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hi there, I’m new to this forum so please bear with me if my question goes over old ground. I’ve done a search but can’t find a similar query. This is a long story. I will try to be as brief as I can.
i’m a member of the owners committee for a small strata in sydney. In March 2017, when we had high humidity and extreme rain, two of the units in our block (my ground floor unit and another in the same position two stories above) experienced ‘popping’ of our original parquetry flooring. My instinct was to blame the high humidity as I knew several areas of the parquet were ‘drummy’ and the glue had pretty much powdered as the building (ergo the floors) was about 50yrs old. The owner of the other unit, which is rented out, informed the strata manager that their floor was also damaged, however that person insisted that the cause was water soaking through the double brick walls, coursing under the floor and effecting the damaged patches, which were located some distance from the wall, in central, high traffic areas (NB about 12.5% of her floor was deemed damage by the builder hired to quote on repair).
The owners committee were at a loss to understand this owners reasoning however we organized the appropriate investigations. The owner repeatedly accused the committee (of which they too are a member) of downplaying the seriousness of her concerns (we did not) and then began berating us for ignoring the issue of the floor repairs (despite insisting we investigate the water ingress issues before fixing the floor). Our strata manager advised the committee that an insurance claim would be unsuccessful as the floor damage appeared to be wear and tear and we had explicit exclusions for that in our policy. Despite this advice this owner insisted a claim be made… and so the committee authorized the strata manager to initiate the process (NB despite insisting that my floor NOT be included in the claim it was and so consultants hired by the insurance company investigated both units). Needless to say the claim was rejected. The owner in question appealed the results of the consultant builder and engineers reports. This appeal was also rejected.
Somewhere in this process the owners demand morphed from insisting the committee repair the floor (which we all acknowledged we had a responsibility under the law to do), to us replacing the floor in its entirety – despite the owner insisting that before the March weather event her floor had been in pristine condition. She has stated in writing that over the lifetime of ownership the floor has been sanded and polished 3 times – always, she insists, “very carefully”. Despite this the reports from the insurance company explicitly state that the vibrations from a sander MAY have caused the glue to pulverize.
So… Upon receipt of the reports from the insurance company the owners committee applied to department of fair trading for mediation – as I had been advised to do during several calls to DFT strata help line. Our desire was to clarify the scope of our responsibility towards the floor given the owners past actions and negotiate a reasonable settlement. We repeatedly acknowledged our responsibility to repair the floors however since the demand morphed into replacement, and therefore the cost impost on owners has trebled, we sought guidance through the mediation process to define the scope of our responsibility.
last week I followed up on our mediation application only to be told by the customer service supervisor that OCs shouldn’t really initiate these things – despite there being no mention of this in the mediation guideline… but that the aggrieved owner could initiate against us for this issue (she was incensed at the very idea of mediation). He promptly cancelled our application. I wanted to scream!!
the committee are about to make what we deem to be a fair offer to the owner – to repair the floor as is or to give her the equivalent value in cash towards replacement.
My question is… have we acted properly and with due care? Is there anything else would coul have/ should have done??
thank you for you patience and, in advance, for your wise counsel. ????????
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There seems to be no dispute that there is a recognition by all parties that the original parquet flooring is common property.
The issue seems to be whether the OC is responsible for merely repairing the floor or alternatively, totally replacing the flooring.
Is the parquet floor able to be repaired? If so then I would suggest that be the correct course of action.
However, you mentioned that the floor had been re-sanded and re-polished 3 times. Was the parquet flooring re-sanded by the OC or was it re-sanded by the owner?
If it was re-sanded by the owner then I would think that the owner would now be responsible for any repairs due to the fact that by taking on the repairs themselves 3 times over the intervening time they have now waived the obligation of the OC to become involved in repairing the flooring. If the previous 3 repairs were not authorised by the OC then how can the owner prove that were competently carried out? By undertaking this work without authorisation the owner may have damaged the common property.
The situation is slightly different if your OC has approved the adoption of the Common Property Memorandum at a General Meeting. The model Common Property Memorandum as outline by the Office of Fair Trading states that owners are responsible for sanding and re-lacquering the flooring. If so, then the OC would be responsible for re-glueing the parquet pieces to the slab but the owner would be responsible for re-staining and re-lacquering the floor.
