VIC Q: Is this really a 'repair'? (Sec 48, Owners Corporation Act)

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adonis_paradise

Well-Known Member
26 April 2021
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Hi all.

I am the owner of a flat, on the upper level of a double storey building. Under the concrete slab (upon which my flat 'sits') are 4 carpark spaces, ie there is no downstairs flat. I mentioned some cracks in my internal walls to the OC, and they commissioned Engineer1, who said that the "structure is in danger of collapse", and that “the suspended concrete slab must be propped up as soon as possible”. The OC installed (hired) support props. A second opinion ('Engineer2') disagreed that the structure is in danger of collapse, but refused to condone the removal of the props (something the OCs insurer insisted upon), and suggested support beams for $40K+.

Meanwhile, (this is the plot twist) .. the OC's lawyer says that the slab actually falls within the boundary of private lots(!), and "given that no common property is involved in the concrete area, the Owners Corporation is not responsible for the costs of rectifying either the suspended slab deflection or the internal cracking within [my lot]. At present, on the investigations done to date, only lots [my lot and the 4 car space lots below] are liable to pay for the rectification works required to be undertaken and detailed in the (Engineer's) Report."

So also say I must pay for the cost of the hired props (from date the area was deemed 'private property' ). While I agree that the proposed works would increase safety, I question whether the works are necessary, as a third engineer also disagreed with Engineer1's opinion that “the structure is in danger of collapse”

Q1: Isn't the OC usually responsible for maintaining essential structural elements of the building (like foundation structures, roofing structures that provide protection and load-bearing walls) - ie even if they are not on common property?

Q2: The slab shares boundaries with five separate lots. It services the rest of the building, because it carries the weight of the (common property) roof, and sits on the (common property) walls. Aren’t elements which 'service' more than one lot normally dealt with as ‘infrastructure', ie common property’?

Q3: If I may quote Section 48 of the Owners Corporation Act (Vic) 2006:
Lots not properly maintained
(1) If a lot owner has refused or failed to carry out repairs, maintenance or other works to the lot owner's lot that are required because—
(a) the outward appearance or outward state of repair of the lot is adversely affected; or
(b) the use and enjoyment of the lots or common property by other lot owners is adversely affected—
the owners corporation may serve a notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works.

I ask the OC, but it is not explained how the condition of the slab affects A: “The outward appearance or state of repair of the lot” (ie there is nothing to 'see'), or the "use or enjoyment of other lots". The hired support props do take up someone's car spot, but they were installed by the OC itself. They are not my property, and are not located on my property (they are wholly within one of the car parks below). Does Sec 48 even apply here?

Q4: Do the works proposed by Engineer2 constitute 'repair' as per Sec 48? They involve support beams, being placed against (an external part of) the building. The internal cracking within my flat will not be 'rectified', and the slab itself will remain in its 100% original condition. Are they a 'repair', or an 'improvement' (they involve building permits etc as per capital works).

Q5: If the structure is NOT in danger of collapse ( the basis upon which the props were put in) it didn't need the support props.. so... who should pay for the (hired) support props?

Since two engineers disagreed with the initial engineer’s dire safety assessment, the main impetus to do works is to get rid of the (hired) props, placed there by the OC. I called the prop hire company to tell them to remove the props (because they are on private property), but they said their contract is with the OC Manager. The OC Manager said she could not remove the props, because she had to fulfill the requirements of the OCs Insurer. I'm confused, because if were talking about 'private property', why is the OCs insurer involved? The main impetus to do works is to remove the hired props, and comply with insurance requirements, so is there a case to be made that everyone should contribute?
 

Rod

Lawyer
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27 May 2014
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The starting point is to determine what is private property and what is common property.

Need to review the title and plans to work that out, and only then can steps be taken to resolve the issues, including whether the works are covered by a builders warranty.

Suggest you give a our property team a call and they will be able to help you.
 

adonis_paradise

Well-Known Member
26 April 2021
18
0
71
Hi Rod.

Thanks for your reply.

The Plan Of Subdivision does indeed show that the boundary of my flat (and the car parks downstairs) is the median of the slab, which I believe was 'normal' for buildings of that era (1970).

I *assume* that any builders warranty would have expired, but maybe... if the builder was insured at the time, their insurance might *still* cover it, ie even if the builder no longer 'exists'(?) Btw, Engineer3 said that (according to the scan he was given) "the reinforcement in the slab does not comply with ... the code being used when these apartments were built". Since building works had to be approved by the local council's building inspectors at the time, perhaps the local council can be held responsible?

This all sounds very fiddly (and risky/expensive) to pursue, and in any case, I'd still have to pay for these "repairs" (and the hired support props) out of my pocket first ... or do I??? If there is 'nothing to 'see', and people's 'enjoyment' is not affected by the condition of the slab, does the OC still have grounds (under section 48) to insist that works be done?

ps I looked through the AustLII database, but couldn't find any similar situations. Do you know of any?
 

Rod

Lawyer
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27 May 2014
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www.hutchinsonlegal.com.au
Yes, builder warranty expired. Worthwhile seeing if insurance covers the claim.

Council may be at fault as well.

Q1. No

Q2. Hmm, possibly s.47 may assist you.

Q3. They will likely rely on s.48(1)(b).

Q4. Likely to be a repair. Fixing something faulty.

Q5. If the OC arranged it without your agreement to pay, the OC. They may be able to seek re-imbursement from you later, but only if you have liability and that is not certain.

Complicated scenario. Try mediation to see if it can be resolved with going to VCAT.
 

adonis_paradise

Well-Known Member
26 April 2021
18
0
71
Understood, thanks heaps Rod!
(...much to think about)
ps. yes it is a 'complicated scenario'.... it took me nearly 30 minutes just to decide what to put on the "subject line" :)