VIC: Q&A Owners Corporation Insurance Requirements Victoria

Damage to motor vehicles is typically not covered under strata insurance policies. Strata insurance primarily focuses on insuring the building structure and common areas rather than individual vehicles. Therefore, car owners cannot rely on strata insurance to cover damage to their vehicles.

For this reason, the policy that should respond to damage to vehicles is car insurance. The insurer will assess the claims in accordance with their terms and conditions. If the insurer determines the owners corporation is liable, they have the ability to pursue a recovery against the insurer.

Strata insurance can respond under the public liability section when the owners corporation is legally liable for the damage.

Determining liability in these cases is not always straightforward. When a demand is made to the owners corporation, it may be referred to the insurer for a legal liability claim assessment. The assessment is typically conducted on a case-by-case basis and can involve solicitors and, in some instances, judges if the claim escalates to court.

An example where the owners corporation could be found to be liable is in the instance of a know rat infestation where the owners corporation should have reasonably known about it but failed to take appropriate measures. They may be held liable for the resulting damage to vehicles.

When faced with rat damage to a vehicle in an owners’ car park, it is crucial to understand that strata insurance does not cover such damages. Car owners should initiate a claim with their motor insurer, who will then assess the liability of the owners corporation. While owners corporations have a duty of care to vehicle owners, that duty of care is not unlimited and will unlikely extend to things beyond their control. Ultimately, each claim is evaluated on its own merits, considering the specific circumstances and available evidence.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in the August 2023 edition of The VIC Strata Magazine.

Question: A tenant sustained damage to their car from a leak in the car park. Should they contact the lot owner or the committee?

A tenant in our apartment building sustained damage to the paintwork on their car from a leak into the lot’s car park. The parking space is on the lot’s title.

The tenant contacted our committee and strata manager to seek compensation for the minor damage. Is our owners corporation committee obligated to engage directly with the tenant, or should we refer them to the lot owner?

If we follow this process, the lot owner will be aware of the issue. The owner can then deal with our committee if there is any claim on the owners corporation.

Answer: The lot owner is not a party to this dispute.

The dispute is one between the owners corporation and tenant. The lot owner is not a party to this dispute (even though they rent their lot to the tenant).

Car park leaks frequently result in claims under the public liability section of a policy, which specifically covers incidents involving injury or property damage to others which the owners corporation legally becomes responsible for.

The lot owner’s involvement will probably not benefit the process of managing this issue. If the owners corporation believes the costs for the claim are unreasonable, they can get an alternate quote, or if the claim amount is small, they can choose to pay the settlement without making an insurance claim.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This post appears in the June 2023 edition of The VIC Strata Magazine.

Question: We recently found inactive termite damage in a common property external wall. We provided an invoice for our costs, but the owners corporation says we need to pay any insurance excess. Is this correct?

We recently found inactive termite damage in an external wall. A committee member advised us to contact the owners corporation and keep invoices for the urgent work.

The owners corporation denied the external wall was common property despite owners corporation members checking plans and clearly saying it was. Eventually, they agreed.

We provided an itemised invoice for our costs to the owners corporation. They say we need to pay any insurance excess.

Is termite damage in the external common property walls covered by the owners corporation? If so, should the owners corporation also be responsible for the excess?

Answer: For events that are not claimable, the property owner is responsible for the costs associated with the maintenance of that property.

Termite damage is an exclusion that applies to all strata policies that I am aware of. The excess would only ever be payable in a claim where the event was not excluded.

For events that are not claimable, the property owner is responsible for the costs associated with maintenance of that property.

In the case of an external wall, it is generally common property (unless the plans of the building provide otherwise) and, therefore, would be the owners corporation’s responsibility to maintain.

If the event were considered a claim, then the owners corporation would be liable for the excess if it was deemed common property.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This post appears in the June 2023 edition of The VIC Strata Magazine.

Question: If all units in our strata scheme are lost due to fire, can we take a cash settlement from our insurer instead of rebuilding?

We are part of a strata body corporate consisting of 4 attached units. If all the units were lost (e.g. burnt down), can one of the units take a cash settlement from our insurance company instead of rebuilding? Can they take the cash and leave without rebuilding and removing the debris etc?

Can they also take a cash settlement if it was just one unit lost?

Answer: In a total loss, the owners could in theory take a cash settlement, remove the debris and sell the vacant lot.

Legislation in all states and territories in Australia requires that strata buildings are insured for full replacement value – there is a good reason for this.

