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18/11/2010 at 8:25 am #7146Anonymous
A few weeks ago I had a serious leak in my bathroom from the bulkhead that runs under the ceiling and holds the pipes from the unit above.
Strata sent out a plumber who fixed the problem and then a handyperson to fix the significant damage. They completely replaced the bulkhead and a panel on the wall behind the toilet but did not paint them.
Strata claim that as paint is not common property that it is not their problem. I get that if my walls needed painting it is at my expense but my walls were perfectly fine until the leak. I can't understand why I should have to come up with the money to return it to the condition it was in.
Does anyone know if this is right?
Thanks
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18/11/2010 at 10:11 am #12240
This is the oldest trick in the book. Yes, you are responsible for the paint in your home but, more to the point, the Owners Corporation is responsible for the damage to your property caused in the repair of common property. Send them a bill.
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.
18/11/2010 at 7:23 pm #12241AnonymousJimmyT said:
This is the oldest trick in the book. Yes, you are responsible for the paint in your home but, more to the point, the Owners Corporation is responsible for the damage to your property caused in the repair of common property. Send them a bill.
thanks
18/11/2010 at 8:31 pm #12242Jimmy T
I actually don't agree with this unless the Owners Corporation were negligent, knew about the leak and did not move to fix. Accidents happen all the time and the leak as described was an accident.
Forexample if this owner had a very expensive painting worth hundreds of thousands damaged by this leak the owners be responsible for its replacement.
I agree however if the lot owner advised the owners that there was a leak and the owners did nothing to repair the leak then that would be an entirely different story. In this situation the Owners would be liable and that is why any notification to the owners of a problem with common property must be acted on without delay.
The owner should ensure thier contents, which includes paint and carpets (and paintings). Contents insurance would pay for the repainting of the room which probably means the entire room.
In a nutshell you cannot hold the owners financially responsible for replacement of these items when the cause of the damage was not due to any negligence. That's why we have insurance to cover accidents.
18/11/2010 at 10:46 pm #12243I was probably wrong to call it a “trick” but I have checked this with strata lawyers in the past and the consensus I have received over the years is that if the damage is caused by common property then any damage done repairing it is down to the Owners Corporation, whether the individual owner has insurance or not. I admit thare are plenty of strata managers around who disagree but the Owners Corporation has a legal duty to maintain and repair common property and if someone (anyone) damages your property for whatever reason, they are liable for the repair.
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.
19/11/2010 at 9:41 pm #12244I think it is important to realise the Owners Corporation can only insure the common property, which does not include paint, carpet, wall mounted TV's, pictures, internal walls, furniture etc. It follows then that if the OC can’t insure contents it would open the OC to unlimited liability because owners do not need permission to change the contents in their lot. For example they can do anything they like to the internal walls so long as they don’t damage the common property.
If a water pipe burst within the common property of a lot and destroyed all or most of the items in that lot or any other lot (including the paint) potentially the OC, according to the advice you received from the strata lawyers, would open the owners collectively to an unlimited claim because there is no practical way the OC would know what was their risk – i.e. what was in the lot; for example the lot could have had an very expensive paint finish or even an artwork painted on the wall. Would the OC be obliged to replace this, even though the leak was an accident. I would suggest no and they would only be liable (possibly) if the OC it were negligent i.e. knew about the leaking pipe and did not repair in a reasonable time.
I think this is were the Act is quite elegant in some respect (although it does have many deficiencies) because it has, under section 62, removed protection from the OC if it does not maintain the common property e.g. does nothing to fix a problem once it becomes aware. Severe penalties, quite rightly apply to the OC that sits on problems hoping they go away. But an OC doesn’t sit on a bust pipe – this is part of modern living and these things happen without warning.
I know this is a difficult concept for some who think that if they have property ruined by someone else or some external event through no fault of their own why should they have to pay for its repair or replacement. But I reiterate that is what insurance is all about. All owners should have contents insurance and the issue of repainting would not be a problem if you are insured.
I would also suggest that even if my personal property was destroyed by a negligent OC I would still claim under my contents insurance and leave to my insurance company to decide if they will pursue the OC for recovery of the cost of repair.
The lessons –
- Individual owners and tenants cannot rely on building insurance alone, they should have contents insurance,
- Owners Corporations must react as quickly as possible to repair common property once being made aware of a problem and
- You cannot reasonably expose an OC to an unlimited claims against which it cannot insure because that would be in no individual owners interest.
