Spalling causes damage to wooden flooring with under heating - who pays? | Hard floors and tough decisions | Flat Chat Forum: Your Questions Answered




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Spalling causes damage to wooden flooring with under heating - who pays?
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Floyd0
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09/04/2016 - 4:48 pm
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A Neighbour has wooden flooring throughout unit with under heating system. We recently received a building report and there are several sections of the building that requires remedial works. The Neighbour states he has complained about this over several years but has been reluctant to work with the OC & strata manager due to his type of flooring?

The Neighbour has two sections of his wooden flooring that has rotted due to spalling and is claiming that the owners corporation must pay to replace his flooring post spalling remedial works? Other neighbours who have experienced similar spalling breaches have had the spalling dealt with through the strata manager and have replaced their flooring type either through insurance or personally.

Can you provide insight as to the above and where in the Strata Act there are rulings as to the defined OC & lot responsibility? 

Thank you

Floyd0

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Whale
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10/04/2016 - 10:31 am
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Floyd - the NSW Strata Schemes Management Act (SCMA) is not that specific, but as a matter of principle the Owners Corporation (O/C) is responsible for the maintenance and repair of its common property, and owners are responsible for that activity within their lots.

However in the circumstances that you describe, there are a couple of complications (at least) including whether or not the lot owner concerned sought the prior consent of the Executive Committee (E/C) to replace the "as constructed" floor coverings with a wooden floor, and if so, whether the O/C then resolved to put a special by-law in place to among other things state who is responsible for the ongoing maintenance and repair of that type of flooring, and to what extent the current degree of water damage to the owner's flooring arose from their reluctance to "work with" the O/C to address the spalling problem.

On the assumption that you're in NSW, that there was no prior consent, and that there's no applicable by-law or special by-law in place, then the usual interpretation of the SCMA is that the O/C must do whatever is necessary to repair the spalling (common property), and the convention is that it must also rectify any damage that's consequentially and unavoidably caused to the lot owner's property.

If as your post suggests the lot owner's prevarication has worsened the damage to their flooring, then to both adopt a consistent approach (to that taken with other owners) and to limit expense to the O/C consequential to its necessary repairs, its E/C should in my opinion resolve to require the lot owner to at their cost provide clear access for the O/C's contractors to attend to the spalling repairs on its common property by removing all necessary section/s of their wooden flooring.

The O/C could leave the subsequent replacement of those sections of wooden flooring to the lot owner's discretion, although others may suggest that if the entirety of that flooring was originally installed without the prior written consent of the E/C, then the lot owner could be required to restore the floor covering to the type that existed at the time of the building's completion, but in my opinion that would be excessive given that other owners have, presumably with the E/C's knowledge, installed similar flooring.

  • As an aside, problems arising from owners' installation of wooden or laminated flooring post completion of buildings are such that this Forum has a topic dedicated to discussing those, and the upcoming NSW Legislation will specifically remove such works from Executive Committees' delegations, and instead require approval only by the O/C at a General Meeting.
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Floyd0
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10/04/2016 - 6:23 pm
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Thank you.

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Hutchinson
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17/04/2016 - 3:26 pm
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The discussion to date appears to have been around a floor that was installed, with or without permission, that is a fixed floor. It sounds like a fixed floor if it has underfloor heating. If it was installed with permission, then in the absence of a by law holding the owner responsible for its maintenance, it would be owners corp responsibility. If without permission, it is hard to see why the OC would have any liability at all.

Things change if it is a floating floor; floating floors are not part of common property. They are lot owner's responsibility, but may be covered by the OC's Building Policy under Owner Fittings. If the damage is not claimable under the OC's Owner Fittings Policy, then it is hard to see why the OC should have any liability, in the absence of negligence as opposed to building failure.

Now of course if the floor has to be  torn up to fix the spalling, then whatever is torn up would have to be replaced at OC's expense - but only if the floor  had been installed with OC permission, where permission is required.

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JimmyT
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17/04/2016 - 3:42 pm
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Hutchinson said
If it was installed with permission, then in the absence of a by law holding the owner responsible for its maintenance, it would be owners corp responsibility. If without permission, it is hard to see why the OC would have any liability at all.

This is true unless the property has been sold by the person who installed the flooring, in which case, in the absence of a by-law, responsibility reverts to the Owners Corp.

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pmo
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19/04/2016 - 8:34 pm
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If the floor belongs to the owner then the owners corporation is responsible for any damage caused to the floor by the spalling repair regardless of whether it is a fixed or a floating floor and regardless of whether it was installed with or without permission, by virtue of s.65(6) of the Act, which states:

(6) 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.

There is no penalty under the Act for failing to obtain permission to install a wooden floor and NCAT does not have the power per se to order its removal. If the floor is resulting in a nuisance or a breach of a noise by-law then NCAT can issue an order that the noise be prevented (eg. by putting carpet over the top) but it has no power to order the removal of the floor if it is wholly within the lot.

NCAT also has no power to override s.65(6) of the Act. If the lot or its contents are damaged the owners corporation is liable for the damage. If the owner had an illegal machine gun stored under the floor and it was damaged during the repairs the owners corporation would be liable for the damage as it is lot property. The fact that the goods may be illegal or may have been installed without permission is irrelevant for the purposes of s.65(6).

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JimmyT
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20/04/2016 - 12:22 am
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pmo said
If the floor belongs to the owner then the owners corporation is responsible for any damage caused to the floor by the spalling repair regardless of whether it is a fixed or a floating floor and regardless of whether it was installed with or without permission, by virtue of s.65(6) of the Act

That section goes on to say the Owners Corp is not liable for damage cause if it is a result of them being hindered.  Isn't laying down a floor that shouldn't be there "hindering"?

I don't know the definitive answer to that but this is exactly the kind of thing an NCAT adjudicator could have a brain snap about and go either way.

My opinion? If the flooring is there without permission, the owners corp is not liable if it gets damaged during essential repairs because it shouldn't be there.

There is no penalty under the Act for failing to obtain permission to install a wooden floor ...

There aren't many penalties for anything under the Act - but it and most by-laws say owners can't change common property without prior notice and permission.

If the owner had an illegal machine gun stored under the floor and it was damaged during the repairs the owners corporation would be liable for the damage as it is lot property.

They wouldn't be liable if the machine gun was in the way, preventing them from doing the work, and the owner refused to move it. 

The fact that the goods may be illegal or may have been installed without permission is irrelevant for the purposes of s.65(6).

Not true.  In my opinion, if the floor was installed without permission and is hindering the work, then that's tough on the owner.  If the floor was installed with permission, then removing and repairing or replacing it would be part of the work. 

I may be wrong but I don't think so.  If you can cite one case where your scenario has been definitively proved correct and I will run it here.  Otherwise, it's your opinion versus ours and I refuse to take up any more space debating hypotheticals.

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