In a total loss, the owners could in theory take a cash settlement, remove the debris and sell the vacant lot.

This may sound like a sensible option, but in practice, it may be more difficult to implement.

Such actions would require the owners corporation to dissolve itself. Section 32 of the Subdivision Act 1988 requires the owners corporation to have unanimous agreement of all lot owners to do so. Likewise, the same unanimous agreement would be required if only one lot was fully damaged and the owners corporation or lot owner wanted to extinguish their lot entitlement.

In large developments, a unanimous agreement may be hard (but not impossible) to reach, which is why rebuild may be in some instances the only available option.

If the owners corporation were to have a major claim, we would recommend appropriate legal and town planning advice is sought so that the owners corporation can consider all available options.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This post appears in Strata News #634.

Question: I’ve recently purchased a unit. After settlement, the vendor has contacted the owners corporation insurer requesting a refund of their insurance policy payment. Does this cancel my insurance?

I bought a unit in a 4 lot strata this year. There does not appear to be any operative owners corporation. The vendor has contacted the insurance company seeking a refund of the owners corporation insurance premium. This policy was taken out prior to the sale of the unit. The full policy was paid for by the previous owner of my unit as she had no contact with the other 3 owners. Once the refund has been paid, the building will be uninsured. What are my options?

Answer: If the property has already settled, the previous owner does not have the right to approach the insurer seeking a refund of premiums and you should make contact with the insurer to ensure this does not occur.

No insurer will provide a partial refund for an insurance premium associated with one lot in a property.

The insurer generally will only provide a refund in the event the policy is cancelled in full and this cancellation is authorised by the owners corporation.

If the property has already settled, the previous owner does not have the right to approach the insurer seeking a refund of premiums and you should make contact with the insurer to ensure this does not occur.

The correct way to apportion insurance costs is through the settlement process and the previous owners conveyancer should factor this into the settlement of Owners Corporation money.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This post appears in the November 2022 edition of The VIC Strata Magazine.

Question: One owner of two lots in our 6 lot strata block refuses to pay their proportion of the strata insurance renewal. Is VCAT our only option? Where does this leave us regarding compliance with legislation?

I’ve recently purchased a unit in a block of 6. One owner organises strata insurance. 4 owners have paid their portion of our insurance renewal. The remaining owner of the other two units is refusing to pay their share. We’ve lodged two thirds of the payment for the strata insurance. What is our recourse here? Is VCAT the only option?

My bank has refused to insure just my property as it’s under a strata title, however, I’m not convinced that the strata insurance policy is valid, as the whole amount has not been paid.

Answer: An owners corporation must take out insurance for all buildings on common property.

In accordance with Division 6, Section 59 (1) of the Owners Corporation Act 2006, an owners corporation must take out insurance for all buildings on common property. Section 55 also states that nothing in the Act limits the right of an owner to effect a policy of insurance for their building and their interest in common property.

In regards to recovery of fees from the lot owner, please refer to Part 3, Division 1, Section 23 (1 c) where in an owners corporation may set annual fees to cover insurance. Please also refer to Section 30, 31 and 32 in regards to fee notices required.

An independent, professional owners corporation Manager would ensure that the levies are struck to cover the requirements of the owners corporation.

You may consider making application to VCAT as long as all the requirements of the Act have been adhered to.

Stratabase Holdings E: info@stratabasemgt.com P: 0412 247 589

This post appears in the September 2022 edition of The VIC Strata Magazine.

Question: We are in the process of updating our electrical infrastructure to allow any apartment owner to have an electric car charger installed in their parking bay. Will our building insurance cover these EV Chargers?

Our 101 apartment complex with 170 on-title parking bays is currently installing electrical infrastructure to allow any apartment owner to have an electric car charger installed in their parking bay/s. As the chargers will be attached to a common property wall or pillar in the basement car parks, will the owners corporation building insurance cover the chargers, as they will be individually owned?

Answer: Strata insurance covers all permanent fixtures including electrical infrastructure and the charging stations provided they are a permanent attachment.

Electric vehicle charges are becoming more common in strata.

What is and is not covered by strata is usually shown in your policy wording under the definition of “insured property” or “building”.

Strata insurance covers all permanent fixtures including electrical infrastructure and the charging stations provided they are a permanent attachment.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This post appears in the September 2022 edition of The VIC Strata Magazine.

