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  • #8886

    We have found several balconies in our building have stress fractures in the concrete and leak water to the balconies below in rain.  Some of the balconies have been tiled by either past or present owners and some have not.  We have had advice and quotes from concrete experts who advise that tiling the balconies has not contributed to the stress fractures occuring, but to correct the situation the tiles will have to be taken up, water proof membranes put down and then new tiles relaid.  This of course will be fairly expensive.  The balconies with fractures that have not been tiled will of course be much cheaper to waterproof.

    My question is:   The waterproofing part of the work is purely the BC’s responsibility but whose responsibility is it to pay for taking up and relaying the tiles? 

Viewing 9 replies - 1 through 9 (of 9 total)
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  • #18755
    kiwipaul
    Flatchatter

      It doesn’t matter if the tiles are original or an improvement by the lot owners if you have to rip up the tiles to fix the waterproof membrane it is OC responsibility to restore the balcony tiles after the repair was done.

      HOWEVER if the tiles were fitted without a SR and an appropriate bylaw you might be able to avoid the cost of replacing the tiles (except for those that do have an appropriate SR and bylaw). You then come to the problem of who fitted the tiles the current owner or previous owner.

      Their are a couple of discussions raging at the mo on this subject.

       

      #18772
      Whale
      Flatchatter

        I assume by your alias that you’re in NSW, in which case KP’s absolutely correct.

        If there IS a Special By-Law (SBL) in place covering the installation of tiles by Owners, then it will almost certainly contain something about who’s responsible for on-going maintenance, replacement, and repairs of those; usually the individual Lot Owners.

        IF on the other hand there’s no SBL in place, then all that your Owners Corporation is legally required to do is make the repairs to the surface of the balconies and to return those to their original state; that is without tiles.

        I imagine that will likely cause some angst amongst those Owners whose balconies are tiled and please those whose balconies aren’t, but when the dust settles, your O/C needs to make a decision about how it pleases the majority.

        Whatever the decision, before any further tiling is done at whoever’s expense your O/C needs to place an Item on the Agenda for its next General Meeting to “Specially Resolve” (where ≥75% of those in attendance need to vote in favour) to create a Register a SBL to enable Owners to, at their discretion, tile their balconies.

        That SBL should include a statement about who’s then responsible for the on-going maintenance etc, and in my opinion conditions about tile materials (e.g. non-slip), consistency of colour/s, and size etc – particularly if balconies are visible from the streetscape or from other units.

        #18778
        kiwipaul
        Flatchatter

          @Whale said:

          If there IS a Special By-Law (SBL) in place covering the installation of tiles by Owners, then it will almost certainly contain something about who’s responsible for on-going maintenance, replacement, and repairs of those; usually the individual Lot Owners.

          IF their is a special bylaw in place I believe it is the OC responsibility to cover the cost of replacing the tiles because the replacement is required due the the waterproof membrane leaking not the failure of the tiles themselves.

          The lot owners who registered the bylaw should not be forced to carry the cost of relaying their tiles when the problem is purely an OC problem and to fix it requires removing tiles that the lot owner paid for.

           

          #18780
          Whale
          Flatchatter

            The situation as I understand it is that there’s currently no waterproof membrane in place, and who’s to say that if the Owners who tiled their balconies had properly sought the O/C’s consent beforehand, that one of its conditions may have been the installation of such a membrane, thereby avoiding the current problem altogether?

            My advice was with regard to how I see the legal position, not the one that waverton’s O/C may expediently need to take in an effort to please the majority of Owners, simply because some of those were unaware of, or simply chose not to follow the rules!

            Fortunately for those Owners, it’s not my call! 

            #19285
            handyandy
            Flatchatter

              Once you take on the job of water proofing then you will have to cover the material used to achieve the waterproofing.

               

              The majority of waterproofing materials for a  membrane that need to be covered to ensure longevity of the product. They are generally tiled over thus it tend to be a mute subject as the tiling should naturally follow.

               

              There are waterproofing materials that get adsorb into the concrete but these will potentially not seal cracks or crazing and would also need to be reapplied frequently as they will not wear well.

              As all balconies should be treated in the same manner as they would have been built with the same fault a whole of OC attitude could be adopted with all balconies to be upgraded. As such it will be each owner who ends up paying for their own balcony.