I think that the OC has 2 choices to offer the parquet floor owner. Either (1) repair the flooring at the OC’s expense (that is the ‘generous’ offer) or (2) do not repair the flooring and do not replace the flooring i.e. do nothing about the flooring, due to the owner conducting their own unauthorised repairs on 3 separate occasions.
There is no obligation on the OC to repair or replace the flooring that is not damaged i.e. 87.5% of the flooring.
Option 2 allows the owner to take this matter to Mediation or to the Tribunal if they choose to do so.
I would not offer any cash money to fix the problems.
Here is a link to some legal opinion on the topic: https://hflawyers.com.au/why-owners-should-not-repair-common-areas/
I generally agree with Lady Penelope, however in respect of sanding and polishing that is maintenance rather than repair, and it would be reasonable for an owner to do that – the only issue in that regard would be whether the sanding and polishing was done properly, and whether that contributed to any possible damage.
It sounds like the OC has been more than reasonable, it is not clear on what basis the owner is claiming that the whole floor has to be replaced. If it can be repaired, then the OC should proceed on that basis. Owners often don’t understand that if they are claiming something is the OC’s responsibility, then as a general rule the OC decides how to progress it, provided the measures taken are reasonable.
In relation to a cash offer, as Lady Penelope says, do not go down that road. Whatever the OC’s responsibility may be, they should remain in control. For example, what would happen if you paid the owner the cash, and she did not repair the floor, and then sold the apartment?
If the owner chooses to replace the floor, as per Lady Penelope’s and my advice, that is her decision and the OC should not contribute in any way financially.
What the OC should be doing is saying we will repair the floor, we do not accept that we are responsible for replacing a whole floor. If the owner wants to replace the floor she has to pay for it.
If I were an owner with an original floor I would be concerned if the OC tried to remove that from what is considered common property.
@danih said:
… the sanding and polishing was done by the owner without the knowledge, permission or cooperation of the OC.
Somewhere lurking at the back of my mind (and possibly nowhere else) is a clause in strata law that says lot owners have a duty to care for any common property that forms part of their lot.
Regardless of that, the simplest answer is for you to tell the owner who want their parquetry repaired that if she’s not happy with your offer she can take you to Fair Trading – which you’ll be happy to do.
As for the person who wants the new floor, tell her you will pay the same amount towrads the new floor as you would have for the repairs, once it is laid to your satisfaction (re insulation etc) provided they take ongoing responsibility for its maintenance from here on in .
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.
Jimmy – there’s only one owner, she wants the floor replaced.
@scotlandx said:
Jimmy – there’s only one owner, she wants the floor replaced.Advice to self: Drink less, read more!
dahni said
the owner we are in dispute with keeps upping the anti and creating drama where there shouldn’t be any. It’s very frustrating and that’s why I’m trying to clarify the letter of the law. Very unkind accusations (to be polite) are being flung at us and we are trying to reduce the venom and vitriol by behaving professionally. We hope…
The best way to deal with this is sometimes to say you are not equipped to deal with it: “Please take us to Fair Trading and NCAT because we don’t want to do the wrong thing by you and all the other owners.” Mediation is now free at Fair Trading – if they real want a fair result, what’s stopping them?
Seriously, regardless of what the law says, you have no obligation to make the running on this. All you have to do is return serve.
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.
This particular case is probably all over but why would anyone think that a floor covering (parquetry) has anything to do with common property (my understanding being that parquetry is adhered to the floor) – even if the damage was caused by a failing in the common property. It seems to be established that where a water leak from common property pipes causing paint damage to the ceiling below the paint damage is not covered by the OC.
In the case above it appears to have been established that the damage was not caused by any common prop. failure and that the parquetry was adhered to something i.e. the actual common property floor and thus should have the same status as originally laid carpet or original paint on walls.
Because the parquetry flooring was the original flooring and formed part of the common property, which is often the case.
We can debate who is responsible for damage to owner’s property caused by a failure in the common property, but in our scheme we have paid for that type of damage. Of course, an owner should be insured to cover that.
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