Question: A hot water meter from an embedded gas hot water system failed, leaked water onto the corridor carpet and damaged the floating wood floor inside an apartment. Who is liable for the excess?

Our 4 level apartment building has an embedded gas hot water system. One of the hot water meters in the ceiling in the corridor outside an apartment failed, leaked water onto the corridor carpet and damaged the floating wood floor inside an apartment. The meter was specific to the damaged apartment. Is the apartment owner liable for the large insurance excess on the OC claim? As the meter is the property of the utility company was the liability theirs in this situation?

Answer: In cases where an owner’s lot causes damage to another lot, they may be liable for the access because of the benefit principle that applies.

With regard to excess in Victoria the legislation is silent. I wish every state adopted Queensland’s legislation because it actually talks about excess, whereas every other state in Australia does not talk about excess. So we then have to go to what a judge is saying in these cases.

So in this instance, how Victoria works is they work on the benefit principle. I’m going to read to you a judgement by Paisley vs The Owners Corporation for PS 55240. This does give good guidance on access and in particular the benefit principle.

In my view, the payment of an excess, as opposed to the payment of insurance premium, attracts the benefit principle. It is money paid out to effect to repair and as such consideration should be given to the person or persons who benefit. In this instance, the owner of the lot benefits because it covers repair to their property.

Now, if the owner of lot 4 is responsible for the leak, the judge then goes on to say the question then arises, who benefits from the payment made from insurance? In most scenarios, the excess is paid by the person whose properties or actions resulted in the damage. That is because the person receiving the benefit by not having to pay out the full cost of damage. So in the case where someone is responsible for the water damage, what the judge has said is that it is Mr. PAISLEY, who was the respondent, is receiving the benefit not because Mr. Paisley’s unit was damaged and requires repair but because the source or cause of damage arose from within Mr. Paisley’s lot. In effect, he is receiving the benefit of not having to pay the cost of the full damage. So in cases where an owner’s lot causes damage to another lot, they may be liable for the access because of the benefit principle that applies.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the May 2022 edition of The VIC Strata Magazine.

Question: If a Lot in a strata building is damaged by burglary and the OC makes an insurance claim to repair it, who pays the insurance excess? Is it the OC or the Lot Owner? This occurred in a single level shop and none of the common area was affected.

Answer: The Act allows the owners corporation to levy an excess to the owner of a lot if the claim has been caused by a culpable or willful act.

Owners Corporation and Other Acts Amendment Act 2021 (the Act) allows the owners corporation to levy an excess to the owner of a lot if the claim has been caused by a culpable or wilful act or the gross negligence of a lot owner, lot owner’s lessee or a guest of a lot owner.

The Act does not specifically speak about instances outside of the parameters set down in the act but past court decisions handed down may provide some guidance.

Case law has found the payment of an insurance excess attracts the benefit principle. It is money paid out to effect a repair, and as such consideration should be given to the person or persons who benefit. In this case, it is reasonable to suggest the lot owner is receiving the benefit because their property was damaged and requires repair.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #563.

Question: Our previous tenant caused damage to a neighbouring lot. The OC has billed us for the insurance excess. Why should we pay for damage caused by the tenant?

A previous tenant in our investment property damaged the garage door of the neighbouring lot. The Owners Corp has billed us for the insurance excess. The OC says: “As the damage was caused by the tenant, the owner is responsible for the insurance excess on this claim”.

Why should we pay for damage caused by the tenant? We had no idea the incident had occurred until we were contacted by the Owners Corporation.

Answer: The owners corporation are within their right to bill the excess to the lot owner.

Section 23A of Owners Corporations and Other Acts Amendment Act 2021 states:

Owners corporation may levy fees in relation to insurance

An owners corporation may levy a lot owner a fee to cover the cost of any of the following…
1. an excess amount or an increased premium resulting from or attributable to an insurance claim, if the claim is caused by a culpable or wilful act or the gross negligence of….
  1. a lot owner’s lessee; or

In this instance the owners corporation are within their right to bill the excess to the lot owner.

In this instance I would recommend the owner first clarify whether the insurer has undertaken a recovery action against the tenant and if that action was successful. In such instances, the insurer will generally refund the excess less any expenses incurred.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #558.

Question: One of the glass panels to the balustrade blew off in the wind. An insurance claim was made and the Owners Corporation claims that I am responsible for the excess in full. Is this correct?

