10/04/2019 at 9:00 am #36926
Hi, our strata block was built in 2004. Recently our Private Lot was water damaged from an obvious water leak coming from and through a Common Property wall (boundary wall) within our unit. We have been told by the Strata Manager that the Owners Corporation is not responsible for the cost to repair the water damage caused to the plaster and paint on our side of this Common Property wall and that this is the Lot Owners responsibilty.
Luckily the leak occured in a tiled laundry and not our living area with carpet, otherwise we would be left with the damaged carpet expense as well. I know these costs would be ours under normal “maintenance” circumstances, but surely if there was damage from a water leak clearly coming from a Common Property wall, any subsequent damaged caused to our Private Lot should be the Owners Corporations responsibility through an appropriate Insurance claim? Any thoughts on this would be much appreciated!
10/04/2019 at 9:26 am #36930
- This topic was modified 2 months, 2 weeks ago by Jimmy-T.
Apparently you can by-pass the Owners Corp completely and approach the strata insurers directly. Give them a call and see what they say.
The “no fault” interpretation of damage cause by a failure of common property is a weird quirk of strata regulations that has bugged me for years. I still think it’s worth pursuing with the insurers or the OC itself – especially if you can show that negligence by the OC contributed to the leak or the damage from it.
However, the government’s “who’s responsible?” document clearly states that the OC is responsible for the damage caused in repairing a leak but not for the damage caused by the leak in the first place.12/04/2019 at 10:04 pm #36965
Same for us… I rang the insurance company direct and they said submit all costs of repair with the plumbers report etc and they’ll assess it. This is exactly what I insisted the Strata Manager do
The insurer covered it… they paid for drying of carpet, floor board repair, cupboard repair, painting etc in 2 affected lots
The Strata Manager is not an insurance assessor so don’t accept their say so.18/04/2019 at 6:50 pm #37098
Many thanks for that. Will do and will let you know how I go!02/05/2019 at 12:08 pm #37278
Just a quick update on the above issue.
Just had a very interesting telephone conversation with our Owners Corporation Insurer. The Insurer said they would have agreed to pay for the cost to repair the damage to our Lot caused by the Common Property leak, except that the repair cost to our Lot is less than the $1,000 Excess on the Policy and the Insurer is therefore unable to accept or process a claim less than this Excess amount.
So, back to square 1, who pays for any excess or claim in this instance and where do I go to from here?
Many thanks!02/05/2019 at 12:14 pm #37281
If this were in the ACT, the situation would be very clear. The strata legislation here requires the OC to ‘fully insure’ the property. The requirement is without qualification about excesses etc. To the extent that it is not possible in practice to be fully insured because all insurance policies have an excess, the OC has to cover the shortfall of a valid claim. If the claim would have been valid except that the amount is less than the excess, then the OC has to cover the cost.
In other states, the legislation might be worded differently and it might be possible for the OC to avoid paying out for claims below the excess.03/05/2019 at 9:30 am #37294
Send the Owners Corp/Strata Manager a bill for the damages, with a reasonable time for them to pay (say, two weeks).
State on the claim letter that the Insurer has said they would have paid for this, but for the excess which should be covered by the owners corp. (If you can get this in writing, even in an email from the insurer, that will strengthen your case).
Tell the strata manager that if they fail to pay within the 14 days, you will be pursuing the matter at the small claims court, where you will also be seeking costs.
You might also point out that, under strata law, they will not be able to charge you for any proportion of those costs incurred.
Regarding the small claims court, here is a very helpful fact sheet from the LawAccess website that explains the whole process.08/05/2019 at 10:03 am #37426
Thank you Sir Humphrey, unfortunately we are located in NSW and not ACT where Legislation sounds a lot more clear than NSW.
However, we have since sent a letter to our Strata Manager similar to that which Jimmy-T suggested and I will keep you updated once we recieve a response.
Many thanks for all your input, it is much appreciated!10/05/2019 at 7:31 am #37503
Just a quick update on the matter of Common Property Water Damage above.
Our Strata Manager, who currently is the Team Leader in a high profile strata company in Sydney, just sent us the following response:-
“Our previous advise is correct, regardless of what the insurer has advised. I have attached the DFT Who is responsible guide, if you go to point 13 on page 7 it will explain were the owners corporation are responsible for paint, and with that, the owners corporation would be responsible if we had to chop out a wall to get to a burst pipe etc, however I the paint is damaged purely from the problem of the water, then it is not the stratas responsibility. Paint has always been considered to be within the airspace of the lot, making it the owners responsibilty.”