               

               

               

              #19288
              Jimmy-T
              Keymaster

                Just to bring some clarity to this discussion (if I can), and bearing in mind that I am not a strata lawyer, this is my personal opinion.

                Fixing the balconies is an Owners Corp responsibility.

                Fixing or replacing tiles damaged in the course of any common property repairs is Owners Corp responsibility.

                If the tiles were changed with OC approval via a special resolution by-law (SBL) – the Owners Corp would be responsible for like-for-like replacement. They have damaged someone else’s or their own property in the course of their repairs so they are required to fix this.

                FYI: Under  the strata Act relating to special resolution by-laws, ongoing responsibility MUST be attributed to someone and the default position is  the Owners Corp UNLESS it is attributed to someone else.  Smart OCs attribute responsibility to the renovator as one of the conditions of approving changes to common property.

                If the tiles were replaced without an SBL,  then the Owners Corp is only required to replace the ORIGINAL (probably cheap) tiles, not the fancy new tiles that may have been installed without permission.  

                Smart OCs and owners would negotiate a mutually agreeable formula with owners who have unapproved expensive tiling whereby the lot owner would pay the excess over the cost of the replacement cheap tiles and the OC would pay the rest – in exchange for agreement of a catch-all SBL to make all previously unapproved tiling the lot owners’ responsibility henceforth.

                 

                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.
                #19293
                Kangaroo
                Flatchatter

                  @JimmyT said:
                  Smart OCs and owners would negotiate a mutually agreeable formula with owners who have unapproved expensive tiling whereby the lot owner would pay the excess over the cost of the replacement cheap tiles and the OC would pay the rest – in exchange for agreement of a catch-all SBL to make all previously unapproved tiling the lot owners’ responsibility henceforth.

                  Wouldn’t smart OCs never ever approve lot owner’s additions/alterations to CP?

                  Then all additions/alterations would be unapproved and the lot owner’s responsibility.

                  You wouldn’t need a big long register of SBLs.

                  And the OC may even be able to charge the lot owner for removal of unapproved tiles stuck onto CP when they have to get at the waterproof membrane.

                  Under what circumstances would an OC ever want to agree to being responsible for a lot owner’s changes to CP?

                  Where in the Act does it say that unapproved additions/alterations to CP suddenly change status and become CP when the lot changes ownership?

                  Caveat emptor, I say.

                  Also, lot owners should be careful tiling balconies for the first time, or re-tiling over existing tiles, as this alters the effective height of the balcony rail, and may therefore breach building standards.

                   

                  #19295
                  Jimmy-T
                  Keymaster


                    @Kangaroo
                    said:
                    Wouldn’t smart OCs never ever approve lot owner’s additions/alterations to CP?

                    Not very smart to prevent owners from upgrading their apartments or townhouses – just watch the values of properties in the building slide as it becomes known that basic common property related issues like kitchen and bathroom renovations are verboten.

                    Then all additions/alterations would be unapproved and the lot owner’s responsibility.

                    Only until the lot owner sold, and then they would become the Owners Corp’s responsibility (and they would have had no control over the work that had been done).

                    You wouldn’t need a big long register of SBLs.

                    No, but you would want a frequent flyer discount at the CTTT with the number of of “who’s responsible for what?” cases.

                    And the OC may even be able to charge the lot owner for removal of unapproved tiles stuck onto CP when they have to get at the waterproof membrane.

                    See above comment re frequency of trips to the CTTT.

                    Under what circumstances would an OC ever want to agree to being responsible for a lot owner’s changes to CP?

                    None that i can think of – but that is the default position of the Act in relation to Special Resolution By-laws. That’s why you have a Special Resolution By-law that transfers responsibility to the lot owner.  No by-law,  no renovations: it’s really that simple.

                    Where in the Act does it say that unapproved additions/alterations to CP suddenly change status and become CP when the lot changes ownership?

                    It’s not spelled out in the Act but the Owners Corporation is responsible for Common Property without limitation.  According to case law, that means if Joe Blow buys an apartment in good faith and the Owners Corp has failed in its duty to manage its property (by allowing the previous owner to do what they wanted without taking legal responsibility for it) then responsibility falls back on the OC

                    Theoretically they could pursue the previous owner through a civil action (not strata law) but the slim chances of success in terms of the cost of taking the action being substantially less than what they might gain make this an unlikely option.  Costs awarded by courts never cover the actual costs of a legal action and rarely if ever take into account the hassles and stress caused to individual EC members (for instance).

