Published on March 5, 2014
The Strata Manager’s Role in Maintaining Common Property © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
An owners corporation’s duty for common property is three dimensional Duty of Care The common law of occupiers liability Duty to Ensure Health & Safety OHS Act 2004 © Copyright 2013 Teys Lawyers Duty to Maintain & Repair S.46 OCA 2006 www.teyslawyers.com.au
1. Defining common property • • • • • • • • • © Copyright 2013 Teys Lawyers Tiles on walls and floor? Claw foot bath? Shower screen? External wall? Internal wall? Cornices? Light fitting? Paintings? Pipes? www.teyslawyers.com.au
2. The statutory duty to maintain and repair The 5 principles from Seiwa v SP 35042  NSWSC 1. Must means ‘must’ 2. Proactivity required 3. Fix defects first, sue later 4. Applies to all the common property 5. Lot owners can sue for breach © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
3. The common law duty of care goes beyond lot owners Purchasers Tenants Trespassers Visitors © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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)  BSC 279 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
Reasonable care includes adopting new nonstructural Australian Standards • A carpet off-cut tripped a man who fell down the stairs • A $25 non-slip mat recommended by a postconstruction 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 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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 © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
What it takes to be acquitted Advise the committee of their personal responsibilities for WHS - See resource M3.1 attached Committee motion put for annual safety inspection / review - See resource M3.2 attached Quantify the cost of your recommendation for a safety inspection report Undertake maintenance and repairs to reduce or eliminate risk Indemnities required for all committees who fail to accept your recommendation – See resource M3.3 Tell the workers about the safety issues at the building © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
About the Presenter Michael 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. © Copyright 2013 Teys Lawyers www.teyslawyers.com.au
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