› Flat Chat Strata Forum › Living in strata › Current Page
- This topic has 19 replies, 6 voices, and was last updated 11 years, 8 months ago by .
-
CreatorTopic
-
08/01/2013 at 12:35 pm #8637
Water Woes
On Christmas Day my neighbor noticed water flowing through her ceiling. The water pipes and shutoff valve for our side of the block of four are in her courtyard. Recently the Owners Corporation (she is the Chairperson) fitted another emergency shutoff valve for my unit higher up the external wall adjacent to my juliet balcony or accessible by ladder from her yard.
My neighbor knew I was interstate. During the afternooon she left two text messages and one voice message on my business phone and sent an e-mail hours later advising she would call a locksmith who drilled through my front door lock . Hence the neighbor turned the water off under the kitchen sink. Who is responsible for the locksmith fees?
I checked messages in the evening and immediately contacted a friend who shut off the external lever and mopped up. My neighbor did not use the shutoff valves accessible in her yard because “We have guest here. It’s Christmas” and ” there was thunder and lightning. Much too dangerous to get on a ladder to reach your shutoff lever”. The long delay (7+hours) in taking action caused extensive damage. Now what do I do?
-
CreatorTopic
-
AuthorReplies
-
08/01/2013 at 3:33 pm #17572
I’d assume from what you’ve said is that the leak was from a pipe within your unit and if this pipe only supplies your unit then you are responsible for the repairs to said pipe. Any damage to the structure would be covered by Strata Insurance policy, and your contents policy should cover the contents damaged in yours and your neighbors unit.
If the pipe supplies more than 1 unit then it is OC responsibility to repair and make good repairs via insurance for all the damage both to the contents and structure. (Strata Insurance might object to covering the contents damage so the OC might be liable for this if you don’t want to claim on your contents insurance)
09/01/2013 at 12:00 am #17575What’s missing from this saga is what caused the flooding. If it was water pipes outside the walls – like washing machine hoses – it is probably the owner’s responsibility if it was inside the walls, it’s probably the Owners Corp.
The neighbour has no ‘duty of care’ in this although they could have acted a little more promptly. But I’d say if it’s a common property fault the Owner’s Corp should pick up all the bills but if the fault was with personal property, then it’s the owner’s responsibility, including the cost of the locksmith
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.
09/01/2013 at 6:31 am #17576caj,
You ask “Who is responsible for the locksmith fees?” I would have thought it is the OC. Probably the lock and door are common property anyway but Section65 of the Strata Management Act provides at subsection (6) that:
An owners corporation is liable for any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section unless the damage arose because the owners corporation was obstructed or hindered.
09/01/2013 at 3:38 pm #17581@Cosmo said:
An owners corporation is liable for any damage to a lot … unless the damage arose because the owners corporation was obstructed or hindered.
So is a locked door not an obstruction or hindrance? It’s a matter of interpretation but it doesn’t say the obstruction or hindrance has to be deliberate for this proviso to be effective.
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.
09/01/2013 at 4:32 pm #17584Jimmy,
I think for the purposes of the section ‘hindered or obstructed’ referrs to the actions of a person. If the damage arose as a result of the person’s obstruction or hinderance the OC is not liable. By inference the person who obstructed would be liable.
Reading the Section 65 it says “any damage to a lot or any of its contents caused by or arising out of the carrying out of any work, or the exercise of a power of entry, referred to in this section” (emphasis added). In my view, the section ie section 65 should be read as containing within it any conditions/definitions before going elsewhere.
Subsection (5) says a “A person must not obstruct or hinder an owners corporation in the exercise of its functions under this section” so I would say subsection (6) should be read as saying obstruct or hinder refers to a person obstructing or hindering.
In caj’s case “the damage to his lot … arising out of the carrying out of any work” was the damage done by drilling the locks and NOT by a person hindering or obstructing. Thus the OC is liable.
I am willing to be corrected by any lawyers out there!
09/01/2013 at 9:56 pm #17588Having a lock on a door is not obstruction or hindrance, it’s just normal. Cosmo is right. Re having a non-approved lock – that would be relevant if there were a fire.
My other half left the bath running which resulted in a flood, and water pouring through the downstairs ceiling. The neighbour called the fire brigade who broke the door down, we thought that was fair enough in the circumstances.
The answer to the question lies with the cause of the flood. So what caused the flood? However, the neighbour doesn’t owe you any duty of care.
10/01/2013 at 1:10 am #17590Water Woes.
The water leak came from under my kitchen sink. It seems illogical for my neighbor to let the water flow for 7+ hours after noticing water leaking into her apartment without shutting off the external water lever easily accessible within her yard. This tap would have shut water off to both units. The lever to shut off water exclusively to my unit is also accessible form her yard but with difficulty requiring a ladder and the agility to climb onto a fixed roofed awning or reached with a pole. I would think the neighbor present has the responsibility to minimise damage. By letting water run for hours without any action is inexplicable. Our contents insurance indicates it will not cover damage without applying for special consideration if Strata Insurance didn’t cover.
