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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!
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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.
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.
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.
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.
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.
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.
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.
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.
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?
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.
Hi all,
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.
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