Terrace Access Issues End up Costing Everyone

Owners Corporation 446158A v Dunn (Owners Corporations) [2017] VCAT 1892

Quick Read

This 2017 VCAT decision is about a messy dispute in a Melbourne CBD strata title building about waterproofing repairs needed to be done in a strata lot terrace, access for the work and damages for water entry. The history is messy and complex but some key facts are; the strata building needed to do work to two adjoining terraces; access to the terraces was arranged by agreement with the strata owners; on agreed to access via the inside of their apartment for both terraces; the other strata owner only agreed to access to the terrace; works started but didn’t finish because the contractor went into liquidation; after works restarted and one terrace was finished that strata owner refused further access via their apartment and the other owner relied on the agreement to refuse access via his apartment; the dispute dragged on; more work was needed as things had deteriorated and caused damage inside the strata lot; so the strata building and the strata owner ended up in VCAT. The key issues for VCAT were whether the access agreement remained binding and prevented access to the apartment, and, if the strata building [or the strata owner] had to pay for the increased repair works and/or damage to the strata lot. After reviewing the history, the access agreement and expert reports about the works and damage VCAT decided that the agreement between the strata building and strata owner to do the terrace works without accessing his apartment was still binding so no access order should be made, that the strata building’s failure to do the work in a reasonable time originally and the strata owner’s intractability over work details meant they were equally responsible for the delay and should share the cost of the extra terrace repair works, but that the strata building should pay for the damage to the strata lot. Effectively splitting the repair costs between them. The decision reminds strata buildings to be careful when making access arrangements to do work through strata lots in case circumstances change and that strata buildings and strata owners may both end up paying for the extra costs when works are delayed if they act unreasonably to cause the delays or extra works.

Implications

Agreements between strata buildings and strata owners about works and access will be strictly enforced by VCAT.
Even though this agreement became unworkable through another owner’s change of mind, that didn’t frustrate [legally speaking] or end the access agreement.
The strata building could always do the terrace works by getting access in other ways, even if they were more difficult and costly.
Because the strata building had agreed in a binding way not to access the strata owner’s apartment to do the works, it could not get an access order now.

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Full Report & Case Details

This 2017 decision by VCAT is about a messy dispute in a Melbourne CBD strata title building about waterproofing repairs needed to be done in a strata lot terrace, access for the work and damages for water entry.

So, the history matters and is as follows.

Two adjoining strata terraces [at Apt 701 and Apt 702] needed to be waterproofed because of original building defects and to stop water entering those strata lots and strata lots below them.
The strata building could not get agreement about strata lot access to do the work so started VCAT proceedings.
As a result, access was agreed with Apt 701 to the interior and terrace for the works and with Apt 702 to the terrace only [as it would use Apt 701 for general access] on conditions including that they would be done within 4 to 6 weeks.
Work began in 2013 but there were many issues about the work between the strata building and the Apt 702 strata owner that dragged them out. Both argued the delay was each other’s fault.
In 2014 the contractor went into liquidation and the works in Apt 701 and Apt 702 were not finished.
The strata building restarted works but when they were finished in Apt 701, new access problems arose.
The Apt 701 owner withdrew agreement for access to the Apt 702 terrace from his strata lot and the Apt 702 refused access via the interior of his strata lot, relying on the earlier agreement.
So, there was a stalemate and the works could not proceed.

The dispute ended up before VCAT with the strata building asking for access to Apt 702 to complete the works and the strata owner seeking damages for ### and ###.

The primary issues for VCAT were the status of the 2013 agreement for access and the terrace works, whether the Apt 702 strata owner had to give access and what, if any, money and other damages were payable by the strata building to the strata owner because of the incomplete and delayed works. VCAT also had to consider who caused the delay in the works.

In making its decision VCAT reviewed the history of the terrace works, communications between the strata building and strata owner and the expert material about the terrace and other works that were now needed and concluded …

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Keywords

#VIC #VCAT #repairs #access #agreement #frustration #damages #fairness #2017