The walls of my balcony (boundaries of my lot) are glass balustrades. The plan of subdivision provides that all boundaries are median. One of the glass panels to the balustrade blew off in the wind.

An insurance claim was made and the Owners Corporation claims that I am responsible for the excess in full. However, s 23A(3(c)) provides that an insurance claim can be levied against an owner only where “the claim solely relates to a lot owner’s lot”. Does this mean that the excess cannot be on-charged where it relates to a median?

Answer: Precedent cases before the court have found that the application of an excess works on the benefit principle.

Victorian strata legislation is silent about who is responsible for the payment of an excess.

Precedent cases before the court have found that the application of an excess works on the benefit principle – that is the party benefiting from the insurance claim is liable for the excess.

In this instance, the person responsible for maintaining the glass balustrade (the property owner) would therefore be responsible for the payment of the excess.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #549.

Question: If there is a Water Damage Incident inside a lot, what does the strata building insurance cover and what does the lot owner’s home content insurance cover?

Answer: If you pick the unit up and shake it, anything that falls out is lot owners contents as well as temporary flooring such as carpet, blinds & curtains and appliances that are not permanently attached.

In relation to property covered by strata vs contents, the basic principle is that if you pick the unit up and shake it, anything that falls out is lot owners contents as well as temporary flooring such as carpet, blinds & curtains and appliances that are not permanently attached. Other permanent fixtures including but not limited to kitchen & bathroom cabinetry are covered by strata insurance subject to the policy terms, conditions & exclusions.

In relation to cover under the strata policy, in the majority of claims there is often a component of insurance repairs and lot owner maintenance. Insurers cover the cost to repair water damage to insured property but generally exclude repairs costs related to finding and fixing the leak, as it generally considered the owners/body corporate responsibility to maintain their property and such repairs relate to excluded causes such as gradual deterioration, wear & tear or building defects.

Generally, leaks are only covered if the leak is caused from “sudden and accidental damage” such as impact damage, storm damage etc. However, the consequential water damage (to insurable property) should be covered as water damage. Long term water damage or rot may be something that the insurer does not cover depending on the circumstances as strata policies are designed to cover sudden and accidental damage.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #541.

Question: If a lot owner makes an insurance claim that affects the premium and that lot owner pays a higher portion, what happens when the lot owner leaves? Does the higher premium fall to the next owner of the lot?

Answer: My instinct would be that the purchaser doesn’t inherit that.

That is a spectacularly good question that legislature didn’t think over, nor did I.

Excesses relate to a specific claim. So if they’re sort of ‘one offs’, whereas premiums, once they’re increased, probably stay increased.

My instinct would be that the purchaser doesn’t inherit that. For liability to run with a lot and to survive transfers, you need the express statement, I think, to that effect, whereas the language of the section we looked at talks about a lot owner causing that increase. That is an individual person, it doesn’t talk about a lot owner or its successes in title. So it seems to me that what it really implies is that a lot owner, so long as they are, and probably by that definition, they have to be a lot owner for the section to apply to them. If they’re no longer a lot owner. They don’t. I don’t think the purchaser inherits liability, because the section doesn’t say so and the section does seem to put it on the specific person that caused it.

This is a fantastic question. I think where you end up is, that lot owner as the burden of the increase for the currency of their ownership, but upon disposition of the lot, the excess doesn’t change, but the OC picks it up. I think that has to be the answer based on what’s written but it was obviously not something that was considered discreetly.

Tim Graham Bugden Allen Graham Lawyers E: tim@bagl.com.au P: 03 9086 5832

This post appears in Strata News #541.

Question: Is there any change in the new legislation for charging the excess to the lot owner when an insurance claim relates to only their lot?

With regards to new paragraph 23A(3)(C), which indicates that the owners corporation can pass on:

“an excess amount on an insurance claim if the claim solely relates to a lot owner’s lot.”

…does that mean that currently we are not meant to be charging the lot owner the excess when they make a claim which is only in relation to their unit?

Answer: The so-called “benefit principle” cannot be used as it relates only to fees for extraordinary items of expenditure relating to repairs, maintenance or other works that are undertaken wholly or substantially for the benefit of some or one, but not all, of the lots affected by the OC.

There is currently no clear way to pass on a charge to a lot owner.

If it can be proven that the owner is at fault, the OC can issue legal proceedings to recover the charge if authorised by special resolution (or ordinary resolution if the charge arises from a rule breach).

