maintaining common property

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The Strata Manager’s Role in Maintaining Common Property


An owners corporation’s duty for common property is three dimensional

Duty of Care

Duty to Maintain &

Repair

Duty to Ensure

Health & Safety

The common law of occupiers liability

S.46 OCA 2006OHS Act 2004


1. Defining common property

• Tiles on walls and floor?• Claw foot bath?• Shower screen?• External wall?• Internal wall?• Cornices?• Light fitting?• Paintings?• Pipes?


2. The statutory duty to maintain and repair

The 5 principles from Seiwa v SP 35042 [2006] NSWSC1. Must means ‘must’2. Proactivity required3. Fix defects first, sue later4. Applies to all the

common property5. Lot owners can sue for

breach


3. The common law duty of care goes beyond lot owners

Visitors

Trespassers

Tenants Purchasers


Reasonable care includes compliance with Australian Standards when built

• Railings 50 mm below Australian Standard when built

• Drunk “buck” fell when squeezing past wrestling mates and became a paraplegic

• $3.21m damages against owners corporation reduced by 30% contributory negligence; Toomey v Scolaro Concrete Constructions and Ors (2) [2001] BSC 279


Reasonable care at common law does not include retro fitting for changing Australian Standards

• To take reasonable care to protect people from risks that can be foreseen and avoided; Ridis v SP 10308 (2005) NSWCA 246

• A majority decided some form of proactive management was required of owners corporations because of s.62 SSMA 1996 but Australian Standards about glass are not retrospective


Reasonable care includes adopting new non-structural Australian Standards

• A carpet off-cut tripped a man who fell down the stairs

• A $25 non-slip mat recommended by a post-construction Australian Standard would have avoided the accident

• Home unit blocks with higher density require greater precautions than an ordinary home; Morgan v SP 13937 (2006) NSWSC 1019


Strata manager v owners corporation• Wong v Body Corporate 1 Plan No

433814P (2009) VCC 0100

• Slip and trip at the dentist. Strata manager responsible for routine and minor repairs and maintenance and general advice

• No delegation of responsibilities

• Manager arranged safety report that did not recommend non-slip treatment for tiles

• Body corporate 100% responsible vis-à-vis strata manager


4. Residential common property is always a workplace at some point

• Occupational Health & Safety Act 2004 applies to owners corporations

• OC managers and committee members are ‘officers’ and have personal duties under OHS

• Variable degrees of duty – high risk include schemes with employees and / or commercial property


5. Managing difficult owners about maintenance

• Max penalty for OHS $1.1m fine and / or 10 years jail

• Directors & Officers insurance does not cover OHS prosecutions and fines

• Lot owners can sue OC for economic loss (s.46)

• OC is an unlimited liability organisation


What it takes to be acquitted


About the PresenterMichael Teys is the Founder and Principal Lawyer of TEYS Lawyers. He has a

Bachelor of Laws and practices exclusively in the area of strata and community title

law. He is a Fellow of the Australian College of Community Association Lawyers. He

was formerly an Adjunct Lecturer with Charles Sturt University. He has also been the

CEO of a publicly listed company and one of Australia’s largest strata management

companies managing over $8B of residential and commercial property. Michael

appears weekly on SKY News Business Channel's Property Success with Margaret

Lomas and is a regular panellist for the property edition of Your Money, Your Call for

the same channel. You can read Michael’s blog at www.michaelteys.com and follow

him on Twitter at @MichaelTeys.com

Teys Lawyers practice nationally in strata and community title law representing owners corporations, bodies

corporate and apartment owners. The firm’s practice groups include building defects, strata community

disputes, strata title property law, by-law / rules and levy / fee collection.

TEYS Lawyers provide an entirely cloud based working platform for their team. The firm provides flexible

working arrangements and has remote working locations in Queensland and Victoria.

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