Am I liable?

@Lacrim , what you haven't mentioned is what state (geographical, not emotional) state that you are in?

 

@Ted Varrick - emotionally, distressed.

 

Sorry, its in NSW.

 

Lacrim, there is a website called Flatchat run by a bloke called Jimmy Thomso. It has a forum all about strata stuff. I reckon it might be worth making a quick post there. I bet the odd strata manager hangs around that forum.
Scott

 

That site's gold Depreciator tx - getting some good intel from it

 

Yes, it has a very limited scope - just strata stuff - but it goes very deep in that limited area.
Jimmy Thomson is the go to guy for media with strata issues. He has been waging a war against Airbnb for years and is always good for an ant Airbnb spray.

 

I think the arguments 'for' my case are strong based upon JimmyT's comments on previous posts. But I'm not sure how much his posts align to Tribunal rulings etc.

 

@Lacrim - have you sought to contact the strata managers for guideance?

 

Yes. They said seek legal advice

 

This is what I've gleaned from Flatchat.

If someone changes common property without the knowledge or permission of the Owners Corp and then sells that property, the Owners Corp inherits the changes to the common property. However, within the OC’s legal obligation to maintain and repair common property lies the implied right to restore the CP to its original state at the OC’s expense.

Quite simply, if the Owners Corporation has failed to remedy an unauthorised use of common property and the unit has subsequently been sold, then they and not the new owner “own” the problem.

Maybe I don't need to prove its original after all, just that I didn't do it (and I didn't, with 100% proof).

 

Admittedly you purchased 20 years ago, do you have any of the original brochures for the sale which show the condition of the property? BC would have no record of you having requested consent to refurbish, water board/plumbing documentation would show the hydraulics layout which was signed off & registered.

 

Yes, the photos that came with the property prove I didn't do the mods.

 

If the drainage was relocated - it would have been hard without access from below....

 

My arguments exactly as to why I don't think the previous owner did it ie it was done by the builder.

 

There's no requirement or point in waterproofing under a bath.

Tools

 

Had a chat to someone who specialises in this stuff and he said the same thing. In fact, he said recessed baths don't even need waterproofing underneath per current standards. The bath IS the membrane. Makes sense.

 

@Lacrim ,

On the limited info you have provided, firstly, check out the strata plan of your NSW lot from when you bought the unit, so you can ascertain whether or not the current layout is different or not. And it may not matter that much if it is.

If there is water penetration through the slab then the OC needs to get this addressed and in a timely manner. Who pays is an argument for later.

If your bathroom, and/or tiling is original then the OC can cough up, as it's a CP issue. Further, if the bathroom has been changed by a prior owner (ie. not you) then there should be a bylaw AND consent by that prior owner to that bylaw, to the relevant changes. ie. indemnification for ongoing maintenance of the CP by the lot owner to the OC, in which case you are liable.

If not, then the OC needs to get the issue addressed promptly.

Should the matter get to Tribunal, then, assuming there is no bathroom reno by-law, the lack of impartiality of the downstairs unit plumber, the lack of OC investigation/plumber, the unfair OC demand to rectify, and their lack of reasonableness, may get you over the line.

NOTE: If there is a bathroom reno bylaw for your lot AND your Strata Plan has a Bylaw Enforcement bylaw, then they may/will be able to pursue you for costs. If not, then they can blow it out their bottom(s).

It would be worth you having a chat with a specialist strata lawyer (note the rate is about $550/hour and this may not be recoverable from anybody depending on how things work out), if your SM and/or Strata Committee is not providing you any help. And, its a bit of a pain, but start keeping a timeline, for emails, phone conversations etc. just in case you need it down the track.

The OC threats of legal action/lost rent blah blah sounds like just a try on, as (dependent on the above) they are probably on the hook for all this stuff...

So, the OC probably need to get their crap together, (dependent on the above), as you have been more than reasonable in allowing the affected lots' plumber access to your lot in an act of good faith, and now its time for the OC get the matter addressed, and quick smart.

And you need to put your hand up to become a Committee Member at the next AGM, so you dont have to go through this again.

TV

 

@Lacrim - If all else fails, Fair Trading's newsletter has advised of a new Strata Mediation service - Applying for strata mediation

 

@Lacrim you will need to go through this process that @Scott No Mates has posted before you go to NCAT.

If you havent done it before, it sounds really complicated and scary, but it's not.

The mediator is there to help you come to an agreement with your OC, not to make an adjudication of your dispute.

The mediator will explain what the process is, speak with your OC (without your presence), then speak with you (without your OCs presence), and then speak with both of you to try and help you both reach an agreement.

Note that any admissions made in FT mediation is NOT able to be used in any other proceedings, so if someone questions your parentage, or brings up aspersions regarding your (alleged) nocturnal habits, then such things are irrelevant.

So, if you find the mediation isn't getting aware, just terminate it.

The mediator will then inform both parties that Tribunal will be able to make an adjudication, if necessary, on the matter, if an application is made by the complainant.

The correspondence that you receive from FT will not identify anything about the proceedings (eg. who said what etc), but will identify that the mediation was unsuccessful.

A copy of this (unsuccessful) correspondence is REQUIRED by NCAT for an application to be made.

NOTE: DO NOT assume that the mediator is an expert in NSW strata, but it might worth considering that every 30 minutes they have a new mediation where both parties are ambivalent to reasonableness, the Strata Management Act 2015 (assuming it's a strata issue), each other, and the mediation process itself. ie. Everybody D G A F.

TV

 

As a contrast, a mate of mine has just been through a similar-ish issue for his unit in Melbourne - his unit suffered water damage from an unauthorized spa on the veranda of the unit above his.

His position was basically "I dont care who is actually at fault between Strata and owner of upstairs flat, its not my fault and I want it rectified and compensation paid". The strata dragged it our for ages (I think it was almost 2 years) and the flat was uninhabitable for the last few months. Eventually went to VCAT and he was awarded a significant amount of money (a bit less than his costs claims, and couldn't include the costs of a lawyer either).

Again, I think the biggest barrier in his situation was the strata not being sensible.

Cheers,
Inertia.