The so-called “benefit principle” cannot be used as it relates only to fees for extraordinary items of expenditure relating to repairs, maintenance or other works that are undertaken wholly or substantially for the benefit of some or one, but not all, of the lots affected by the OC.

Extrapolating the key quotients of the sections:

Under s.23 an OC sets annual fees for recurrent obligations;

Under s.24 an OC may levy special fees and charges to cover extraordinary items of expenditure. The notion of charges is introduced here – it does not appear in annual fees. It is not defined;

Fee notices and final notices give notice of fees and charges due and payable by the lot owner;

Section 28(1) speaks to a lot owners liability to pay any outstanding fees, charges, contributions or amounts owing to the owners corporation in respect of that lot;

There is no power in the OCA for an OC to set or levy contributions or amounts. The reference is confusing and anachronistic.

Section 28(2) is open to various interpretations and arguments, but for present purposes let’s assume it provides that fees and charges must be paid in accordance with lot liability (assuming of course that the benefit principle does not apply in the case of special fees).

The reference to “charges” in the context of s.24 must mean something other than a special fee. But the distinction is probably nugatory given s.28(2) which says that all payments or contributions, whatever they are termed, must be paid in accordance with lot liability.

There appears to be no power to “on charge” a specific debt.

Moreover, setting annual fees, and levying special fees and charges, requires a resolution of the OC or its delegate. Without a resolution to set annual fees, or levy special fees and charges, a lot owner’s obligation to pay does not arise. Even if it was lawful to “on charge” a specific debt an underpinning resolution of the OC or its delegate would be required.

Tim Graham Bugden Allen Graham Lawyers E: tim@bagl.com.au P: 03 9086 5832

This post appears in Strata News #535.

Question: My bank wants a certificate of currency from our insurer for our new apartment. Does the insurer include the bank as the “interested party”?

As part of our loan conditions, my bank wants a certificate of currency from our insurer for our new apartment. How does the owners corporation, which pays for the insurance on the building, acknowledge our title? Can they include the bank as the “interested party”?

Answer: You can request the insurer issues a certificate of currency with the bank noted as an interested party if this is a requirement.

A certificate of currency is a common document provided by insurers that confirms there is an insurance policy in place for the property. You should be able to request this from the current insurer of your property.

In the absolute majority of cases, banks do not require that they are noted as an interested party on a certificate of currency because strata legalisation in various states protects interest of financiers with regard to the lot including their interest in the strata insurance. We generally find it is only those lenders who are not major lenders who request this information, as they do not fully understand the legislation.

You can request the insurer issues a certificate of currency with the bank noted as an interested party if this is a requirement.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the December 2021 edition of The VIC Strata Magazine.

Question: Can I make a claim against the strata insurance for a tree branch (on common property) falling on my vehicle?

Answer: Vehicle owners generally have low prospects of a successful claim against the body corporate (and the strata insurance policy) for a fallen tree branch.

As the property section of a strata insurance policy does not extend to cover vehicles, the only consideration in this instance can be the public liability section of a strata policy. This section covers damage to another person’s property, however, the test for cover applying is that the vehicle owner demonstrates that the owners corporation is legally liable for the damage.

Legal liability isn’t always straightforward and in some instances is ultimately determined by solicitors and judges. Based on our experience, vehicle owners generally have low prospects of a successful claim against the body corporate (and the strata insurance policy) for a fallen tree branch.

If the tree branch damaged the vehicle because of an “act of God” such as a storm, negligence and legal responsibility can be difficult to prove. If however, the tree branch fell and the owners corporation had previously been advised that the tree branch was in need of maintenance and they failed to act, there are greater prospects of a successful claim.

We always recommend that vehicle owners lodge a claim on the policy that insures the vehicle. If there is a case for the motor insurer to make a recovery against the owners corporation, they will do this on behalf of the vehicle owner and usually refund the excess.

Otherwise, if you believe the owners corporation is legally responsible and you don’t wish to lodge a claim or do not have motor insurance, the alternate option is to deal with the issue via the processes set out in Consumer Affairs Victoria for complaint handling in your owners corporation.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the October 2021 edition of The VIC Strata Magazine.

Question: If the apartment above me, or to the side of me, has a water leak that affects my property, does the Owners Corporation’s insurance cover my damage?

Answer: If the leak has caused damage to the permanent fixtures in the building then the strata policy is designed to respond to this damage subject to the policy terms, conditions and exclusions.

