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Water is our Friend – Unless it is in My Unit

By Maxine Fenlon

21st October 2019

Imagine this. Water has penetrated your unit in a community titles scheme causing internal damage to your lot. The body corporate must pay the costs, right?

Not necessarily. This is a common situation for many unit owners and committees and the answer is not always clear. The issue was again addressed by the Body Corporate Commissioner in The Peninsula Airlie Beach [2019], handed down on the 30th August 2019.

The Facts

The owner of Lot 38 alleged that water had been penetrating her unit since damage was caused to the complex by Cyclone Debbie in 2017 and the body corporate had failed in their obligations to both remedy the damage to the building and the damage to her lot. Both the body corporate and the lot owner obtained several reports about the cause of the water penetration.

The Law

On the face of it, the legislation is clear. The body corporate must maintain common property and (where a building format plan applies), some other parts of the building such as roofing membranes, foundations and other structural elements (s157 Body Corporate and Community Management (Accommodation Regulation) 2008 (“Accommodation Module”)). The owner must maintain the lot (s168(2) Accommodation Module).

The Verdict

The adjudicator determined that the body corporate was NOT responsible for the damage because:

  • The reports differed with respect to the cause of the damage. At least in part, the damage was caused by ingress through the windows and this is the responsibility of the owner;
  • The body corporate had acted appropriately and reasonably and were entitled to rely on the advice given in the building report that they had obtained. As such, they were not in breach of their obligations to maintain common property, even if the common property did contain defects. This obligation is not a ‘strict liability’, provided the body corporate has sought to carry out their functions ‘reasonably’;
  • The adjudicator does have the power to order the body corporate to repair damage to the interior of a lot at the cost of the body corporate but determined this was not appropriate in the circumstances. The adjudicator said that, at least in part, the damage was caused by the lot owner’s own failure to maintain the windows, and as such, the damage could not be wholly quantified;
  • The lot owner did not make reasonable attempts to resolve the dispute before making the application and particularly did not table any motions for the body corporate to consider regarding repairs to the building. The applicant therefore failed to establish that there was a ‘dispute’ in the first place.
What does this mean for you?

The case outlines again the importance of determining the precise cause of the damage. If the damage cannot definitively be determined to have arisen from common property or (where relevant) from another part of the building that the body corporate is responsible for, it will be difficult for the owner to establish that the costs of repair are payable by the body corporate.

Given the recent flood events in Townsville, the issue of water penetration is likely to still be an issue for many complexes. Our Property Law team in Townsville or the Sunshine Coast can assist you to determine what your rights are, whether you are an aggrieved lot owner or a member of a committee. If you would like to know more, please contact Maxine Fenlon or another of our property lawyers.

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