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I wonder if you can help me or point me in the right direction. It is quite an unusual case and I am at a loss after almost 2 years of trying to resolve what should be a relatively simple or routine OC matter if only the new manager would do his job.
Our OC manager is stonewalling, not replying to any emails from myself or the insurance company, going back months. We have been very patient. He was appointed in May 2022 after our former manager resigned because of persistently disrespectful behaviour from one of the lot owners who has a bizarre obsession with my floor – he said he has a right to come into my flat and take possession of my floor (!) because he is of the view that the flooring repairs should come under contents insurance instead of building insurance despite the insurer accepting the claim after their investigation/assessment. We have had many plumbers’ and builders’ investigations to try to find the cause of the cupping so severe that it caused the scotia to pop out about 3 months after installation. There are no internal leaks; the loss adjuster concluded after the 4th plumber’s report that there was external water ingress coming from common property and asked that this be rectified before they replace the floor which is under warranty.
This has dragged on for almost two years due to Covid, bullying and blocking from one lot owner and stonewalling from the manager.
This new manager is a real estate agent rather than a strata specialist and appears to be specially picked by said lot owner who made sure he got the four votes needed for a majority. His plan was to get rid of the insurance company (but didn’t succeed) and then sought to get rid of the broker/claims specialist to let the new manager be the gatekeeper (whether he would put through any claims) rather than leave it to the insurance company/claims consultant to do their own investigation and make their own judgement.
The effect of the stonewalling for months means the insurance company is unable to complete the repairs to the floor (under their warranty) in my unit due to maintenance repairs not being carried out on common property (external water ingress). For almost 2 years, I have been living with uneven flooring (trip hazard), a tarp over a big section where planks have been removed, where there are holes/gaps in the floor and sometimes the front door can’t open easily, depending on the weather.
We will be lodging complaints to the strata association and the franchisor because we have exhausted all means to get the manager or the OC to act. The other owners don’t care because it doesn’t affect them directly. I don’t know if the strata association or the franchisor can do anything that will get things moving. The manager’s contract is up for renewal next month but with that one difficult owner controlling the 4 votes for what appears to be his pick for strata manager, it is unlikely the contract will not be renewed even though there is every reason not to renew his contract due to poor performance overall – eg no minutes have been circulated 7 months after the AGM; delays in following up with other building/maintenance issues; unreturned calls; no replies to emails despite reminders going back months and months.
As a last resort we will be taking the OC to the tribunal for their inaction.
Has anyone had this bizarre experience? If you did, what did you do? What are our rights in situations like this?
Thanks.
- This topic was modified 1 year, 5 months ago by .
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A few pertinent questions:
- Is this in NSW?
- How big is the scheme?
- How many resident owners do you have?
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.
I am sorry Eureka to hear of your situation. You have been very patient.
Firstly, there are some key points that you have mentioned that I think all readers would benefit from further clarity around, then we can move to a solution focused approach.
- The strata manager or the OC or the Chairperson can’t prevent lot owners from making a claim on the OC Insurance Policy. You can lodge a claim anytime without reference to either the strata manager or the OC. Provided you know which insurance company holds the policy, which should be disclosed at the AGM every year.
- The choice of Insurer and Insurance Policy that suits the owners is decided usually at the AGM as well. The Policy may or may not include floating floors. Regardless it would not change the outcome in your case because of the Water Act. Next year they may choose to not have a policy that includes floating floors, the OC is still liable for the damage caused. At least if they hold a policy that includes floating floors they are covering that exposure.
- Section 16 of the Water Act sets out that if water flows from one property to another and causes damage, the the person who caused the flow (in your case the OC) is liable to pay damages to that other person (you) in respect of that injury, damage or loss.
- The OC must act to do something about the flow of water and the OC’s liability (financial exposure) is increasing daily. If you were a landlord for instance, you would not be able to rent your property under the minimum rental standards which may lead to a loss of rent claim against the OC as well. Unfortunately as a lot owner you don’t have that same protection unless the lot is uninhabitable. However, if the flow of water is not resolved, mould may become the issue and damages relating to your property and your health may eventuate. The OC may find themselves in a position that insurance renewal is denied. If this occurs, they will find it very hard to get any insurer to take them on and the financial exposure is now exponential.
- If there was a quorum (more than 50% of owners) were present at the 2022 AGM, the minutes are not required to be sent until the Notice of Meeting is sent for the next 2023 AGM, so the strata manager has breached their contract duties – at least for that. If however a quorum was not present, then the minutes must be circulated within 14 days of the meeting – this would be breach of contract.
- Response times are most likely not stated in the Contract of Appointment, so technically there is no breach there either.
- SCA (Vic) can only hear complaints for a breach of their Code of Conduct which can find on their website http://www.vic.strata.community.
Unfortunately in Victoria, we have no help line provided by Consumer Affairs and their website is out of date. VCAT is also struggling with the number of disputes and the delay for hearings are over 12 months. Some possible things for you to explore:
- Contacting the Franchisor is a good idea. They should be interested to manage the brand reputation, which might help with the response times. Google review comments get attention. They may not be able to interfere with your direct case but should be able to seek responses for you.
- Contacting a good plumber or landscaping company to inspect the common property adjacent to your lot, will be helpful. Meeting with one or more of these types of experts will start to provided solutions which may not be very difficult to fix. The solution might be a spoon drain or installing impervious material to curb the flow.
- Lodge a formal complaint under the Owners Corporations Act 2006 – see Consumer Affairs website. You will find the prescribed form that must be used. https://www.consumer.vic.gov.au/housing/owners-corporations/complaint-handling-and-resolving-disputes
- The formal complaint triggers a requirement for the OC to meet and consider the dispute within a specified time frame. If you have done some research as outlined in step 2 above, then a constructive conversation might actually occur. You can have another person attend with you to the mediation if you like.
- I would remind the other owners at this meeting, that it would be cheaper for the OC to get the work done before this matter goes legal. The only winners are the lawyers.
You should in the meantime, explore your legal options and seek a quote for the provision of Legal advice from a specialist OC law specialist practicing in Victoria and perhaps explore some of these options:
- Legal letter of demand seeking the appointment of an appropriate technical expert to determine how water is flowing from common property to your land. A letter from a lawyer may bring about action.
- Legal advice as to the quickest remedy for you – Magistrates Court and Nuisance or VCAT and Water Act or VCAT and seek a Administrator. Should you stay in your unit or move out. All options should be explored.
I hope this information is helpful and that you can resolve the matter quickly.
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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