Am I liable?

Got an urgent, complex issue with one of my properties.

My bath (shower over bath) is leaking and has caused damage to the unit below. Recent investigation pinpointed the problem to a fine crack between bath and wall. A strip of silicone will probably prevent further leaks (as long as it lasts). Simple.

BUT.... the owner below and their plumber, who I kindly granted access to when we were trying to diagnose the problem, established that there was no waterproofing under my tub. Waterproofing under the tub would probably have staved off/delayed the damage to the unit downstairs. It was also discovered, during this investigation, that the configuration of my bathroom differs from the plan when the building was built, so it's being deemed 'illegal' by the Owners Corp.

I didn't modify the bathroom. It was the way it was since the day I purchased it 20 years ago. The building was just 2 years old when I bought my unit, so the bathroom was modified by the builder without the Private Certifier or Council at the time noticing the anomaly (or caring).

The Owners Corp are now demanding I rip up the bath, waterproof under the bath at my expense and prove them its all been done within 30 days, or else....(threats of legal action, claim for past damage compensation of rent to unit below etc etc).

If the bathroom was original and didn't differ from the plans lodged, then I have a case, because the floor and waterproofing membrane (or lack thereof) is common property....I think.

Anyway long story short, am I liable and do I need to fix this completely at my expense? Is the fact that the bathroom config is different to the council plan my inherited problem and my 'Caveat Emptor'?

Thanks

 

Yes sounds like you would be liable as you caused the damage.

 

Definitely need to waterproof your bathroom - even for your own sake. Not sure about the common property argument.

 

I’m not a builder or a lawyer but...

was waterproofing even a thing 20 years ago?

Still think your liable as you caused the damage.

Perhaps try an insurance claim and use it as a chance to renovate the bathroom and get a better rent- must be tired if it is 20yo.

 

I'm definitely liable to fix the problem at the source but what I'm asking is whether I'm liable to make good an original bathroom and waterproof it bc the floor is essentially common property.

 

Claim under the builder's warranty. Oh. .. That's only 7 years.

Sue the builder for bit putting a membrane down. Statute of limitations is only 7 years.

The slab is common property but the membrane is in your unit, just like paint.

Sad per @housechopper2 it's a refurbishment opportunity but I would try it on with insurance sad you have a leak affecting common and private property.

 

20 years ago was 1998, not exactly the dark ages. Waterproofing definitely was a thing.

There's probably a claim in here for strata insurance and individual home contents insurance.

 

Its not common property

Might be claimable on insurance , look up concealed leaks

 

http://www.bannermans.com.au/files/What_is_common_property_FINAL_09_05_14.pdf

C'mon guys, gotta be a lawyer on this forum who's au fait with this stuff. My research says common property.

This is not an insurable event - its remediation/maintenance or to be more specific, rectification. It's not 'damage'.

 

@KateAshmor?

 

Strata titled; if your property is the cause the BC/OC will hold you liable to pay the excess on the strata building insurance claim (unless, depending on which state legislation you're under, it affects more than 1 lot then the BC/OC may be liable to pay the excess), they can't make you do anything in your unit though.

 

The resultant damage, eg. everything other than the part that failed, will be covered.

Example: even if bath had no water proofing (and it may not even be required to do so), if the plumbing is working it's fine. When the plumb dinger fails and you have a leak, the plumb dinger is the 'maintenance issue' that won't be covered but the resulting damage will be.

 

*chortle*

 

Is it just the layout that's different, with the same fittings as in other units? I'm wondering how you 'know' the bathroom is original?

 

You're implying they'll never get away with this threat? Or I should be worried?

 

Well, its a long and convoluted story but I have enough info to present a picture beyond reasonable doubt that it's original if/when this goes to the Tribunal. The config is the only thing that's different.

I can't PROVE it though. And that's what I'm worried about. That things may not go my way.

 

(Firstly, join the strata committee.)

Are the tiles and fittings the same as the other units? The original purchaser could have requested customisation. You could always ask the original owner if they were still around (long shot).

I don't think the council plan means much as there are variations all the time. The original waterproofing is common property in NSW.

I wonder if there is a potential waterproofing issue in the other apartments as well.

If you have a solid position beyond reasonable doubt, I would ask for a meeting to be called to discuss the matter. Exchanging emails will just entrench their position.

 

Hindsight is 20/20

Tiles are identical. Another reason why I think its original. But will the Tribunal believe me or just side with the plan?

No can't trace him. Tried to but just can't do it. I have the details of the trust he bought it under but that's it.

I agree with you. But the OC is banking on this because its absolutely pivotal to their argument ie the registered strata plan differs from my unit's layout, therefore I/the previous owner is guilty of modifying the unit.

So the crux is, will the Tribunal believe me and the facts that neatly line up that point to the builder doing the wrong thing and/or the PC or council not doing their job(which I believe, is the truth), or will they just default to the strata plan not being the same as my unit, and therefore deem its not 'original'?

Any Tribunal members on this forum lol?

There have been a couple in the balcnoies ie no waterproofing, but not in the bathrooms (yet) with the exception of mine.

It's beyond salvation now (I won't go into details). The only option left now is Tribunal. It's all up to them. And I can't afford to lose because if I do, the OC are chomping at the bit to go after me for xyz $.

 

I don't think you have much to be concerned about, water leaks happen all the time in unit blocks and yeah it sucks but that's life. From what you've described of the OC/Committee, it's the blind leading the blind if they're making 'threats' and all this sort of rubbish, sounds like they literally have no clue about the law, the legislation, and the practical applications - what's required of an OC to actually get anything done, etc.

 

Blind is too kind a word. They're pretty vindictive - at least 1 or 2 members are. Never knew this before and I thought they were ok, but now I've seen their true colours.