Damage to Common Property: Body Corporate Attempts to Hold Owner Responsible

We recently read about a case that determined whether a lot owner is liable for damage to common property allegedly caused by their tenant.

What Happened?

On 10 March 2011, 2 Committee Members from a Queensland scheme claim they witnessed a tenant from a Lot moving heavy furniture down Common Property stairs.

Shortly after this instance, scratches and gouges were found on the wooden stairs’ treads which was claimed to be caused by the tenant.

The Body Corporate claimed the $1,064.80 rectification costs from the owner of Lot 10 pursuant to the By-Laws. The By-laws entitle the Body Corporate to recover expenditure for rectifying damages caused by a breach of the Act or by-laws by an owner, tenant, invitee etc.

Due to the risk of affecting future premiums, the Body Corporate decided not to claim on insurance.

The Owner of the Lot denied liability for the damage due to the Body Corporate not reporting the damage until six weeks after the event occurring and the Body Corporate presenting no photographic evidence of the damages.

What Was the Outcome?

The Owners of Lot did not personally contravene the by-laws and they did not personally cause any damage to the stairs. The adjudicator did not consider that By-law is valid to the extent that it purports to impose absolute responsibility and financial liability on an owner for any breaches of the by-laws by occupiers, invitees and others. He made the decision that the Body Corporate is not entitled to hold the Owners of Lot liable for the conduct of their tenants.

What Options Were Recommended to the Body Corporate?

The adjudicator recommended two options to the Body Corporate.

Option 1: The first option was to claim through insurance, noting that the insurer may well have sought reimbursement from the former tenant. The adjudicator expressed that it is unclear if it is too late for the Body Corporate to pursue an insurance claim.

Option 2: The second option recommended was to take action against the former tenant. However, this option may be difficult because of the now limited evidence of the damage or proof that the person caused the damage, and that apparently no attempt has been made to pursue her in nearly two years

How Can You Avoid Similar Situations from Occurring in Your Scheme?

It may be difficult for owners to know how to react when situations like the one above occurs in their scheme. At SSKB, we have put together our top 3 tips for dealing with damages:

  1. Take Photos
    As highlighted in the case above with limited evidence it is difficult to prove what you are claiming happened actually occurred. Therefore, our number one tip is to take photos.
    Most smart phone cameras will store the date and location of a photograph taken on the phone – we suggest taking multiple images to be safe!
  2. Contact Your Body Corporate Manager
    Having an experienced Body Corporate Manager will give you the tools to deal with any issues when they arise.
    At SSKB, our Community Managers are experienced in dealing with all types of situations and will work with your Committees to ensure the situation is resolved.
  3. Source a Witness
    If you see anything out of the ordinary in your scheme that may have caused damages, make enquiries as to whether there are any witnesses to the incident.

There are many benefits to Strata living and it is becoming a more popular lifestyle throughout Australia. However, when negative situations such as damage to common property occur, it pays to have an experienced Strata company who is willing to help resolve your issues.

To see how easy it is it make the switch to SSKB, click here to contact us today.

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