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Leon
Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38481
Experience:  BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
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Property/Owners Corporation Question (Victoria). My OC has

Customer Question

Property/Owner's Corporation Question (Victoria). My OC has no maintenance plan and tends to leave maintenance of areas under its responsibility until absolutely necessary or from sustained pressure from individual unit owners. My (second level) windows have rotted badly to the extent that six sash windows need replacement (beyond repair) at a cost of $8000. The OC says we must share the cost of replacement as the OC are responsible only for the outside of the window and I am responsible for the inside - as the lot boundary runs through the centre of the wall - so that's 50/50. My view however, is that it was the failure of the OC to discharge its duty to maintain the outside of the window which entirely led to the need to replace the windows, nothing I have done internally has contributed to the rotting of the windows. Accordingly, rather than basing responsibility on lot boundaries, it should be based on who failed to meet their responsibility to avoid the situation arising. Do I have a case?
Submitted: 1 year ago.
Category: Australia Law
Expert:  Leon replied 1 year ago.
Good Afternoon.

Thank you for your question. To Introduce myself I am a sydney based Solicitor and will do my best to provide you with relevant information to assist you.

What is your Unit entitlement based on the total strata?

The windows are common property and the cost is born by the Owners Corporation and each unit owner contributed as per their entitlements if there is no money in the sinking fund.

Unless you can show personal loss and damage to your personal property you cannot claim against them.

The building is the responsibility of the OC and they have to pay. You each contribute to the maintenance in your levies.

They cannot ask you to pay 50% unless you have 50% of the total unit entitlements.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

 

Customer: replied 1 year ago.

There are 42 lots, (9 with entitlements and liabilities of only 2) 33 with entitlements and matching liabilities ranging from 167 to 333 totalling 10,000. My apartment has entitlements and liabilities of 257. The OC's explanation for the 50/50 requirement was by way of sending a copy of the plan of subdivision which shows the lot boundary runs through the median of the width of the external walls, thereby dividing the responsibilities between unit owner (internal) and OC (external). The OC say that as the windows are half external and half internal, any replacement is 50/50. Does the title boundary between my unit and common property (median of external walls) change your advice?

Expert:  Leon replied 1 year ago.
Good Evening

They are wrong

Your contribution would be 257/10,000

Unless there is a by-law that says unit owners are liable for the windows.

You are not liable.

Can you send me the plan they are referring to?
Customer: replied 1 year ago.

 

 

Here it is, the words "median of walls floors and ceilings"

Expert:  Leon replied 1 year ago.
Do you have the actual strata plan?

This means nothing without seeing the plan.


Customer: replied 1 year ago.

Here it is, I'm unit 31:


 


Attachment: 2013-01-13_091416_yarra_17-25.pdf

Expert:  Leon replied 1 year ago.
Good Morning

They are wrong.

It is a typical strata plan. You own from the paint inward. The building is common property and they are responsible for the lot.

If they do not agree then you will have to take action against them by suing in VCAT.

You are only liable for your share based on the unit entitlement.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.


Customer: replied 1 year ago.

Thanks, but could you please clarify the relevance of the lot boundary defined as "median of walls floors and ceilings"? This is what the OC relies upon because they say the lot boundary defines that I am responsible for - that is, the building from the lot boundary inwards.


 


Also, are you able to identify yourself and be engaged by me if this matter escalates with the OC?

Expert:  Leon replied 1 year ago.
Good Morning,

I am unable to answer that and what ir actually means.

The Windows though do not form part of the Wall. They are external and form part of the building and the liability and responsibility of the body corporate.

The actual Strata plan does not split the walls between common property and non-common property and therefore I cannot see how they can make the claim they are.

I am unable to take on work privately, as the terms and conditions I have entered into with just answer will only permit me to respond online.

As this matter is a Victorian matter, I would suggest you contact the Law Institute of Victoria and get a referral to a solicitor the practices in property law and get more detailed advice.

The website is as follows:

http://liv.asn.au

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.



Leon, Solicitor
Category: Australia Law
Satisfied Customers: 38481
Experience: BEc Dip Ed, Dip Law (SAB) MTax (UNSW)
Leon and 2 other Australia Law Specialists are ready to help you
Customer: replied 1 year ago.


Hi, I believe some of the advice above may not be accurate. In NSW it is clear that a windows is part of a wall, and is therefore OC responsibility. In Victoria, it is not as clear cut because a "median" title boundary as described above can be drawn through the walls AND WINDOWS of an external wall to create a sharing of responsibility (and there is no requirement for a sinking fund).

 

Please clarify the following question: If the ownership of the window is shared by virtue of the title running through the median of the window, could it be said that as the owner made no contribution to the damage to the window frames internally (ie the damage was caused by rain penetration from the outside caused by failure to adequately maintain the exterior of the window which is OC responsibility), notwithstanding the shared ownership, the OC should repair the window at general OC cost as the damage was caused from their side?

Expert:  Leon replied 1 year ago.
Good Afternoon,

The answer to your question is a yes the owners Corporation is responsible.

If the entry of the water is due to the owners Corporation failing to maintain the exterior of the Windows resulting in a deterioration of the seals then it is the owners corporations cost to repair the windows and the sales to stop any further damage.

It is also very responsibility for the repair of any damage to the unit owners personal items as a result of the water entering the unit.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Customer: replied 1 year ago.

