Asset Protection - now more important?

Discussion in 'Legal Issues' started by thesuperman, 22nd Apr, 2020.

Join Australia's most dynamic and respected property investment community
Tags:
  1. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    Seems the Mascot Towers repair bill is to hit $53 million which is very sad news for all involved.

    This has got me thinking if the strata company spreads out $53 million to all owners and invoices them and the owners don't pay, can the strata company take legal action or bankrupt the people?

    I believe all owners are jointly and severally liable in a strata complex. Eg. if someone falls and sues (say insurance won't cover and pay for whatever reason) and none of the people have any money except for one person with $10 million in cash, they can just get the money from that one person who's rich with $10mil in cash. Is my understanding correct?

    Seems we need to consider asset protection even more when buying anything with strata.
     
  2. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

    Joined:
    9th Jun, 2006
    Posts:
    30,887
    Location:
    Australia wide
    Interesting question, I don't know the answer to this. Any strata lawyers out there?
     
  3. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    I'm surprised that nobody else has made any comments in this thread, as I'm sure there are lots of people here who own property as part of an owner's corporation (body corporate). Would've thought more people here would be concerned about their own asset protection of what they own.

    I'm starting to think it's not good to own any strata properties in personal names or have one entity to own many strata properties. Any thoughts? Imagine being the one person who gets hit with the entire $53 million bill for Mascot Towers just because you were asset/cash rich and everyone else were mortgaged to the hilt! :eek::eek::eek:

    I've done some Googling and have found another unfortunate and concerning case about joint & severally liability with owning a strata property: UnitCare | Best Practice | Strata Insurance Common Property

    "A Strata Corporation was underinsured by approximately 75%. A major loss by gas explosion in the basement caused so much damage that it exceeded the total sum insured . This meant that all owners personally paid many $10,000s to make up the shortfall in the insurance payout. Under the Strata Titles Act all owners are jointly and severally liable for any shortfall."

    "Under the Strata & Community Titles Acts all owners are jointly and severally liable for any shortfall in the common property building sum insured, when reinstating the building(s)."


    Also came across this: The Problem We Are Here to Address - Strata Community Insurance


    "A Body Corporate, Owners Corporation, Strata Company, Community Association or other similar legal entity is what owners become members of when they buy into a Strata or Community title scheme. As a member, you share in both the assets and liabilities of the entity with all other owners registered on the scheme at that time.

    However, very few owners understand the inherent exposures associated with the legal structure of these entities, including the unlimited liability of their members. Each member has a joint and several liability to the entity, and unlike a limited liability structure (e.g. like most companies) the exposure can be far higher than the amount invested. As an owner, you face additional financial contributions (or special levies) to meet unexpected debts and liabilities, and if your neighbour as a member defaults or bankrupts, then the balance of members are required to pick up the shortfall."
     
    Last edited: 2nd May, 2020
    Terry_w likes this.
  4. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

    Joined:
    9th Jun, 2006
    Posts:
    30,887
    Location:
    Australia wide
    Best to avoid strata altogether I think. The loss of control is a major issue and this brings added risk.
     
    Stoffo and thesuperman like this.
  5. skater

    skater Well-Known Member

    Joined:
    18th Jun, 2015
    Posts:
    5,601
    Location:
    Sydney
    I detest strata units, especially large high rises. I stick to houses.
     
    Terry_w likes this.
  6. Tony3008

    Tony3008 Well-Known Member

    Joined:
    20th Jun, 2015
    Posts:
    721
    Location:
    Docklands, Victoria
    This is from the Victorian Owners Corporation Act which suggests not

    28. Liability of lot owners
    (1) The owners for the time being and any purchaser in possession of, and any person entitled to receive the rents and profits from, a lot are liable to pay any outstanding fees, charge, contribution or amount owing to the owners corporation in respect of that lot.
    (2) A lot owner is not liable to pay or contribute to the funds of the owners corporation a proportion of any amount required to discharge a liability of the owners corporation exceeding the lot owner's lot liability
    .
    IANAL etc
     
    Terry_w likes this.
  7. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    What happens if some random person falls and sues and wins a court case but insurance won't cover and pay for whatever reason, or the amount awarded by the court is above what has been insured. Who is liable and who has to pay then? Eg. the courts awards $50 million dollars to the plaintiff, insurance won't cover it. So nobody is liable for it? All owners in the building are in the clear and have nothing to worry about?
     
    Last edited: 3rd May, 2020
  8. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    This would suggest that if Mascot Towers have 53 owners and the repair bill is $53 million, the strata just issues a special levy notice of $1million to each owner, they each have to pay $1million and are legally on the line for that $1mil.
     
  9. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

    Joined:
    9th Jun, 2006
    Posts:
    30,887
    Location:
    Australia wide
    The person who caused the accident and or owner of the land.

    Never heard of an award that large outside of America
     
  10. Stoffo

    Stoffo Well-Known Member

    Joined:
    14th Jul, 2016
    Posts:
    2,706
    Location:
    Sydney
    Unfortunately it is never ever a split per lot !
    It would be apportioned per actual lot entitlements :eek:
    So 1br owners might only get a $680k bill
    But 3br owners might get a $1.3m bill :(

    Regardless, if buying into a recently built highrise unit block @thesuperman is right, it would be worth looking into options of alternatives to personal ownership to avoid liability (sure you would lose the purchasing and loan costs, but this may be far cheaper than the bill facing Opal Tower owners !).
     
  11. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    Owners of the land would be every apartment owner of the building as they are all part owners of the land. Therefore all owners will be liable to pay if some random person falls, sues and wins. But each apartment owner will have to pay only up to their proportion as a lot owner, not 1 cent over this amount. So this is not joint and severally liability then, basing it on my understanding of @Tony3008 post above "Victorian Owners Corporation Act" Section 28. (2)
    This contradicts what was said in my 2nd post where apparently: Under the Strata Titles Act all owners are jointly and severally liable for any shortfall."
     
    Last edited: 3rd May, 2020
  12. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

    Joined:
    9th Jun, 2006
    Posts:
    30,887
    Location:
    Australia wide
    Are strata owners the legal owners of common property? I think there is a separate company that owns this, usually a strata corporation. I don't know much about strata.
     
  13. Terry_w

    Terry_w Lawyer, Tax Adviser and Mortgage broker in Sydney Business Plus Member

    Joined:
    9th Jun, 2006
    Posts:
    30,887
    Location:
    Australia wide
    What state are you talking about? There doesn't appear to be any Strata Titles Act in NSW.

    There relevant legislation might be
    STRATA SCHEMES MANAGEMENT ACT 2015
    STRATA SCHEMES MANAGEMENT ACT 2015 - As at 10 April 2020 - Act 50 of 2015
     
  14. thesuperman

    thesuperman Well-Known Member

    Joined:
    27th Jun, 2015
    Posts:
    404
    Location:
    Australia
    Looks like apartment owners can't be personally liable to pay if some random person falls, sues and wins. The Owner's Corporation is the only one liable to pay. I'm guessing insurance refuses to pay or the amount awarded is above what is insured the Owner's Corporation would just wind up and a new one would start up.

    From here: Can an Owners Corporation be Sued? - Jamesons | Strata Managers Sydney

    "One of the great advantages of being an owner in a strata scheme is the fact that owners aren’t personally responsible for what happens in common areas. But that begs the question – who is?"

    "This means that, for most liabilities arising as a result of issues in the common areas or from common property, the Owners Corporation will be liable, rather than individual owners within the scheme. Fortunately for owners, a lot of these liabilities will be covered by strata insurance."