Who’s responsible for common property defects?

Investing or living in multi-owed properties means adhering to strict rules and requirements, such as a duty to maintain and repair the common property. This means, in many circumstances, once committees and owners become aware of defects on the common property, they can’t ignore it. In fact, they have an obligation to repair and maintain the building’s value and to keep all those who come and go safe. The duty to repair the common property is considered a statutory obligation. This results in committee and owner obligations to fix common property defects. Should something go wrong, and it was a foreseen possibility that the defect would cause this incident to occur, the committee could be found liable.

When it comes to committee and owner obligations to fix common property defects, regulations vary across jurisdictions. It is argued in some courts that the statutory obligations to rectify or fix a defect only applies to defects that are considered repairable. And that when a defect isn’t repairable, such as when an entire major element needs to be replaced and re-installed, then the statutory obligations to fix might not apply.

To answer the common question of who’s responsible for common property defects, this should follow a democratic process, meaning that defects on common property are the issue of all owners. Defect rectification processes can be a long and hard road as owners need to ban together to manage and fix the issue. Committees and owners will need to vote on how they fix the issue and how they manage the reporting and rectification process.

The obligations to fix building defects across states

New South Wales
Owners corporations are required to maintain and repair the common property. However, the owners corporation can defer compliance in the event that action has been taken against a responsible party if the deferment does not affect the safety of the building or common property. If the owners corporation fails
in their duty to repair and maintain the property, an affected owner may recover damages, or any losses suffered. There are provisions relating to building defects in the Strata Schemes Management Act 2015
(Section 189 to 215) including, requirements relating to inspection reports and building bonds. .

Queensland
Body corporates must maintain common property. For properties created under building format plans,
the body corporate is required to maintain railings, parapets and balustrades on the common property boundaries, doors, windows and fittings situated on common property boundaries, roofing membranes that are not common property but provide protection for lots or common property, foundation structures, roofing structures and essential supporting framework.

Victoria
Owners corporations must repair and maintain the common property and related services, chattels, fixates, and fittings.

A tribunal or court might rule for owners to fix and within a set time frame

Given defects are guided by a legal process, there is always the chance that once defects are known, and the issue goes to a tribunal or court, that the court could rule that the committees and owners are responsible. Here, the court could order the time and way the defects should be fixed, and to what standards. Therefore, committee and owner obligations to fix common property defects can be directed or enforced by the courts. Defect rectification processes are often long, highly stressful and expensive. The mental, physical, and psychological impacts can be huge, and a cost-benefit analysis should be undertaken. For example, your defects might be worth $250,000, but the legal fees may be $150,000. Rather than arguing or pursuing litigation for the foreseeable future, owners and the committee may vote to raise a special levy or fee and undertake the repair work themselves; this would require a majority vote.

If you’d like to find out more about building compliance for your strata property, download our FREE Community Living guide. Or for a consultation to review your common property insurance by our CommunitySure insurance team, click here.