she was not aware the floor was common property until May 2017.

      Her claims in NCAT are for the OC to pay to replace the entire floor (she has rejected a settlement offer to repair – as suggested by members of this forum) and she is also claiming compensation for lost rent.

      I am now compiling our evidence for NCAT and while confident we have a sound case I am wondering if we still need professional legal advice.

      many thanks

    Viewing 5 replies - 1 through 5 (of 5 total)
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    • #29107
      Jimmy-T
      Keymaster

        In view of the actions of this owner to try to bend the law to suit her purposes, I would say a definite YES to getting advice from an experienced strata lawyer.  You might also try to get costs awarded while you’re at it (although I’m not sure where NCAT sits regarding costs these days).. 

        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.
        #29108
        Lady Penelope
        Strataguru

          I would suggest engaging a lawyer, as JT suggests.

          Seiwa is an older case (2006) and its reasonings, as they pertain to damages for loss of rent etc, appear not to have been followed for several years. 

          See below for further explanations:

          https://insurance.moray.com.au/publication/strata-plans-cannot-be-liable-to-lot-owners-for-failure-to-maintain-common-property-for-the-moment/

          https://janecrittendenlawyer.com.au/index.php?option=com_acymailing&ctrl=archive&task=view&mailid=17&key=896709e2a80ff199be519c04c85d6721&Itemid=160

          #20100
          danih
          Flatchatter
          Chat-starter

            First let me thanks this forum, and in particular Jimmy and Lady Penelope, for your salient advice. As per the post above, our Owner’s Corporation retained an excellent lawyer and the NCAT action initiated by the disgruntled owner was withdrawn.

            Unfortunately she has now requested immediately that the strata committee authorise (and I quote)

            …an immediate inspection by a qualified engineer, followed in turn by immediate repair work, be made of the outer wall and roof of my unit, including but not limited to the following:

            –     gaps between the external brickwork skin and window frames

            –     lack of installed cavity flashing

            –     failed flashing

            –     absence of weep holes.

            These areas are points where water can access the internal areas of my unit.

            All these issues were clarified in the reports of the insurance company contractors who rejected her key assertion of water ingress.

            The strata no longer have any obligations towards her floor.

            I have no problem authorising inspections and quotes, as long as it doesn’t cost the strata a fortune. Unfortunately I believe this to be a way for her to try and game the committee and reassert her assertion that her initial problem was caused by water ingress!! a claim that has been thoroughly investigated!

            Does the forum have any suggestions for another strategic course of action? 

            #20096
            Lady Penelope
            Strataguru

              danih – The owner appears to have made several demands.

              An OC is required to undertake repairs to the common property but they do not need to follow the dictates and/or demands of the owner.

              An OC can arrange for an independent assessment of the need for repairs, and can arrange for a competent trades person to undertake the repairs.

              If I was you I would have a competent builder look at the areas of concern rather than employing an engineer. Ask the builder whether he thinks that an engineer’s report is required.

              #20097
              danih
              Flatchatter
              Chat-starter

                Thanks Lady Penelope

                I’ve been struggling to figure out the appropriate trade but your suggestion of a competent builder is certainly the logical approach. 

                You’re the best!!

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