Water damage made unit untenantable.

Hi Whale,

Im not sure I agree with you 100% as ‘damage’ has been caused and the property deemed unihabitable (hopefully by an expert) with the recent McDonough v The Owners Strata Plan No 57504 cas confirming that damage (to personal property, being Lot Property) caused by a failure of common property amounts to a negligent act.

My Strata Lawyer who looked after this case said as much.

Also, why would an insurer pay for an Owners Corp not looking after ‘their’ common property?

Or am I wrong in thinking an OC failing to look after their ‘roof’ is a defined (or expected) event?

Whilst I get what you are saying, being a lot easier than mounting a court case, surely a landlord should not have to double up by arranging insurance for its tenants actions AND those of a dysfunctional or lazy OC?

As you probably know, I have had part of my balcony ‘stolen’ by my OC, surely they are suppose to look after the interests of ALL owners in the spirit of democracy!

Hope my opinion does offend and if love to hear your ideas, as I respect you so much, but as Jimmy said similarly in a former post… If you EC(OC) and not looking after the common property for all (selflessly) then move on and let someone else who wi

My lawyer reckons it’s only a matter of time until the Thoo decision is overturned and it will most like be a case regarding ‘habitability’ that will overturn it… Time will tell!!

Thanks Whale,
I am always learning new things from your posts (always level-headed) and relied on them heavily myself… especially my issue with a neighbour (under EC instruction) using my balcony as a dumping ground!

I suspect like you that the Tenant told the Building Manager (as the OCs servant and agent) prior to ‘kingst’; and in doing so the OC had been made aware before ‘kingst’ started to lose out on rent. Whatever decision his OC made, it failed to rectify the cause of the ‘mould infestation’ being the common property.

This all relies on a sect 62 (3) resolution not being passed by the OC as required. Of course, if a sect 62 (3) resolution was passed and mould did occur, then a claim in negligence could liable the EC if they took it upon themselves to ‘choose’ not to correct the issue.

Hopefully ‘kingst’ will give us some more insight into his dilemma, and if his OC (or EC) are worth their salt, they’ll fix his leaking roof promptly.

Mould (toxic) is far too dangerous to ignore and everyone knows how unhealthy it is to live with!

Thom

Hi kingst,

You need to find out who is at fault first (Builder or OC) prior to requesting “Should the body corporate reimburse me for lost rent?”

Assuming it is common property that’s at fault, your OC (through its servants and agents);

1. Are charged with looking after CP, meaning you cannot fix it yourself and are therefore ‘vulnerable’ in a ‘negligence’ sense;
2. Can seek to have the builder do proper non-makeshift repairs, providing your building is within the applicable warranty periods;
3. Can take the Builder to NCAT; or you your OC (if they won’t act voluntarily) to get it rectified properly – Depending who’s holding things up at this stage;
4. Can make a claim with the Scheme’s insurance policy to pay your Lost Rent and or other Damages / Costs – although I might have read somewhere that you can make a claim directly with the insurer as a member of the OC (whale or anyone?)!

If all else fails, you might need to initiate Court Action to recover costs… and hopefully (for you OC) the Schemes insurer may cover that action.

BTW Hidden mould is very dangerous: until the ‘source’ of water entry is corrected, your property will remain uninhabitable. It would also be unconscionable for you to rent it out to any unsuspecting tenant!

Hope this helps both you and your OC, I wish you the best of luck with it too… especially if you need to rely on NCAT (No-Clue at All Tribunal)!!

Thom