19/11/2010 at 10:39 pm #12245There is no question of unlimited liability for this matter and I'm afraid that's a spurious argument. The simple answer is that the Owners Corporation should be insured for most eventualities and the owners' personal home and contents insurance would kick in where the OC's insurance stopped.
I can think of no other area of modern life where we are expected to pay for someone else's mistakes or accidents. You run you car into mine “by accident” your insurer pays, not mine. If you're not insured, my insurance will pay but I will still be chasing you for the excess. And by the way, I think you'll find strata law says quite clearly that there is no limit to Owners' Corporations' liability in anything to do with their strata plan – that's why strata insurance exists.
To get back to this question, basically you are saying that if strata owned pipes burst and take down my freshly painted ceiling, the OC will pay for the ceiling to be replaced but I have to pay for it to be repainted, and for my carpet and furniture to be replaced, even if that blows my no-claims discount or increases my insurance premiums. Where in the Strata Act does it says individual owners have to pay for the mistakes, negligence or accidents of the Owners Corporation.
Even if I had insurance I wouldn't expect it to cover other people's accidents – just mine. If the guy next door floods me out, he pays (or his insurance does). The OC is no different.
I am happy to be corrected on this if someone can quote me one item of strata law that clearly contradicts me. But my advice is that this has been just a matter of (bad) practice in some blocks where ECs have bullied owners into thinking they have to pay for repairs when the liability is clearly theirs.
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.
31/12/2010 at 3:22 pm #12320AnonymousAt the end of the day – common law rides above all this – if you break it you pay to fix it. The OC caused the damage, they have to fix it.
Wim
11/03/2011 at 11:16 am #12542Anonymousjaybee said:
JimmyT said:
This is the oldest trick in the book. Yes, you are responsible for the paint in your home but, more to the point, the Owners Corporation is responsible for the damage to your property caused in the repair of common property. Send them a bill.
Unless specified otherwise, Common Property is the responsibility of the OC. Apart from the fact that the damage was the OC responsibility, if the wall is CP, the OC is responsible for the wall. Paint is part of the wall. I can't find anywhere that says that paint on the internal surfaces of CP is excluded, although it seems to be generally accepted that you own “from the paint in”. It seems ridiculous, but could it be that the OC is responsible for repainting the internal surfaces of CP walls, ceilings etc, or that special by-laws should be required to allow for the lot owners to do so?
12/03/2011 at 1:35 pm #12548Paint is not part of common property and neither would you want it to be. If it was, the OC could come around and tell you what colour to paint your walls and who should do the painting. The outside of doors and external walls that look on to common and public areas are differnet but apart from areas that may form part of the waterproof seal (in bathrooms, for instance) the paint is all yours.
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.
14/03/2011 at 10:42 am #12554AnonymousFrom the Act:
S42(5) Damage to common property
(1) An owner or occupier of a lot must not mark, paint, drive nails or screws or the like into, or otherwise damage or deface, any structure that forms part of the common property without the approval in writing of the owners corporation.
This explicitly includes paint, but does not differentiate between CP that is with a lot, and other CP. Surely all CP within a lot, with the exception of pipes, electrical cables or other items which affect other lots or the integrity of the building, should be exempt.
If it is accepted that you can paint the internal surfaces of your CP walls, then why not allow any alteration to internal CP, that does not affect others lots or the CP as a whole? The Act requires amendment.
14/03/2011 at 11:00 am #12555As far as I can tell that is one ot the Schedule 1 “model” by-laws. It doesn't apply to all buildings and may not apply to yours. Owners Corporations are at liberty to remove or alter that bylaw if they so desire to suit the realities of their circumstances. It's really an internal issue in each individual building.
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.
22/03/2011 at 3:39 pm #12585AnonymousThe Owners Corporation Insurance does not necessarily 'care' about the Strata Schemes Management Act and what is common property and what is not.
Most Strata Insurance covers the building.
The initial damage should be handled as a Strata Insurance calim in the first instance. If there is a component of the damage that is not covered by the Strata Insurance or is covered by the lot owners home contents cover they will sort it out. If there is any other damage not covered by the above – the Owners Corporation pays for that damage caused.
As Jimmy states the ultimate obligation is to repair and maintain the common property and this issue albeit unknow to the owners corporation is there cost to repair (hence why they have insurance).
There was a recent legal case on this very issue.
Murray Cameron
Strata Real Estate Service
1300 997 905
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