Water damage to ceiling from unit above? | Common Property | Flat Chat Forum: Your Questions Answered




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Water damage to ceiling from unit above?
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Floyd0
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20/01/2017 - 12:46 pm
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Hi there,

Can you please advise me on how best to resolve the following?

The unit above mine has two bathrooms and over the last 12 months both bathroom membranes above have failed which resulted in damage to my two bathroom ceilings. 

The Strata Committee and Strata Manager have finally had both membranes repaired in the unit above me and I have sent photos of cracked plaster ceilings and stains requesting this to be repaired. The Strata Manager has advised the Chairman that the OC does not have to bear the cost of repairing my ceilings but the OC has paid for the unit above membrane repairs which was the cause of the damage. I understand that the repairs for my ceilings is $500.00

I am really puzzled by the Strata Manager as I understand that the Chairman is supportive that the OC pay for the repairs and has asked the strata manager to do so but the Strata manager has responded that there must be an extraordinary general meeting called to vote on this?

Any advise would be greatly appreciated. 

kind regards

Floyd0

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JimmyT
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20/01/2017 - 2:27 pm
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I'm guessing that the strata manager is relying on section 13 of the "Who's responsible..?" document (below).

However, the point is that the ceiling is common property so it should be fixed. They could argue that they don't have to paint the ceiling ... except, the paint would be damaged in effecting the repair, therefore it should be repainted at their cost,

The strata manager is well off the mark here.  A simple instruction from the strata committee is enough.  Or do they want you to take them to NCAT and have the added expense of a failed case at the tribunal as well as the plaster and paint job.

Failure of common property (the bathroom seals) led to damage to common property (your bathroom ceiling). Clearly the OC has to fix this on both counts.  Your SM needs to go back to strata manager school. 

Section 13

If damage is caused to a lot owner’s property while the owners corporation are effecting a repair, the owners corporation are responsible to fix the damaged property.

However, if the cause of the damage to the owner’s property was not made when the owners corporation were fixing the problem; instead it was caused by the problem itself, then the owners corporation are not responsible to make good the owner’s property unless the owners corporation can be deemed negligent.

E.g.: 1. A burst pipe occurs in a wall and the owners corporation have to knock a hole in the wall to fix it. The owners corporation are responsible to fix the hole and repaint the wall afterwards.

2. A burst pipe occurs in a concrete slab. The owner’s corporation fix the leak, but water stained the ceiling paintwork of the unit below. Here the owners corporation are not responsible to repaint the ceiling because it was not the fixing of the repair that caused the damage.

3. A burst hot water service soaked the magnasite in a unit and the owners corporation had to take up the carpet to dry the magnasite. Once the magnasite had dried, the carpet could not be re-laid because it had shrunk. The owners corporation would be responsible for the carpet because the carpet was damaged because they had to take it up.

4. With example 3, if the magnasite was not damaged, the owners corporation would not be responsible to dry out the carpet or replace it, if it shrunk because the damage to the carpet was not caused when the owners corporation were fixing common property.

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JimmyT
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20/01/2017 - 3:57 pm
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Or are they just racking up Section B fees?  Worth asking how much they would charge for running an EGM.

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Digby
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02/02/2017 - 12:19 pm
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Hi 

If it is a recently constructed strata building this should be covered by the new building warranty insurance from the construction company. 

The surface area between the upper & lower units are responsibility of the OC of the strata scheme. The strata manger agent, only acts under  lawful direction from the OC  executive and advise on some state strata regs. 

There for with evidence you have and quote for repair arrange special meeting with the body corp members seeking the majority approval. Even though this may not been budgeted for from the previous AGM.  The executive may attempt to claim this on the strata insurance.  You have a valid claim form the strata scheme for repair of the damaged ceiling.  Regardless of how the strata scheme pay for this repair. Instruct agent of there request. 

If this fails, commence mediation with DFT, keep written records along with potos of damaged ceiling of all decisions with this matter. 

Kind Regards, 

Digby

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Kbailey
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02/02/2017 - 9:03 pm
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Hi just a variation on a theme _ if there is a leak in the roof as a result of a leaf guard being incorrectly placed resulting in a leak through into the unit and damaging the ceiling and the carpet requiring plaster and painting. Is this the responsibility of the owner to repair and plaster and paint?

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JimmyT
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03/02/2017 - 8:32 am
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It depends who installed the leaf guard.

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Kbailey
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03/02/2017 - 3:29 pm
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Strata maintenance person

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JimmyT
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03/02/2017 - 3:56 pm
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Problem caused by owners corp, then. They have to fix the ceiling anyway because it's common property but they may balk at the paint.

