Insights

In brief - Problems with common property must be recognised and rectified

An owners corporation (also known as a body corporate) has an absolute duty to recognise and rectify problems associated with common property. The recent decision of Mabel Dorothea Fligg v The Owners Strata Plan 53457 [2012] NSWSC 230 emphasises the need for owners corporations to address problems with common property promptly and effectively, or they may face legal proceedings from the proprietors.

Numerous complaints to owners corporation about water leaks

On 15 March 2012, the New South Wales Supreme Court handed down judgement in Mabel Dorothea Fligg v The Owners Strata Plan 53457, which dealt with whether the defendant owners corporation was liable for damage and costs incurred by the plaintiff from water leaks into her property.

Since purchasing her apartment in 2008, the plaintiff, Ms Mabel Fligg, had encountered problems with water penetration into her living spaces. Ms Fligg had complained to the owners corporation numerous times and had previously commenced proceedings in the Consumer, Trader and Tenancy Tribunal in January 2010, which resulted in a mediated settlement and the carrying out of some remedial works.

Since then, the water leakage had remained unrectified. Ms Fligg commenced proceedings in the Supreme Court, as it did not appear that the owners corporation was addressing the issue properly and was unreasonably slow in investigating the problem.

Cost of rectification, damages, out of pocket expenses and legal proceedings

Ms Fligg's claim consisted of three components:

  • Claims for rectification of works and damages for the loss of value of her apartment if the water penetration was unrectified
  • Claim for out of pocket expenses (namely, for consulting engineers to report on the water penetration and for legal fees)
  • Costs for commencing legal proceedings

Owners corporations have a duty to maintain and repair common property

The law under section 62 of the Strata Schemes Management Act 1996 (NSW) states in general terms that an owners corporation must properly maintain and keep in a state of good serviceable repair the common property and any personal property vested in the owners corporation.

From 2008, the plaintiff has been denied the proper use and enjoyment of her property due to substantial water leakages into her apartment. Although an agreement had been made for the investigation of the problems and for undertaking remedial works in 2010, the plaintiff continued to experience water penetration up until the commencement of the court hearing.

Owners corporation claims that it took reasonable steps

Although the owners corporation contended that it had taken reasonable steps to comply with the strict requirements of section 62 of the Act, the court found that it had an obligation to rectify the problem associated with the common property, rather than merely showing that it had acted reasonably.

Supreme Court decides that plaintiff is entitled to recoup costs

As the court held that it was unlikely that repair work would have been done or the repair resolution reached except by the commencement of legal proceedings, Ms Fligg was entitled to her out of pocket expenses, legal fees and other costs, as they were reasonably incurred.

The owners corporation had to undertake remedial works immediately to rectify the water penetration problem.

This article has been published by Colin Biggers & Paisley for information and education purposes only and is a general summary of the topic(s) presented. This article is not specific legal advice. Please seek your own legal advice for any questions you may have. All information contained in this article is subject to change. Colin Biggers & Paisley cannot be held responsible for any liability whatsoever, or for any loss howsoever arising from any reliance upon the contents of this article.​

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