                    That’s why when you are selling an apartment these days you will probably be asked to sign a waiver saying you have not undertaken any unapproved changes to common property

                    Also, lot owners should be careful tiling balconies for the first time, or re-tiling over existing tiles, as this alters the effective height of the balcony rail, and may therefore breach building standards.

                    True.  However, many modern building have a ‘hob’ at the base of the balustrade that takes the effective height well above the legal minimum.

                    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.
                    #19298
                    Kangaroo
                    Flatchatter

                      For Waverton, might I suggest a compromise to avoid the legal arguments.

                      The OC could resolve to waterproof every unit’s balcony and then lay identical tiles on each balcony, in which case they would be common property, and every owner is effectively paying for their own tiles, and the appearance is consistent.

                      The only added cost is removing old tiles from the “some” balconies which have already been tiled, which would be a minor part of the total cost, and could be paid by the OC.

                      But, I have to ask, if it’s raining on everyone’s balcony, does it really matter if the lower ones get a little more water than the upper ones? Is there a problem when it’s not raining?

                      For everyone else, let me continue the generic debate.

                      JimmyT said 
                      No by-law,  no renovations: it’s really that simple.

                      I don’t think it is that simple. If an owner asks for approval, that principle can be applied. The trouble these days is that many owners undertake additions/alterations (or renovations) without seeking approval. Either through ignorance, or more often through refusal to concede that there actually is a higher authority than themselves, or because of the “forgiveness is easier to get than permission” principle. There are various classes of such renovations.

                      1) The silent renovations that nobody knows about, such as extending the one and only TV outlet to every room by laying cable under the carpet, and then the new owner/tenant complains to the SM that one of their “extra” outlets doesn’t work, and the SM gets it fixed at OC expense. Even laying tiles on balconies can come into this category if the edge tiles are cut off-site.

                      2) The one-day renovations. The EC members go off to work, and when they get home they notice a new split-system air-conditioner compressor bolted down on someone’s balcony. It’s in exactly the place the OC would have specified if they’d been asked. What’s the chance of the OC getting that owner to pay for drafting and registering a retrospective SBL which is only going to make him responsible for ongoing maintenance. And what’s the chance that the CTTT would deny an owner his creature comforts and order it removed when the OC admits it’s in the right place but it’s just a “matter of principle”.

                      3) The audible long-running renovations, such as bathroom and kitchen renovations, which were notified and approved, but the scope gets “extended”. The owner forgetfully leaves his door open one day, and an EC member notices that a floating wooden floor is being installed as well. The EC member tells the owner that approval wasn’t granted for that, and is told to “rack off”. There are no “stop work” orders available, and the CTTT probably wouldn’t order it removed until it proves “too noisy”.

                      What I was trying to suggest was that instead of having different processes for approved renovations and the myriad of unapproved renovations, one single process of never ever approving additions/alterations might work if you had just one By-Law that unapproved renovations were the responsibility of the (current) owner, as long as the OC also had plans or photos of the lots “as originally built”. That would not make renovations “verboten”.

                      @JimmyT also said:

                      That’s why when you are selling an apartment these days you will probably be asked to sign a waiver saying you have not undertaken any unapproved changes to common property

                      I’m not a lawyer either, but I doubt that an OC could ever be held liable for a waiver (contract) between a vendor and a purchaser when the OC was not a party to the contract.

                      If there is any recourse, it would be by purchaser against vendor.

                      Which raises the question of which legal concept takes precedence: a waiver signed in “good faith” by an ignorant person, or “ignorance of the law is no excuse”.

                      Now if there was a Certificate of Unapproved Modifications required from the OC (after inspection) to be attached to every contract of sale, things might be different.

                      @JimmyT also also said:
                      Only until the lot owner sold, and then they would become the Owners Corp’s responsibility (and they would have had no control over the work that had been done).

                      Using the same reasoning as above, that the OC was not a party to the contract, how can what was an “unapproved modification to CP” suddenly become common property? A contract of sale, to which the OC was not a party, cannot impose a benefit or a liability on a third party, the OC.

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