What’s the damage? Details & Damages involved with OC’s Failing to Repair and Maintain the Common Property
Posted 29 March 2022
Category: Strata
Most people may already know that an owners corporation has a strict duty to repair and maintain the common property of a strata scheme. But do they know that if the owners corporation fails to fulfil its strict duty of repair and maintenance that they have a right to claim damages (compensation) in the sum of tens of thousands of dollars for its breach of such statutory obligation?
Section 106(5) of the Strata Schemes Management Act 2015 (NSW) provides that a lot owner in a strata scheme may claim damages (compensation) from the owners corporation for any reasonably foreseeable loss suffered by the owner relating to the owners corporation’s breach of its strict duty to repair and maintain the common property. For example, the circumstances that may give rise to a lot owner the right to claim damages (compensation) include the following:
- An owners corporation’s failure to rectify water penetration issues originating from the common property that consequently damage the lot property which then renders the lot uninhabitable.
- An owners corporation’s failure to rectify essential fire safety equipment which consequently leads to the issuance of a fire safety order that may potentially restrict the occupation of the building.
- An owners corporation’s failure to repair and maintain defective balustrades on a lot’s balcony which consequently leads to the lot’s balcony to be unsafe and unusable.
Relevantly, the above circumstances may provide the lot owner with the right to recover costs from the owners corporation, including loss of rent and/or costs for undertaking rectification works by the lot owner (in the absence of the owners corporation effecting the repair and maintenance of the common property).
The below table provides an overview of the quantum of damages (compensation) typically awarded to lot owners by the courts and the NSW Civil and Administrative Tribunal for an owners corporation’s breach of its statutory duty to repair and maintain the common property:
|
Name of Case
|
Quantum of Damages (in approximate amounts)
|
Basis of Damages
|
| Smith v The Owners – Strata Plan 3004 |
$6,400.00 |
|
| Vickery v The Owners – Strata Plan No 80412 [2020] NSWCA 284 & The Owners –  Strata Plan No 74835 v Pullicin; The Owners – Strata Plan No 80412 v Vickery [2020] NSWCATAP 5
|
$97,000.00 |
|
| Rosenthal v The Owners – SP 20211 [2017] NSWCATCD 80 |
$8,800.00 |
- Cost of the rectification of the damage.
|
| The Owners Strata Plan No 30621 v Shum [2018] NSWCATAP 15 |
$28,000.00 |
|
| Shih & ors v The Owners – Strata Plan No 87879 [2018] NSWCATCD 74
|
$540.00 |
|
| Carli v The Owners – Strata Plan No 56120 [2018] NSWCATCD 55 |
$51,000.00 |
- Cost of alternative accommodation.
|
| Huang & Giang The Owners Strata Plan No.65865Â [2021] NSWCATCD 15
|
$7,730.00
|
|
| Zanetti v The Owners – Strata Plan No 43300 [2018] NSWCAT |
$70,598.09 |
- Cost of property manager in defending claim by tenant in NCAT; and
|
| Liberant v The Owners – Strata Plan No 62713 [2019] NSWCATCD |
$55,510.12 |
|
| The Owners – Strata Plan No 62713 v Liberant [2022] NSWCATAP 80
(appeal of above matter of Liberant v The Owners – Strata Plan No 62713 [2019] NSWCATCD) |
As above |
- Interest; and
- Costs of the first instance proceedings and the appeal (as agreed or assessed).
|
If you have suffered or believe that you may have suffered losses (financial or otherwise) as a result of an owners corporation’s failure to repair and maintain the common property, please contact our experts at Bannermans Lawyers at enquiries@bannermans.com.au or call us on 02 9929 0226.
Related Articles
Owners Corporation’s Duty to ensure safety of the Common Property
Drips and Disputes: Unraveling the Responsibility for Upstairs Water Leaks
Claims by Owners for Damages caused by Water Ingress under S106(5)
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.
