Water leakage issues spark conflict as owners’ corporation faces accountability questions
Published on October 30, 2024 by Brett Fatches
A dispute emerged within a New South Wales strata scheme regarding the maintenance responsibilities for the balcony area of a unit. The balcony, initially an open space, was altered by enclosing a part and installing new flooring. The alterations led to water leakage issues affecting the unit directly below.
Background
A strata scheme was established following construction of a 6 unit multi-storey building. Each of the units were made lots in the strata scheme. The units each had an open balcony which were built to allow rain landing in the balcony area to run off with a fall toward the open edge of the balcony and away from the building.
Later, the owner of one of the lots carried out renovations, partially enclosing his balcony and installed new floor tiles.
After the alterations were done a plan of subdivision was registered. The subdivision reconfigured the layout of the strata scheme and included the new external walls of the enclosure to the balcony of unit.
The lot owner who carried out the work sold the lot and it is now owned by new owners who had no knowledge of how and when the alterations were done.
Because of the enclosure and new flooring, rainwater no longer drains from the balcony and instead leaks into the unit below.
Who is responsible to remedy the leak? The new owner of the lot and the strata committee have been in dispute about this for a long time.
The strata committee says the leak is not the Owners Corporation’s responsibility. They argue that the alterations were done without proper waterproofing and altered the drainage of the area, preventing effective water runoff. As a result, the owner of lot is liable for any resulting issues.
The new lot owner says it is not my responsibility, I had nothing to do with the alterations.
Legislative Context
The legislation governing the maintenance responsibilities for strata schemes includes the Strata Schemes Development Act 2015 and the Strata Schemes Management Act 2015. Section 106 of the Management Act says that an owners’ corporation must maintain common property and can be held liable for damages resulting from any breaches of this duty.
The definitions set out in the legislation relevantly say.
- common property in a strata scheme is all areas of a building that are not part of a lot.
- a lot is one or more cubic spaces extending from the inner surface of the floor and ceiling of the lot and the walls shown out in the strata plan.
Committee Position and Legal Implications
The Committee was probably correct until the plan of subdivision was registered.
However, upon the registration of the subdivision these things happened:
- the new lot became identified as the cubic spaces within the surface of the areas identified in the new plan including the new flooring and external walls constructed on the balcony.
- The alterations, including the new flooring and walls constructed on the balcony of the unit became Common Property.
- The Owners Corporation became responsible for the maintenance, repair and upkeep of the alterations including the new flooring and walls, and the water leak into the lower unit.
Potential Outcomes
Residents affected by the water leaks may have grounds to seek damages from the owners’ corporation, as the ongoing issues stem from its failure to uphold maintenance responsibilities.
It is important to know your rights and obligations.
Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.
