Do you have water ingress at your strata property?

Do you have water ingress at your strata property?

AND…owner’s corporation inaction?

You may need to sue your owners corporation!

Here is a hard pill to swallow…

If your owners corporation is responsible for but fails to undertake maintenance or repairs to common property, and:

1. You explain it by proper identification of the location of the cause; and

(For example, reliable expert evidence with the right expert qualifications for the issue at hand)

2. You have reviewed the plan of subdivision and can identify where and why the cause is due to common property; and

3. The owners corporation still fails to act within a reasonable time to repair the common property despite you properly raising and putting it on NOTICE of section 46 or 47 (as the case may be) of the Owners Corporation Act 2006 (Vic).

What other choice do you have?

You are stuck between a rock and a hard place.

You may just need to commence proceedings. Likely seeking injunctive relief (to fix the issue) and damages for loss with proceedings at the VCAT.

Usually best commenced after making a Calderbank Offer (to raise costs protections and preferably resolve without proceedings) and probably a section 112 offer under the VCAT Act once proceedings are commenced too!

If it relates to water, a Water Act claim is usually the most appropriate claim and you may also plead section 5 of the Owners Corporation Act 2006 (Vic) related to honesty and good faith and due care and diligence.

Here’s the thing…

Too often I see lot owner’s hoping, vacillating, and harassing committee members and pressuring strata managers while owners corporations don’t act on the issues.

Why?

It depends on the case, maybe you just don’t have clear proof of the issue in a legal sense. Maybe they have competing evidence. Maybe the issue is not in common property. Maybe the OC is in the wrong.

In many cases, what may be going on is that the owners corporation is obligated to not admit any liability under a general liability insurance policy condition and/or you have not triggered a ‘Claim’ under the liability section of the strata policy…

Put simply, you need legal advice before commencing proceedings, to ensure you have the right evidence to know who has responsibility and have take the right pre litigation steps.

I’ve run this claim on many occasions and the MOST important thing is strong and accurate evidence from an expert with the right credentials and experienced at Court/VCAT. Otherwise you are running a BIG risk of not just your costs but those of your opponent.

Expert evidence - is everything here!

If you want to know more, feel free to message me at Blair@bulawyers.com.au

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

Tagged as:

• building disputes