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Topic
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Hello,
I have an issue with my Owners Corporation about exactly what is and isn’t included in Common Property.
To my mind and my knowledge when I examine the Plan of Subdivision it is very simple and straight forward, yet the OC Committee seem to have a different view.
Is there some way of getting an expert interpretation that is binding and becomes set forever?
I am in Victoria.
The Back story – I have had leaking into my apartment since buying the unit new. At various stages it appeared that it was fixed but then another rain storm would come and there would be a leak. The original Body Corporate looked after most of the bills and it was never an issue except when there was another leak. We have a new Owners Cooperation Manager and since taking over they have denied any responsibility for the leaks or the deck.
The Leaks come from the roof area. The complication is there is a roof top deck area that is obviously above the roof. The Plan of subdivision seems to clearly indicate that anything above and including the roof line on the plan is common property. The Committee disagrees. It is pretty clear on the plan.
The issue is the Owners Cooperation Committee have insisted the leaks are my issue and that until I prove that it is not the deck causing the leaks they are not interested. My view is the deck is clearly part of common property in the Plan of subdivision and it is all the Owners Corporation responsibility.
To move things along and detect the actual leak/s location/s, I have pulled the deck up at my own cost only to reveal that both detected leaks are Owners Corporation issues. One is a crack in an external wall and one is from a gutter that overflows due to design shortcomings and becoming blocked. There are also design issues with the original deck construction and the flashing for the roof is not any where near standard.
1. Who will pay for pulling the deck up and replacing the deck? It is in my opinion Common Property as per the Plan of Subdivision.
2. How do I enforce the obvious Plan of Subdivision common property areas with the Committee.
The Owners Corporation Manager claims to be following the Owners Corporation Committee on this, I have pointed out the previous manager looked after the leaks. The current manager just quotes the committee at me and they have not really been very helpful.
Is there a quick easy solution or are we getting into lawyers a VCAT etc
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Replies
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For a small expense on your part it is probably best for you to take this to VCAT. Unfortunately some OCs would rather stonewall when it comes to compensating owners and admitting to maintenance and repair responsibilities.
It is difficult for us to fully assist you without seeing your plans and defects.
With regard to the strata manager – the strata manager is obligated under the Act to take direction from the OC committee and the OC.
I have been in a similar situation (in Victoria) several times.
Plans of Subdivision, while often straight forward, can sometimes need expert interpretation to clarify boundary responsibilities.
In Victoria, it can be more complicated than other states because although the OC remains responsible for common property, which can include deck, terrace and balcony structures, the lot owner can be responsible for the surfaces of those structures in lot airspace. And that includes tiles and waterproof membranes.
Our legal interpretations have cost a few $100 each. And we were given quotes before agreeing to pay for them.
If you pay for a legal interpretation that supports your view, that the matters are an OC responsibility, it will be a very strong message to the OC committee. It might be worth investing in one before you go down the VCAT path.
Hi,
1)In regards to your leaking water issue if this is coming from the common wall of the property, this is a body cop issue. They may use the strata insurer to recover cost of repair.
2) You would require copy of strata building plans lodged with local council for development application of the lot. Possible mediation with the owners corporation to resolve the issue.
Kind regards Dig
@Digby said:
Hi,1)In regards to your leaking water issue if this is coming from the common wall of the property, this is a body cop issue. They may use the strata insurer to recover cost of repair.
2) You would require copy of strata building plans lodged with local council for development application of the lot. Possible mediation with the owners corporation to resolve the issue.
Unfortunately, in the OP’s Victoria, it’s not always the case.
Here are a couple of links about it:
https://www.bcssm.com.au/files/pdf/Committee_Updates_VIC/BCS_VIC_Common_property.pdf
We have had the legal opinions mentioned in the second link and I can tell you the strata lawyers’ “preferred opinion” was that tiles and any waterproof membrane of a lot balcony or terrace (when boundaries are declared INTERIOR FACE on the Plan of Subdivision) was an owner responsibility. It’s the same with lot bathrooms and laundries. Other legal opinions might vary.
In Victoria, strata Plans of Subdivision are actually available, on-line, from Landata:
https://www.landata.vic.gov.au/
In my experience, strata insurance does not cover building defects themselves. It might however cover the subsequent damage caused by that defect. Building warranties might still apply depending on the age of the building.
@Elmer said:
Is there a good way to find a legal company who can give me an opinion?
Most specialist strata firms will give you a rough idea of your chances of success and the probable cost buy they might not provide legal advice per se.
Our sponsors Sachs Gerace Broome will either do that or point you in the direction of a good strata lawyer in Victoria.
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.
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