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Common property or not.
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butterflyness2006
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13/06/2018 - 2:19 pm
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Trying to work out if a fixed cupboard is Strata’s concern or ours. 

My neighbour and I have a double carport under our 1969 building.  She has one side I have the other. At the back of the wall there is a cupboard that was built and fixed to the wall. 75% of it is on her side 25% mine. The cupboard was there before both of us bought our units and Ive been there more than 13 years. There is nothing on the plans and no by-law regarding it. 

Another neighbours pipes have leaked and destroyed the cupboard so obviously we would like to replace it. But although my insurance company will cover me, my neighbours insurance company have said no as they believe it is strata. 

Strata have said no it’s our responsibility. 

Please help. 

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Jimmy-T
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13/06/2018 - 2:47 pm
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butterflyness2006 said
The cupboard was there before both of us bought our units and Ive been there more than 13 years. There is nothing on the plans and no by-law regarding it. 

if it’s not on the plans and there are no by-laws about the strata scheme taking it over, then it isn’t common property.  Your neighbour should ask the insurer on what basis they have decreed that it is CP.

EDIT NOTE:  It has just been pointed out to me that the above is not strictly correct.  As the cupboard was there before the lot owner purchased it, and there is no by-law regarding its installation, then the OC is responsible for it.  But that just means the could remove the cupboard if they wanted to.  They don’t have to repair it. If the owner wants it repaired than they need to take responsibility for it.

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scotlandx
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13/06/2018 - 6:27 pm
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If the neighbour’s pipes leaked and destroyed the cupboard, then the neighbour is responsible. Unless of course the pipe was a common property pipe, in which case the OC is responsible.

That said – if your insurer will pay they can worry about that.  But your neigbour may wish to mention it.

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Austman
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14/06/2018 - 1:32 pm
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scotlandx said
If the neighbour’s pipes leaked and destroyed the cupboard, then the neighbour is responsible.

Actually they usually aren’t.

In my many dealings with these types of matters and strata insurance claims, the neighbour has to be found legally liable for the leak for any claim against them to be successful.   And that usually requires establishing negligence on their part.

With many plumbing issues, negligence is actually difficult or impossible to establish.  Pipes spontaneously leak or burst.  If someone eg damaged the pipes, they might the liable party but as we know in strata schemes, one lot’s pipes are often in another lot’s airspace (eg in garages), so it’s not always the owner of the pipes who might damage them.

But I agree, it’s best to let the insurance companies work it out.  

It seems to me this would be a building insurance claim and that would be on the OC/BC’s compulsory building insurance  (that covers fixtures, fittings and lot improvements) regardless of if they or the pipes are common property or not. 

Insurance companies tend to know what an OC/BC’s compulsory building insurance actually covers.  And in this case it seems they have concluded that the damaged cupboard is a building fixture, fitting or lot improvement covered by the OC/BC’s compulsory building insurance.

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scotlandx
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16/06/2018 - 6:21 pm
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Austman – you are in Victoria. I also own a property in Victoria, and my experience has been that the law is very different there.

The NSW legislation provides that a lot owner can be awarded damages for loss as a result of the OC’s failure to maintain the common property. You do not have to prove negligence, because the OC’s obligation is a strict liability one.

The strict duty to maintain the common property is an essential element, negligence is irrelevant.

Refer Strata Schemes Management Act section 106(5), and the decision in Shum.

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Austman
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16/06/2018 - 6:56 pm
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scotlandx said
Austman – you are in Victoria. I also own a property in Victoria, and my experience has been that the law is very different there.

The NSW legislation provides that a lot owner can be awarded damages for loss as a result of the OC’s failure to maintain the common property. You do not have to prove negligence, because the OC’s obligation is a strict liability one.

It’s the same in Victoria – that an OC has a absolute duty to repair and maintain common property.

I think the OC would responsible for a lot’s losses if it failed to repair or maintain the common property (if the pipe was actually common property) in a timely manner.

As 106 (5) states, it’s got to be “reasonably foreseeable”.  How a pipe that can spontaneously burst or leak at any time could be considered “reasonably foreseeable” is the problem.

The case you cited was a long term (well over a year) major roof leak.  Not quite the same thing as a spontaneous burst or leaking pipe.  And it was claimed in the case that repairs were not done in a timely manner.  The delay caused the foreseeable loss.

None of my insurers around Australia consider a spontaneous burst or leaking pipe event to be a legal liability on the pipe owner.  Failing to repair it in a timely manner could be another matter.

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butterflyness2006
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11/07/2018 - 3:49 pm
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Thank you everyone for your advice. 

My Insurance company has agreed to cash settle as it is a shared cupboard. It just annoys me as I still have to pay the excess. 

A little concerned about the repair job on the pipes that leaked but that is another story. 

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Jimmy-T
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11/07/2018 - 3:52 pm
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Send the person you believe responsible a bill for the excess.

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Austman
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11/07/2018 - 6:07 pm
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butterflyness2006 said

Strata have said no it’s our responsibility. 

I’d just like to note, and it’s been confirmed to me directly by the strata insurance companies, that you actually don’t need to ask “strata” before making a lot property “fixture or fitting” claim on an OC/BC compulsory building insurance policy.

As a lot owner you can make such a claim directly.  The insurance companies have told me that you have that right but they will of course assess your claim.  Who pays the excess is another question.

It makes some sense because a lot contents insurer can refuse to cover a lot property fixture or fitting because they know the fixture is already covered by an OC/BC compulsory building insurance policy.

So if you eg accidentally damage a kitchen or bathroom fixture, an OC/BC committee or manager can’t really say “we’re not going let you claim it on the OC/BC’s compulsory building insurance”.

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Jimmy-T
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13/07/2018 - 10:08 am
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Austman said
So if you eg accidentally damage a kitchen or bathroom fixture, an OC/BC committee or manager can’t really say “we’re not going let you claim it on the OC/BC’s compulsory building insurance”.  

No, but they can say “we’re not going to help you to claim on OC insurance …” and that would be enough of a discouragement for most owners. 

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Austman
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15/07/2018 - 6:16 pm
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JimmyT said

No, but they can say “we’re not going to help you to claim on OC insurance …” and that would be enough of a discouragement for most owners.   

Indeed. 

Just by pass them if you think you have a legitimate claim.

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