The locksmith fees amounted to $400.00 I think forced entry into my apartment was not neccessary since there is a valve and lever to stop the water externally that my neighbor being Chairperson should have considered before entry into my apartment to shut the water off at the leaking source.
I do not know the extent of damage in the neighbors apartment. What course of action should I take to get damage accessed and the locksmith’s bill paid? Thank you for all the feedback
10/01/2013 at 2:20 pm #17591caj – there are a lot of “probablies” in the responses that you’ve so far received, and that’s because the answers to a number of the questions raised by you depend upon what (if any) Special By-Laws are in place at your Plan that relate to whether it’s your Owners Corporation (O/C) or Lot Owners who are responsible for the repairs arising from faults of the type that occurred within your Lot.
Illogical is it may be, I agree with those other posters who believe that your neighbour had no obligation to do anything, and probably wouldn’t have if she wasn’t the Chair of your Executive Committee and knew that you were absent. Imagine the extent of the water damage and the cost of repairs if your neighbour had just contacted your Strata Manager’s after-hours service (if any) due to their likely closure during the Christmas period, and a plumber had also been called (out) to turn off a tap!
With regard to the fees and the water damage you need to first check for those Special By-Law/s, but let’s assume that none are in place, in which case my opinion is that as the water damage affected your neighbour’s Lot as well as yours, your O/C is responsible for:
- the costs both directly and indirectly in repairing the cause of the problem – that’s the locksmith’s costs (to access the problem) and the costs to repair it (a leaking pipe?);
- the cost to repair any Common Property areas affected by the problem.
Unfortunately, in my opinion you are responsible for the costs to repair all private property of both you and your downstairs neighbour, and as those may, as your Insurer has suggested, be covered by your Contents Insurance, you will need to confirm that and arrange for quotations in accordance with that Insurer’s advice.
As your O/C has an interest in who undertakes those repairs for which you are responsible as perhaps some may be required to the Common Property at cost of your O/C or may affect those areas, perhaps ask your Strata Manager to recommend some suitable contractors (properly licensed, insured, and who may be familiar with the Plan) to provide quotations on your behalf.
Finally, I’d be having that shut-off tap relocated to a location that’s more readily accessible.
10/01/2013 at 5:42 pm #17597““
I love a good argument
. My view is that, if the lock was non compliant not approved and this caused the damage ie the locks had to be drilled out because the locks were non compliant and not approved, the damage can be directly related to the actions of a person so presumably the OC would have an argument that it was not liable. The more recent the non compliant not approved lock was fitted the stronger the case for the OC not being liable eg if the non compliant not approved lock was fitted shortly before the need to access the unit the OC’s arguement would be stronger than if the non compliant not approved lock was fitted a few years ago. The reason being that the longer ago it was fitted the more chance the OC would of or should of been able to discover it was non compliant not approved (of course in practise we know that the OC would most probably never find out regardless). If the non compliant not approved lock was fitted by a previous owner I would wager that the OC would not have an argument.
11/01/2013 at 4:06 pm #17601Cosmo – Let’s assume that the leak was in a pipe supplying the one Lot, that the pipe was within a wall, and that the leakage was again affecting more than one Lot.
The O/C would be responsible in those circumstances to make the necessary repairs, and in order to do that it employed a plumber who was able to access the Lot (freely), cut a hold in the rendered wall, repaired the leak, and then patched the render. Payment of the plumber’s total fee would in those circumstances be the responsibility of the O/C, as would the painting of the wall (
) .
In caj’s circumstances, substitute the lock for the wall and the remainder of the above scenario applies; doesn’t it?
I’m probably having a bad day, but I don’t follow your compliant / non-compliant / approved / non-approved lock discussion; it’s irrelevant isn’t it – as the O/C had to have it drilled-out in order for it to access and attend to the leak.
Over to you Jimmy.
11/01/2013 at 5:06 pm #17603@caj said:
Water Woes.The water leak came from under my kitchen sink.
The sink is within the lot (assuming it’s the pipe under the sink and in the lots airspace and not in the floor under the sink) it’s NOT common property it’s lot property and so the onus is on the owner to cover the repairs via HIS contents policy and the Strata Building policy. Any excesses the owner himself would have to cover.
I don’t see the chairperson having any liability as it’s not their responsibility. All costs should be covered by insurance or the lot owner whose pipe broke and caused the damage.
11/01/2013 at 6:35 pm #17604Hi Whale, it is getting to sort of a theoritical argument but I guess the distinction is whether a “person” has done anything to “hinder or obstruct” access to rectify the problem. Section 65 of the SSMA 1996 is the relevant section, refer subsection (5)
In the case of a ‘non compliant not approved’ lock a person would done something to ‘hinder or obstruct’ if access couldn’t be gained because of the lock.
