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  • #8756
    newlsie
    Flatchatter

      Can an owner sue for lack of amenity if they live in a unit that leaks like a seive and they have to pull the carpet up to dry the place out every time it rains.  They are thethered to a 5 kilometer range from the unit in case they need to mop up and dry the place out and they want to go on an overseas holiday.  The OC has done nothing about it for the past 16 months and is unlikely to do anything for the next 6 months because they are all arguing about what to do about the leaks and how to replace the windows?

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    • #18102
      kiwipaul
      Flatchatter

        The OC have a duty of care to maintain the property, which they are obviously not doing. If it is possible to repair the leaking just for your unit get a written quote from a trades person to repair your unit.

        Send a copy of this quote to the SM and the Secretary of the OC telling them unless they approve the quote (or they organize their own quote within the same time frame) within 14 days and instruct the trades person to proceed you will start legal proceeding against the OC at CTTT.

        CTTT involves conciliation and then adjudication (takes about 3 months) but the result should be in your favor (costs about $150)

        An alternative if the OC don’t proceed after the 14 days is to go ahead with the repairs yourself and pay but then go to CTTT to recover the costs.

        Take plenty of photos of the leak and damage caused to reenforce your case at CTTT and keep copies of all correspondence.

        #18104
        Austman
        Flatchatter

          Some more details are needed.

          Is it just your apartment that’s affected?  Is it a new apartment (meaning it’s still under builder’s warranty)?  

          If it’s just your apartment and the warranty has lapsed then I agree with kiwipaul.

          But our OC has had similar problems where many apartments were affected and the building should have been under warranty. 

          It can be a complex matter to get genuine building defects fixed – it shouldn’t be, but it was for us.   But your case sounds critical and the OC should at least try temporary remedies.  Have they done that?   We did just that but eventually had to pay to repair all the defects ourselves due to the useless building warranties in Victoria.  We tried to do repairs as fast as possible – but it was very easy, especially for non-resident owners, to just demand things like “claim against the builder” or ‘take legal action” or “get more quotes” etc etc.   It really took some time.  Then of course we had to raise the funds …

          #18109
          Jimmy-T
          Keymaster

            I can tell you that it has been established in the Supreme Court here in NSW that pursuing developers for defects claims is not considered maintaining and reparing common property as required under strata law. In other words, the OC has to fix it regardless of what else is going on – they just need to make sure they follow correct procedures with assessments,quotes and contracts so that there can be no quibbles when they do make a claim.

            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.
            #18110
            Austman
            Flatchatter

              @JimmyT said:
              I can tell you that it has been established in the Supreme Court here in NSW that pursuing developers for defects claims is not considered maintaining and reparing common property as required under strata law. In other words, the OC has to fix it regardless of what else is going on – they just need to make sure they follow correct procedures with assessments,quotes and contracts so that there can be no quibbles when they do make a claim.

              Nothing to do with following the law. Nothing to do with the developer (because it actually it has to be the builder in VIC).  We understood all of that. 

              It’s the process of getting repairs done if some owners want to pursue the builder’s warranty insurance before paying lots of money themselves.   And that’s a fair enough stance  too – it is supposed to work that way – after all,  the OC didn’t cause the building defects, the builder did! 

              And it’s what will work to fix the defect, how much will it cost?, when can it be done?, how do raise the funds? etc. 

              Ultimately it’s an OC process matter. It’s the OC trying to arrive at a correct decision.  It’s the OC getting information from managers, lawyers, builders, experts. It’s the OC dealing with builders and tradesmen who don’t even bother to turn up half the time.  And it’s the OC dealing with the complaints from non affected owners when they realise they’ll have to pay for repairs on issues that don’t directly affect them.

              It’s not really that easy.  It’s not really that simple.  Especially for unpaid volunteers that have to do most of the work. 

              Get on the EC and help out if you really care!

              #18111
              Jimmy-T
              Keymaster

                Austman said 

                Nothing to do with following the law. Nothing to do with the developer (because it actually it has to be the builder in VIC).  We understood all of that. 

                It’s the process of getting repairs done if some owners want to pursue the builder’s warranty insurance before paying lots of money themselves.   And that’s a fair enough stance  too – it is supposed to work that way – after all,  the OC didn’t cause the building defects, the builder did! 

                So you’re having a go at me for pointing out how it actually works here in NSW rather than how it’s supposed to work? And yet you’ve discovered that in your situation waiting for the warranty issue to be resolved was a waste of time and probably money too.

                In this regard, there is very little difference between NSW law and Victorian law which says: 

                46. Owners corporation to repair and maintain common property
                An owners corporation must repair and maintain—
                (a) the common property; and
                (b) the chattels, fixtures, fittings and services related to the common roperty or its enjoyment.

                That’s an absolute and unqualified legal responsibility and that’s why Bodies Corporate in Victoria have to think first about fixing defects and think afterwards about who should pay for it and how you are going to get them to do that. (By the way, if anyone knows of case-law that disproves this PLEASE let us know.)

                Plenty of owners In the no-mans-land of defect disputes think it’s only right that you get the money from the builder/developer first and fix the defects later.  And some members of ECs use the idea that they are in negotiations with the developers or builders as an excuse for not fulfilling their statutory duties (at least until they have sold up and it’s someone else’s problem).