There's a weird quirk in the "who's responsible ..." document that sayd the OC is responsible for repairing lot property when it is damaged while effecting a repair, but not for the damage caused by the failure of common property in the first place.

However, common law says that if something belonging to you damages something belonging to me, then you are liable.

Usually your home and contents insurance will pay for the paint job but if you don't have cover (naughty, naughty) you could take the owners corp to a small claims court and demand payment there.

If there is anyone with an iota of sense on your committee, they will pay up and claim against their insurance.  If their insurance is invalidated because they got someone who wasn't qualified or insured to fit the leaf trap, it's hardly your fault.

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kaindub
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04/02/2017 - 9:07 am
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Jimmy

a small correction to your last comment

If you do not have insurance cover of your own for your lot (usually contents insurance which under strata insurance covers your lot) , then you are considered to be self insured. You would not be able to seek a recovery from the owners corp under this circumstance, though as you point out a claim under common law is possible.

Robert

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bernie
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10/02/2017 - 6:25 pm
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My question is an extension of this.  My Unit in Victoria has damage to the ceiling of the main bedroom as a result of water draining from the open balcony (of another Unit) which is immediately above the bedroom.Every time it rains, water enters the bedroom and has to be collected in buckets.

In NSW I am aware that the OC is responsible for preventing further water entry from an open balcony. The Strata Manager isn't so sure that is true in Victoria.  Is he correct?  

And if he is, what do I need to do to get the balcony above sealed? A Notice to Repair has been issued by the OC to the owner of the unit with the balcony. The owner has ignored this.  Is it the OC's responsibility (or mine) to approach VCAT to obtain approval to enter the unit and have the repairs effected?  

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Lady Penelope
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10/02/2017 - 8:25 pm
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Bernie - In Victoria the Owner of the Lot with the balcony will generally be responsible for the repair of the membrane. See here: http://www.propertyprofessiona.....anes-A.pdf

Being that the membrane repair is not a body corporate repair then I would suggest that it is the Lot owner of the affected Lot who would take the matter to VCAT. See here for a recent case where the affected Lot owner took the matter to VCAT against the unresponsive Lot owner: http://www.austlii.edu.au/cgi-.....orporation

The OC can always provide an input into the argument by outling the procedure that they have undertaken to resolve the dispute. 

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bernie
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13/02/2017 - 12:38 pm
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Thanks StrataGuru.  Very helpful about what the rules are in Victoria.  However, I appear to be snookered.  The owner of the unit above is the builder of the apartment block.  His building company has gone into receivership, and a plan by him to purchase my unit, and others in the apartment block, recently fell through because of lack of finances.  He lost his deposit because of this!

So, if I approach VCAT and hopefully eventually get a court order for the builder to repair the balcony.  If he continues his usual practice over the past few years of not repairing building defects, nothing will happen unless I presumably obtain VCAT approval to introduce a locksmith and the police to allow a tradesman to gain entry and seal the tiles.  My cost since the builder won't pay, and since so many people are after him at present, it would seem that even if he goes bankrupt, I will be low on the list to recover even part of the expense.

Because the balcony is not common property, the current claim with VMIA to fix the extensive building defects won't apply. And the builder/owner of the unit isn't indemnified, hence getting help from that insurance source seems out of the question.

I can't see how my unit insurance will assist since it only covers damage caused within my unit.

Could the OC's insurance be approached to carry out the necessary repairs?

My fear is that as water continues to flow through the ceiling of my unit, it might eventually collapse, thereby causing other issues.

What to do? I am perplexed

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Lady Penelope
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13/02/2017 - 4:28 pm
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Bernie -  If you win your dispute with your upstairs neighbour by using the VCAT process then VCAT will issue an Order for the upstairs neighbour to repair the balcony. Most people obey Orders.

However, if the upstairs neighbour still refuses to repair the balcony then you can take this matter further through the Supreme Court. Although it sounds burdensome for you to have to do this it will probably be the upstairs owner who will pay your costs.

See here for further details on what happens when an Lot owner does not comply with a VCAT Order: 

https://www.vcat.vic.gov.au/steps-to-resolve-your-case/what-to-expect-after-the-final-hearing/enforcing-vcat-orders

I personally can't see how you could obtain any other relief through body corporate insurance etc as this is outside of their jurisdiction.

If I was you I would try the VCAT approach as quickly as possible. The steps to take are outlined in the link above. You could use some ideas from the VCAT case that I linked to in my previous comment to assist in formulating your arguments.

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