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Hi Jimmy
Our Strata block has an interesting dilemma that we and the strata manager are drying to resolve. This problem is a water leak from a unit above that has water constantly escaping into a unit below, damaging kitchen cupboards , ceilings , architraves and flooring to that unit below .
The unit owner has denied the Owners Corp and its plumbers permission to enter the unit to trace and rectify the potential leak which could either be a kitchen appliance ( eg dishwasher ) or a pipe .
There is a stalemate whereby the Lot Owner of the potential leak has said not to contact them under any circumstances . The executive committee has made numerous requests in writing and by telephone and by knocking on the owners door and to no avail .The Strata manager has also attempted to make contact also to no avail. Strata Manager has advised that legal advice suggests that this is serious enough to go straight to the Tribunal without Mediation but also advises that this is likely to be a 10 week wait . That would seriously further damage the unit below where the water is leaking into .
If an owner is denying access to resolve an issue this is pretty serious but the lot owners below are the ones suffering with the ensuing damage .
Do you have any suggestions that might to gain access to this unit ? Unit access can only be allowed if there is a genuine emergency which is life threatening.
Also , if access is finally allowed and a plumber traces the water leak and it is deemed to be the Lot owners problem what rights does the Lot owner have below in compensation and repairing the damage that has been caused over the past 2 months and a potential additional 10 +weeks.
If it is deemed to be an Owners Corp responsibility because the leak is identified as a pipe on common property ordinarily the repair bill would be to the Owners Corp. However because of the delay in getting access has been so long that damage has increased substantially surely the Lot owner refusing access bears some if not all the responsibility.
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I wonder what illegal activity is going on in that unit?
Are you sure you can only enter the unit in a life-threatening emergency? In the ACT, where I am, an executive committee representative (in this case it could be a plumber) can enter a unit if the committee has reasonable grounds for suspecting that there is a breach of the Act or these rules in relation to a unit— inspect the unit to investigate the breach (could be a breach of the rules or Act if the leak is caused by a failure to maintain the unit), or carry out any maintenance required under the Act (in this case, to determine whether a leak is caused by a common property pipe – the OC is required to repair and maintain the common property). The committee must give reasonable notice of its intention to enter the unit. It may also enter without notice in an emergency. It does not say it has to be a life-threatening emergency. In any case, you would be giving reasonable notice and seeing as there is on-going significant damage I think you could go ahead (in the ACT at least) after giving one last definite notice of a time. If the unit owner were to get upset, you would have ample evidence of your attempts to gain reasonable cooperation.
Maybe wise to check with a lawyer first but ….. can you turn off the water to that particular apartment?
Advise the Lot owner that it is an emergency as water is damaging other people’s property.
Explain that you will need a plumber to inspect the source of the water leak and repair it before the water can be turned on again.
The Lot owner who is refusing access while the problem gets worse may have to contribute some money for rectification even if it is found that the issue is with common property and should ordinarily be the responsibility of the owners corporation.
The justification would be the owners corporation has suffered an economic loss caused by the negligence of the Lot owner who refused permission to have the pipes inspected and repaired in a timely manner.
The owners corporation could perhaps sue for damages to compensate for their ‘harm’.
Maybe wise to check with a lawyer first but ….. can you turn off the water to that particular apartment?
Brilliant, Lady P. Absolutely brilliant! Except, on reflection, you might end up turning off water to the whole floor, or the building.
As for accessing the property without the owner’s permission, according to Section 122 of the Act, you can do so in an emergency. Not only that, if the owner has refused permission for you to enter (in an emergency) that have to pay for the door to replace the one you just opened with what firies call the “big red key” (a fire axe).
So what constitutes an emergency? Forget damage to property. What about the potential interference with electrical wires and making the whole building “live”. What about structural damage engdangering lives.
All you need is an email from a structural engineer or fire safety officer confirming that immediate action is required and off you go (but take a member of the local constabulary with you if you think there’s something nefarious going on in there).
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.
Apply for an urgent (interim) order for access under section 231, given the circumstances I am pretty sure you will get it.
I doubt the fire brigade would agree to attend. In which case the OC would have to hire their own locksmith to break open the door. In our strata scheme the dominant owner (who is a permanent Committee member, he owns 61%) keeps trying to get keys to all of our homes in case such an emergency happens. In my view this is not justified, a genuine emergency can be dealt with by the fire brigade or locksmith.
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