Leaky strata buildings…and who owns the defective property?!

In certain cases, it is not 100% clear who owns the defective property in an apartment building.

Yep - really!

This and inaccurate or competing expert evidence is often a major part of the problem of working out who is responsible for repairing defects causing ingress.

AND there is a lot to be said for how the Plan of Subdivision is drafted - with reference to ownership of the building structure…

…to say: “it is not as clear as is should be” is an understatement!

I have read many confusing plans but generally in most circumstances given ‘ample experience’ I can determine ownership with reasonable certainty.

After doing so, there is one of three outcomes:

1. The defective property is owned by the owners corporation.

Typically, the leaky roof or problem plumbing is common property.

This is probably the most common example I see.

OR

2. The defective property is owned by the lot owner in question who is suffering ingress.

An example of this may be where the defective window frames are causing ingress and they are marked as a thick continuous line on the plan and the lot owner and not the OC owns to the exterior face.

This is probably the most straightforward issue to arrange remedial repairs as the lot owner can arrange and pursue a builder with a warranty claim if within the 10 years from occupancy permit.

3. Or finally, another lot owner owns the defective property.

An example may be a balcony that is leaking to lower floors.

These cases, can be particularly problematic, they often begin without legal advice or reliable expert reports and even the wrong party is initially pursued.

The most important issue here and for any water liability cases is obtaining access to other properties (even if an owner denies access this can be obtained - if you know how!) and running competent water tests by experienced forensic experts to know what exactly is the issue.

Many owners say to me ‘what?’ You mean doesn’t the owners corporation just own the whole structure? After all, they insure it.

Well maybe, it changes between plans, “Interior face”, “Exterior face” and “Median” are all terms used in a plan.

Many are surprised to learn that they in fact own the structure that includes the defective plumbing or water ingress cause! But more typically the problem is in common property.

In fact, these are the difficult cases for the lot owner before obtaining legal advice, they typically bang their head against the wall chasing the owners corporation but due to what may be a concern about probably liability they are not clearly informed…

If you are a lot owner or owner corporation or even another lawyer feel free to reach out and I can have a look at one of these. Often there is a path forward to get things resolved.

This article is a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Tagged as:

• building disputes