A Qld lot owner would like to know who pays for accommodation when vacant possession is required for repairs to common property. Frank Higginson, Hynes Legal provides the following response.
Table of Contents:
- QUESTION: Who is responsible for accommodation costs when a lot owner vacates for a builder to carry out repairs under warranty?
- QUESTION: Can our Body Corporate demand Vacant Possession to undertake waterproofing repairs to common property? With no choice to stay in the unit, shouldn’t alternative accommodation be supplied at their cost?
Question: Who is responsible for accommodation costs when a lot owner vacates for a builder to carry out repairs under warranty?
Answer: The body corporate ought to be responsible for any displacement costs of occupiers.
Similar to incidental works that need to be carried out by a body corporate when discharging its maintenance obligation (i.e. replacing tiles when replacing a waterproof membrane), the body corporate ought to be responsible for any displacement costs of occupiers.
Relevantly, in Cilento Mooloolaba Residential [2022] QBCCMCmr 367 the adjudicator provides:
In previous cases where vacant possession has been necessary, the arrangements for entry have included the body corporate or the insurer involved in funding repair works arranging or contributing to the cost of alternative accommodation and other relocation matters.
It is apparent that any need for vacant possession of Lot 1101 relates to the maintenance responsibilities of the body corporate rather than any actions of the respondents in their capacity as owners or occupiers of Lot 1101. In those circumstances, my preliminary view it would not be reasonable for the body corporate to expect the occupiers to bear all the costs and inconvenience of obtaining alternative accommodation and the other requirements necessary to vacate the lot. Rather, I am inclined to the view that a reasonable body corporate would provide financial and/or other assistance to facilitate the vacant possession of the lot.
However, enforcing this against the body corporate may not be straightforward. It would be outside the jurisdiction of an adjudicator to award any displacement costs, so alternative (and more expensive) processes may need to be utilised. It may, therefore, first require a motion to be submitted on the basis refusing to approve the motion would be unreasonable.
Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753
This post appears in the December 2023 edition of The QLD Strata Magazine.
Question: Can our Body Corporate demand Vacant Possession to undertake waterproofing repairs to common property? With no choice to stay in the unit, shouldn’t alternative accommodation be supplied at their cost?
Our complex is located in Queensland. Water penetration remediation works have been approved by the Body Corporate through an AGM motion. The complex has a Building Format Plan and is under the BCCM Act & Accommodation Module Regulations.
The Superintendent of the remedial works has requested, through the Body Corporate and the Body Corporate Manager, Vacant Possession of the unit whilst the works are being undertaken. This could take up to 21 days to complete.
There has not been any offer or consideration of alternate accommodation during that vacant possession period. As well as the cost of securing alternate accommodation for the period of time, I also have concerns about the security of the unit and any damage to furnishings and fixtures whilst the contractors are on site.
As our bedrooms and bathroom areas are located at the opposite end of the unit and would not impact on the contractors performing their work on the terrace, I wonder why Vacant Possession has been requested. Can the Body Corporate demand Vacant Possession without alternatives being offered to undertake the waterproofing works to the terrace?
Answer: If vacant possession is needed to carry out the works, cost should be borne by the body corporate.
It is hard to challenge the basis of what works are required without a competing builder’s report.
If vacant possession is needed to carry out the works (which would seem odd if the works are limited to the balcony only) there is an argument that these costs are consequential to the works the body corporate is responsible for, and should be borne by the body corporate.
Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500
This post appears in Strata News #261.
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Question, when a body corporate is authorizing remedial works and maintenance and requires additional funds from owners due to not enough funds in the sinking fund. Is the amount required divided equally between the number of units OR should the amount be divided by the size of the units [1 bedroom and 2 bedroom etc]?
Hi,
The total should be divided by the unit entitlements ascribed to each lot. Effectively this is the second method you are suggesting. You can check the entitlements on your CMS and if you have any questions on the split you should check with your body corporate manager.