Is the Owner’s Corporation liable for damage to my property?

The recent floods across Sydney have seen a floating car at Mackellar Girls High School in Manly Vale, Roseville Bridge in Frenchs Forest go underwater, Manly Beach disappear altogether, the spilling of Manly Dam and the Northern Beaches become so inundated with flood waters that some satirists jokingly stated that the NSW government should operate a new ferry service from Dee Why to Chatswood along Pittwater Road.  

As we’ve all seen on the news, many property owners across the Northern Beaches have found their properties inundated with flood waters, dirt and just about anything picked up by the raging waters rushing down our streets.  

But, who’s liable? Depending on exactly what has been flooded (or otherwise damaged), the Owner’s Corporation may be responsible for paying the costs of repair.  

This responsibility is not just limited to flood damage, but also disputes regarding who should pay the costs of repair arising from blocked pipes, electrical defaults, creaking stairs, jammed doors, mouldy lifts, air conditioners that heat up the property rather than cooling it, property erosion across Collaroy/Narrabeen, damages from pets and just about any other sort of property defect which you could imagine.

Disputes between owners and Owner’s Corporations can become extremely expensive, with the associated legal costs potentially exceeding the value of the repairs itself, not to mention the immense emotional costs, time and stress arising from litigation.

However, to prevent such disputes from arising, NSW Fair Trading has published a ‘Common Property Memorandum’, which provides explicit guidelines as to who is responsible for what. For instance, the Memorandum states that the Owner’s Corporation is responsible for the ‘maintenance, repair or replacement’ of balcony railings, whilst the owners are responsible for awnings & decks on the balcony within the cubic space and not shown as common property on the strata plan.

Using the recent storms as a more specific example, if a tree were to fall on an apartment building (as was the case in various properties in Manly and Harbord) the Owner’s Corporation would likely be responsible for repair costs associated with damage to the outer balcony railings under the Memorandum. However, the owner him/herself would be responsible for repair costs associated with damage to a private deck.

Whilst this Memorandum is not binding on all properties, it can become binding if the Owner’s Corporation incorporates it as a by-law. Further, in the absolute worst-case scenario that the dispute is litigated in Court, the Court may consider the Memorandum in deciding the dispute.

If you would like specific legal advice and/or assistance regarding incorporating the Memorandum into your by-laws or other property matters, call Wainwright Legal in Balgowlah on (02) 9170 0899.