Aside from finding a hole in one’s wine glass through which the contents have escaped, there is surely nothing worse than a hole in the roof above one’s lot which the Body Corporate is aware, but just hasn’t gotten around to fixing……

Unless of course it rains……

Quite a lot…..

Those exact circumstances could be quite trying for most of us.

I’d like to say that in the case of Amersham Mews [2015] QBCCMmr 444 (21 September 2015) , things improved for the lot owner, but in fact they didn’t.

Timing really is everything when it comes to roof repairs. The lot owner discovered holes in the roof above her lot and reported those to the Body Corporate on 25 June 2012.

The Body Corporate arranged for a number of quotes and engaged a contractor however that contractor failed to undertake the work. The lot owner, not to be dissuaded, followed up the Body Corporate Manager to check on whether she should organise the work herself or leave it to the Committee and that’s where the fight started.

Following a significant rain event, the lot owner wrote to the Body Corporate asking for $7,532.00 to replace her lounge room carpet, ceiling and her entertainment unit.

The Body Corporate’s insurance company denied the claim stating the Body Corporate could not be held responsible for any damaged contents before denying the Body Corporate its cover due to the defect in the roof being known to the Body Corporate prior to the rain event.

Following that, the lot owner wrote back to the Body Corporate seeking a higher amount of compensation on the basis the earlier lower amount was sought in order to encourage a quick settlement.

From there, the lot owner’s luck did not improve.

She received correspondence from the solicitors for the Body Corporate (not us) confirming the Body Corporate acknowledged it *may* be liable but denying the amount of her claim because she had not taken any steps to mitigate her loss. Or in English – because she had failed to move her entertainment unit and protect her carpet from getting rained on, she was not entitled to the entire sum which she claimed was payable. Their offer was for a much reduced sum.

Unsurprisingly the lot owner rejected the offer and filed her application in the Commissioner’s Office where Adjudicator Dowling held (amongst other things):

  • The Body Corporate was liable to the lot owner and was ordered to repair/replace (at its cost) the lounge room ceiling, cornice and carpet and to replace the lot owner’s entertainment unit (or give her $1,197.50 if they could not agree on a suitable replacement);
  • Although the Committee may say the lot owner (as a committee member) had a duty of care to ensure the building was maintained in good condition – the Body Corporate and not the lot owner had the duty to maintain the common property roof in good condition;
  • There was no basis for reducing her claim because she did not take steps to repair the roof of her own accord;
  • In terms of the damages payable to the lot owner – section 281 of the Act provides for “reimbursement” which meant that the common law understanding of damages and paying the lot owner a “reasonable amount” or an amount based on what the ATO or an insurance company might value the carpet at were not persuasive. The lot owner was to be reimbursed for the cost of replacement items.

And so given the rainy season is upon us again – the take home lesson is that Body Corporates need to take prompt action when a hole in common property roofing is reported.

This is for two reasons:

  1. We’ve yet to see a case in which a hole in the roof has simply repaired itself when left to its own devices (unlike wine, a hole in the roof does not get better with age); and 
  2. Insurance companies do not need a leg up when it comes to denying Body Corporate insurance claims.

We look forward to helping your Committees tackle common property issues such as these. Please do not hesitate to give us a call.

Warm Regards

Andrew Redburn

Disclaimer: Reliance on content.
The material distributed is general information only. The information supplied is not and is not intended to be, legal or other professional advice, nor should it be relied upon as such. You should seek legal or professional advice in relation to your specific situation.