There is a leak in the roof of my lot that the Owners Corporation has not fixed. Have they breached their duty to maintain and repair common property?

The duty to maintain and repair common property is imposed by Section 106 of the Strata Schemes Management Act 2015 (NSW) (the Act). This issue was considered in Shum v Owners Corporation SP30621 [2017] NSWCATCD 68 in which lot owner, Mr Shum, sought to recover statutory compensation from the Owners Corporation for loss suffered due to a damaged common property roof.

In this case, the NCAT considered whether the Owners Corporation breached its duty to maintain and repair a damaged roof that caused water penetration to Mr. Shum’s lot. Mr. Shum suffered a loss of $55,943.24 arising from lost rental income, water and council rates and interest on rent.

Following the authority of Fligg v The Owners Strata Plan 53457 [2012] NSWSC 230 [16], the tribunal declared that the Owners Corporation had failed to meet the strict requirement of Section 106(1) of the Act to maintain and repair common property. The authority of Hodson JA’s judgement in Ridis v Proprietors of Strata Plan 10308 (2005) 63 NSWLR 449 [5] supported this conclusion,

“as soon as something in the common property is no longer operating effectively…there has been a breach”.

The tribunal consequently concluded that Mr. Thum satisfied the requirements of Section 106(5) of the Act that entitles him to recover compensation for a breach that causes reasonably foreseeable loss. They ordered the Owners Corporation to pay Mr Shum the sum of $55,943.24.

Therefore, if there is any damage to common property, the Owners Corporation has breached the duty imposed by Section 106 of the Act.

The marble dome roof of the Taj Mahal. You would not want a leak in this roof.