                So my advice for any owner who’s trapped in a defective building is to demand that a program of works is sorted out, regardless of the progress of any defects claim.  If the EC or OC refuses to do that, take them to the CTTT (in NSW) and ask that an order be made against them to fulfill their statutory duties.  

                If you are on an EC and your building has defects, get a reliable building consultant (like our sponsors IBC)  to do an assessment of the building defects and take that report to the developers and ask them to fix them.  

                When they refuse, raise a loan to get the work done while pursuing the defects claim through whatever channels are available to you.  The Building Consultant will become your project manager and they will make sure everything is done by the book.

                At least then if you do end up in court against the developer you will have irrefutable evidence that things needed to be fixed, and how much it cost when they were fixed and that the developer refused to do it which is why you went ahead and did the work yourselves. 

                And if, because the system is stuffed, you end up not getting your money back, at least your defects have been repaired which is what you would have ended up doing in the first place.

                The Owners Corporations’ (and, in Victoria, Bodies Corporate’s) prime responsibility is to maintain and repair common property – not necessarily to sue developers and builders. Individual owners who want insurance money first and defect rectification later need to have the facts of life explained to them and, if need be, feel the weight of a CTTT order to convince them of the error of their ways.

                At the end of the day, you have to fix the defects – you may as well get on with it and use it to your advantage if you possibly can.

                 

                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.
                #18113
                Austman
                Flatchatter

                  Not meaning to have a go at you.

                  But trying to say that getting these things fixed is often a lot more easily said than done.   In my experience, it’s rarely simple.

                  For example building defects are not always the responsibility of the OC.   It’s only when the building defect affects common property that the OC is fully responsible.  Lawyers and OC management companies have told us this.  So first up it might be wise for an OC to establish responsibilities – which are not always obvious.  In one of the OCs where I am a member, there were water leaks.  But these were partly coming from terraces/balconies that in Victoria can be an owner responsibility to repair and maintain (owners can be responsible for tiles and waterproof membranes in Victoria).  The OC decided to get repairs done anyway (and always attended to acute issues) and were then threatened with legal action by non affected owners who didn’t want to contribute to the repairs.

                  But back to the original problem.  Regardless of how the problem will be solved, acute problems like yours need immediate actions while the long term solution is found.

                  #18114
                  Jimmy-T
                  Keymaster

                    I think we’re on the same page here and that’s why I suggested an assessment be done and then work begun as quickly as possible. In Victoria, that assessment would include establishing where liability lay before work was done that might obscure where the original problem existed.
                    Also getting back to the original question, compensation for the loss of amenity, in NSW that would probably have to be pursued at the Supreme Court on the grounds that the CTTT doesn’t appear to have the capacity to award damages of this kind.
                    That’s a lot more expensive a proposition than a CTTT case and you would have to be sure that you would win damages and costs to cover the cost of the case (you never get all the costs back, even if all costs are awarded).
                    However, there is another option worth exploring, under section 146, you can ask the CTTT to impose an order instructing a “person” to make an insurance claim. That person in this case would be the EC. This would at least get you into the mediation phase where all the issues could be thrashed out.
                    The fact of the matter is that even if you took this to the Supreme Court, the Owner’s Corp’s insurers would become involved. This approach might short-cut that process, bring the insurers in earlier and they might make the decision that it was cheaper and easier to pay up.

                    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.
                    #18115
                    scotlandx
                    Strataguru

                      In this case, if an owner’s lot is awash with water due to a fault in the common property then yes, the OC has a responsibility to fix that fault. If it has caused or is causing damage to things in the lot such as carpet, the OC must replace those items. (Yes I know others see it differently, but the damage is caused by the defective property). If there were circumstances such as not being able to rent the property out, the owner could sue for damages and would likely succeed.

                      Taking into account the nature of the problem, delay is not acceptable, and is not in the interests of the OC.

                      16 months is far too long, 3 months is reasonable from the start of the problem. Send them a letter saying they must fix it within a 14 days or a month, or you will commence proceedings.

                      #18116
                      newlsie
                      Flatchatter
                      Chat-starter

                        Thank you all for responding.  I now realise you need more information.  This building has badly installed and very leaky windows which were put in 23 years ago.  The slab has magnesite and the leaky windows have caused concrete cancer.  By Special Resolution at the the 2010 AGM the owners agreed to repair the concrete cancer and install new windows.  It took more than two months to do the work on my unit (btw the OC did not pay me compensation for not being able to live in my home for two months – can they do this?).  I have two major leaks; 1. through the south facing window which is common property and, 2. into the east facing window which boarders the balcony, and, as a direct result of the works that were performed to repair the concrete cancer in the unit above me.  The OC is aware of this, there are plenty of photos.  The OC paid $5k for legal advice as to who was responsible and at the end of the day the advice was that it could not be proved if the defect was caused by the company that did the spalling works, the leaky windows or an original defect in the construction of the building and the positioning of the flashing in 1963.  Meanwhile I am teathered to my unit by a 5 kilometer radius if there is any sign of rain so that I can rush back and move all the furniture and catch the water.  We cannot see where it comes in but it gets onto my blind and drips from the entire base of it so there is no way I can just put a bucket under it.  Two tradies have looked and the problem and they will not guarantee they can fix it without replacing the windows which requires the arguing owners to stop arguing and get on with the replacement of the windows.  Thanks for your great advice.

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