In the case of a leak in a wall a ‘person’ probably wouldn’t have been involved, although I am sure one could think of a situation where a person could have been involved eg, by doing something to the wall.
In caj’s orignial post the question was asked “Who is responsible for the locksmith fees?” I was just trying to point out, in response to a hypothetical put by Jimmy, that the legislation provides that in certain circumstances the OC would not be liable. The legislation doesn’t state who would be liable and in practice the result of who is liable would be result of negotiation and available evidence.
12/01/2013 at 9:47 am #17606Apologies for having taken us down the diversion of whether or not a locked door is a hindrance.
The key point here is that the original problem was the responsibility of the original poster, Caj – the pipes were in their lot and not in the wall and therefore personal property and not common property.Therefore any damage resulting from the failed pipe is the lot owner’s responsibility too.
Caj is understandably aggrieved that the neighbour (and chair of the Owners Corp) could have done more to prevent the problem but didn’t.
That’s as a may be but there is no legally defined duty of care implicit in the role of Chair of the EC. The best you can hope for is to remove them from office at your next AGM.
But there are dozens of circumstances where the neighbour simply failed to make a connection between the problem and possible solutions – panic, too much festive cheer, distraction by visitors and combinations thereof are the likely suspects.
The important thing for Caj to do right now is to remember that we and our neighbours are locked into long-term relationships. Lingering resentment over what could and should have been done is going to taint every day of your life for as long as you and your neighbour are sharing the same space.
The sooner you can get over this, the better for everyone – and the sooner you forget who should have done what and when and deal solely with the practicalities of what happened and it’s consequences, the sooner you’ll get over it.
One other thing – burst washing machine hoses are a common cause of flooding in homes. Turn off your taps after each wash and check your connection hoses every couple of years – they are the weak point in the water delivery system and they will fail, sooner or later, if neglected.
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.
12/01/2013 at 12:23 pm #17607Apologies also for pursuing the point about “who’s responsible”, but the line I was taking is in accordance with the NSW Land and Property Information (L&PI) Memo. that, even though it’s only a guideline, suggests that Owners Corporations (O/C) are responsible for locating and fixing the source of any water leakage (only) when that’s affecting Lots in addition to the one from where the leakage emanates and/or the Common Property.
So even though the source of the leakage was within caj’s Lot, it makes sense to me that the O/C would be responsible for stopping it in the circumstances outlined above, and for the costs of doing that, simply because the impacts of the leakage are broader than just caj’s Lot as the source and include property for which the O/C is responsible (e.g common walls & the floor/slab between the Lots).
I agree with other posts that Caj and/or his/her Insurance is responsible for rectifying the damage that the leakage caused within his/her Lot and the one below.
To conclude, I know that both the L&PI Memo and the Guideline issued by Strata Community Australia only applies if O/Cs resolve at a General Meeting to adopt one or the other of them for their Plans, but in the absence of anything better I’ve found that whether adopted or not, a consistently applied approach that combines common sense with a reference to those documents works for me!
(Just thought of something related to the above….can anyone explain why the various guideline documents suggest that problems with the isolator for the electricity supply within a Lot is the Proprietor’s responsibility, and yet problems with the isolator for the water supply to a Lot is the O/C’s responsibility??)
12/06/2013 at 1:09 pm #18662Aaah Yes Water Woes….. the saga continued…. Submissions to Insurance Companies (Strata Insurance and Contents Insurance). In a nutshell, the Chairman request submission of quotes to submit to the Strata Insurance Co.
At the time we had an estimate of repairing the water damaged flooring and scurried around additional floor repair quotes.
Our quotes for repair were not submitted to the Strata Ins for review as part of this claim. The Chairman submitted quotes to repair her damage only
We expected an Assessor would come to inspect the water damage in both apartments. We contacted the Strata Ins Co (by now they were in the final stages of settling the claim) to clarify we are part of this claim for water damage. We were informed an Assessor would nothave inspected the site since the claim was under $3500. Note the claim would be well over that amount if the water damage in our apartment was considered.
As is turns out, our Contents Ins has covered the wooden floating floor and Strata is responsible for the fixed to rendered walls skirting boards. All sorted.
My query is: Is the Chairman responsible to submit all claims for this one incident letting the Strata Ins. Co figure out what they will cover??????
Her damage claim was under the radar (by a couple hundred dollars) for assessment and was settled while we haggled for settling our claim between Strata Ins and Contents Ins.
Mind you Chairman now has a fully renovated bathroom and ? repairs for the water leaking into her guest bedroom from our kitchen sink (flexihose). Considering that the Chairman let the water flow for 7+ hours before taking any action.
Scullbuggery?
-
AuthorReplies
- You must be logged in to reply to this topic.
› Flat Chat Strata Forum › Living in strata › Current Page