Your thoughts on this would be much appreciated. Many thanks!10/05/2019 at 8:21 am #37506
Apart from misspelling “advice”, the strata manager’s response is correct. However, this is a bone of contention in many strata schemes and there are two things to remember.
1. The “who’s responsible …” memorandum is a guideline – it’s neither law nor a regulation unless it is adopted by the owners corporation in a by-law. It may, however, be reference in a claim.
2. Some insurers will pay out on claims made directly to them by the lot owner.
The strata manager is not wrong … but the memorandum may well be flawed. If the brakes on my car fail and it rolls over your garden gnomes, who is responsible? It’s an unforseeable accident but it’s my car and therefore my responsibility.
This is one of those grey areas between common law and strata law, and the latter is far from definitive.12/05/2019 at 11:46 pm #37599
Thanks Jimmy – T.
I really appreciate your input and I haven’t given up yet and will pursue this matter
I just came accross this interesting acticle published by JS MUELLER & CO LAWERS FORUM 31.07.18 Which states in part;
The law changed on 30 November 2016 when the Strata Schemes Management Act 2015 finally commenced operation. The new Act introduced a new section 106 which provides to the effect that a lot owner can now recover damages from an owners corporation for losses suffered by the lot owner caused by the owners corporation’s breach of section 106.
The relevant parts of section 106 in the new Act are:
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(5) An owner of a lot in a strata scheme may recover from the owners corporation, as damages for breach of statutory duty, any reasonably foreseeable loss suffered by the owner as a result of a contravention of this section by the owners corporation.
(6) An owner may not bring an action under this section for breach of a statutory duty more than 2 years after the owner first becomes aware of the loss.
Section 106(1) and (2) simply re-state the law that was set out in section 62(1) and (2) of the old Act. Section 106(5) and (6) are new law.
Section 106(5) creates the new cause of action (or right to recover damages) for breach of the statutory duty in section 106.
From my understanding of the above changes in this new legislation, I may be able to recover my cost for repairs for the water damage caused to my Lot by the failure to properly maintain Common Property through NCAT by way of an Order made against the Owners Corporation.
Do you or other Forum members have any thoughts or recommendation on this?
12/05/2019 at 11:57 pm #37602
- This reply was modified 1 month, 2 weeks ago by Jimmy-T.
It’s possible, but the onus would be on you to prove that a “reasonably foreseeable loss” had been suffered because the Owners Corp had failed to maintain and repair common property.
For instance, if you tell the OC that the corner of your ceiling is sagging and they do nothing, and then it caves in and destroys your TV, you could probably claim. Similarly, if you had reported a wet patch on your wall and they had done nothing, then a large amount of water burst through and flooded your flat, you could probably claim on that too.
But a pipe that bursts without warning, inside a wall where it can’t be seen … is that foreseeable?14/05/2019 at 6:37 pm #37628
I see what you mean Jimmy – T and I see what you mean.
Unfortunately, or fortunately (depending how you look at it), our water damage didn’t appear to come from a burst pipe although we can’t be sure, because the Strata Manager never looked into it any further, other than to say to our Rental Managing Agent “if its not dripping its not the OC`s problem” and that we, the Lot Owner, is responsible to pay for any investigation and water damage repairs to our Lot coming from this Common Property wall.
What makes this matter a real concern is that our entire Lot is located directly under a huge Tiled Terrace and a number of huge Garden Beds from the Lot above and there appears to be no logical plan in place to replace an ageing waterproof membrane that on this Terrace and in these Garden Boxes, which is now 15 years old and getting to the end of its lifecycle.
Therefore, we suspect the waterproofing memebrane may be the cause of a number of recent water leaks in the building and we are extremely concerned as to the possible damage this is likely to cause to our Lot and it`s rentability in the future.15/06/2019 at 2:50 pm #38122
Tony of Moore ParkFlatchatter
My query follows on from the above . If a hot water system, aquarium or dishwasher installed by an owner or its resident dies, floods the unit and also causes damage to common property and/or other units, who pays? I would have thought that any of these “add ons” are not common property, therefore any damage has to be met by the individual owner or tenant, perhaps through a contents insurance claim? I live in NSW.