Maintaining Common Property
The consequences for owners corporations that fail to regularly repair and maintain common property can be serious and costly. In addition to adversely impacting the amenity of the building and consequently the market and rental values of lot properties, failure to maintain and repair can result in Court or Tribunal applications against the owners corporation and a significant amount of additional work for committees and strata managers.
Owners corporations have a strict obligation to repair and maintain, keep in a state of good and serviceable repair, and renew or replace any fixtures or fittings comprised in the common property. This obligation also extends to personal property that has vested in the owners corporation.
Section 106 of the Strata Schemes Management Act 2015 (“SSMA 2015”) created a statutory liability for owners corporations who fail to meet this obligation. This means that within two years after a lot owner becomes aware of a loss, that lot owner may bring an action in NCAT for breach of statutory duty. If successful in their claim, the lot owner may recover damages from the owners corporation for any reasonably foreseeable loss suffered by the lot owner as a result of the owners corporation’s breach. NCAT additionally has the discretion to award legal costs.
Work Health and Safety
Strata managers facilitating regular repair and maintenance works should ensure that the owners corporation is compliant with the Work Health and Safety Act 2011 (“WHS Act”). Under Regulation 7 of the Work Health and Safety Regulations 2017, an owners corporation that is responsible for any common areas used only for residential purposes may be taken not to be “a person conducting a business or undertaking” in relation to those premises for the purpose of the WHS Act.
This exemption does not apply to owners corporations in commercial schemes, though it may apply in a mixed-use scheme. The exemption will also not apply to owners corporations who engage any workers as employees, as opposed to contractors. For the safety of residents and occupiers, It is advisable that owners corporations seek written assurance from their contractors prior to engagement that their contractors have procedures in place to ensure that the contractor is adhering to their obligations as employers under the WHS Act.
This article has been written by David Bannerman, for more information visit Bannermans Lawyers