Thanks. XXXXX has replaced six window saches for which they want me to pay half of the cost ($8000). They say that because I own half the windows, then the cost is 50/50. My view is that regardless of the unit boundary and ownerships, as they allowed the external surface of the window to deterior to the point of needing to replace the windows, and I caused no damage to the internal surface of the windows, I should not contribute. Please confirm that such an argument would be defendible at VCAT.

Expert:  Leon replied 1 year ago.
Good Afternoon,

The damage that has been caused is because they failed to maintain the external windows which made the seals fail.

If they are going to demand 50% payment then I would suggest that the parties that are requested to pay the other half take the matter further and have a night before VCAT.

The position of the unit holders has to be that the damage was as a direct result of the failure by the owners Corporation to maintain the Windows.

This is the argument I would suggest you run in VCAT.

I hope this is of assistance. If I have missed anything, or you have any further questions please let me know before leaving any feedback.

If I have assisted please do not forget to leave me with positive feedback.

Customer: replied 1 year ago.


The windows are double hung sash windows (two window panes that slide up and down one inside the other). I have a second concern that if I dispute the bill to VCAT and the Tribunal agree that the cost should be apportioned based on the "median of walls", they may even go further based on the property boundary and conclude:

 

1. The upper sash window, which did not require replacement, sits flush with the outside wall and therefore is the responsibility of the OC.

2. The lower sash window sits flush with the inside wall of the apartment and therefore replacement of this sash is 100% my responsibility as owner.

 

Is this a danger?

Expert:  Leon replied 1 year ago.

Good Morning,

What actually caused the water to come in was at the frame of the window from the outside not been properly sealed and maintained?
The people that replace the windows, are they able to confirm what the cause of the problem was and give a report which point to the fact that the owners Corporation's failure to maintain caused the problem?
This is the type of evidence the court looks set your argument versus the argument of the owners Corporation will not hold much weight and if that is the only evidence before the court, it will have to guess what it thinks is right.
But a report from the people that replace the windows confirming the actual cause of the problem and that it was because of failure of maintenance by the owners Corporation will not cause you any problem with costs.
Customer: replied 1 year ago.
Relist: Answer quality.
All of the above! The answers are coming back so quickly they can't possibly have been given enough thought. I first got an incorrect answer (based on NSW legislation whilst I am in Victoria) and am now not getting a specific answer to my specific question. I will ask it again with more detail and you will see 2 questions at the end which I would like answered please:
I have a 1980s strata title apartment in VICTORIA in a three storey block of 44 apartments. It has timber double hung sash windows. The bottom sash window timber frames and sills weathered and rotted beyond repair due to rot caused by weather/rain and have had to be completely replaced. The OC had neglected maintenance work to keep them waterproof or to prevent the rot occurring.
The complex is under the thresholds for a mandatory requirement for a maintenance plan and does not have one.
The Owner's Corporation Rules are based on the model rules in the Owners Corporation Act 2006 and make no mention of maintenance or windows.
There are one or two other sills in the apartment complex with evidence of rot in sills but essentially my apartment is worst affected due to facing west and being on the first floor (the ground floor windows are protected by carports and the upper level is protected by the eaves. The works undertaken to replace the six window sashes is confined to my apartment alone.
The OC says that the cost of the replacement of the timber windows/sills is to be shared 50/50 (half each) based on the boundary between owner's responsibility and OC Responsibility being the "median of walls" (specified in words in the Plan of Subdivision) and therefore the windows are half external and half internal (hence 50/50).
My view is:
1. Apportioning of costs 50/50 is too simplistic when taking into consideration that the rot was caused by lack of maintenance to the outside surfaces, that is, the failure by the OC to maintain the outside surface of the timber windows/sills allowed rot to occur beyond repair from the outside (the weather side), and therefore the OC has a greater responsibility to fund the repairs apportioned based on unit entitlements. Nothing I did contributed to the poor state of the windows/sills.
2. However, I have a second concern that if I dispute the bill to VCAT and the Tribunal agreed that the cost should be apportioned based on the "median of walls", they may even go further than the OC based on the property boundary and conclude:
• the upper window sash, which did not require replacement, sits flush with the outside wall of the unit and is therefore OC responsibility,
• the lower sash (which slides inside the outer pane) sits flush with the inside wall of the apartment and therefore cost of replacement of this sash is 100% my responsibility as unit owner.
A contrary view in support of the 50/50 split is that the benefit of the repairs is entirely to my lot and therefore the OC Act 2006 allows for the OC to seek reimbursement of their costs. S28 reads:
28(2)
A lot owner is not liable to pay or contribute to the funds
of the owners corporation a proportion of any amount
required to discharge a liability of the owners corporation
exceeding the lot owner's lot liability.
28(3)
Sub-section (2) does not apply to an amount payable to
an owners corporation for repairs, maintenance or other
works that are undertaken by the owners corporation on
common property or a lot and which are wholly or
substantially for the benefit of some or one, but not all, of
the lots affected by the owners corporation.

DO I HAVE A CASE FOR DISPUTING THE 50/50 APPORTIONMENT OR IS KILLED BY SEC28(3) OF THE OC ACT 2006?

HOW MUCH RISK IS THERE THAT BY CONTESTING THE MATTER I MIGHT HAVE TO PAY 100% BASED IN 2. ABOVE?

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