Strata Insurance is designed to cover damage to buildings insured by the policy. So if the leak has caused damage to the permanent fixtures in the building then the strata policy is designed to respond to this damage subject to the policy terms, conditions and exclusions.

If there is damage to contents such as carpets, curtains & blinds or appliances that are not permanently attached to the building we recommend referring the claim to your contents insurer.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the August 2021 edition of The VIC Strata Magazine.

Question: Does the new legislation on the 1 Dec 2021 have any effect on strata insurance?

Answer: The new Act requires strata managers take fair action to ensure that all products or services procured on behalf of the Owners Corporation are procured at competitive rates and terms.

The new act allows an owners corporation to levy a lot owner for:

excesses and increased insurance premiums resulting from a claim caused by a culpable or wilful act or gross negligence

insurance excess if the claim solely relates to that owner’s lot

fees to cover damage caused to common property by an Owner that is not covered by insurance, or where the damage is less than the excess.

Additional insurance costs incurred if the owners corporation has incurred additional insurance costs because of the way the lot owners uses the lot. Owners corporations will also be able to pass on additional insurance costs to lot owners whose use of their lots has required the extra cover.

The new Act also requires strata managers to take fair action to ensure that all products or services procured on behalf of the Owners Corporation are procured at competitive rates and terms. Before entering into a contract for the supply of products or services to an Owners Corporation in which a manager is entitled to a fee, payment, or other benefit, the manager must offer written notice to the Owners Corporation’s chairperson disclosing the commission, payment, or other benefit.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #489.

Question: Under Victorian Strata Law, are individual unit’s internal fixtures and fittings (e.g. the kitchen) covered under Strata Insurance? Or, should they be covered by individual owners Landlord Insurance?

Answer: if you pick the unit up and shake it, anything that falls out is lot owners contents

The basic principle is that if you pick the unit up and shake it, anything that falls out is lot owners contents + temporary flooring such as carpet, blinds & curtains, appliances that are not permanently attached.

Other permanent fixtures including but not limited to kitchen & bathroom cabinetry are covered by strata insurance subject to the policy terms, conditions & exclusions.

Lot owners should also have contents/landlords insurance to cover property not insured by the strata policy & liability within the lot and I always suggest lot owners add an extra say $10,000 contents cover on what they believe should be covered for any incidental items not considered as it might only cost say $50 for the extra peace of mind.

We recommend referring to the insurer’s policy for the definition of “insured property” or “building” to fully understand what the insurer covers.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the June 2021 edition of The VIC Strata Magazine.

Question: Should increases in owners corporation insurance premiums due to lot owner water damage claims be paid for by the lot owner who made the claim?

A lot owner makes an owners corporation insurance claim for water damage in his property and, as a result, the premium increases on the next renewal. This water damage can be gradual wear and tear or due to a maintenance issue. Should the overall premium be shared by all lot owners OR since the increase was due to a claim by a particular lot owner, should the resulting increase be paid by the beneficiary of the claim?

Answer: We are not aware of any state legislation which provides the body corporate the ability to charge a higher levy for the cost of insurance due to an owner’s claims history.

Claims history is a major rating factor for insurers and if there are large claims or a series of claims it will impact the premium.

When you buy into strata you share the collective claims history for the building and that premium split is shared by lot entitlement. This can have an impact on an owner who has not had claims.

We are not aware of any state legislation which provides the body corporate the ability to charge a higher levy for the cost of insurance due to an owner’s claims history.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in Strata News #474.

Question: Our investment apartment was damaged by a leak and has been vacant for some time. The insurer has agreed to pay for repairs and loss of rent however the owners corporation manager will not pass on any payments until the matter has been settled.

Our investment apartment was damaged by a leak and has been vacant for some time. The insurer has agreed to pay for repairs and loss of rent. They are going to make an interim payment for loss of rent to the owners corporation.

The owners corporation manager has said that they will not forward any of the funds to us until all works have been completed. Given that repairs have not yet commenced, this may be months away. This seems outrageous to me as we still have to pay all our expenses while the property is vacant. Does the owners corporation manager have any grounds to withhold the funds for all this time?

Answer: Most insurers will pay loss of rent directly to the owner and the owner may wish to request this.

The Owners Corporation Act does not specify timeframes in which loss of rent should be paid to owners. Acts in other states do specify a requirement for the owners corporation to act immediately with regard to building repairs related to insurance claims but Victoria strata legislation remains silent on this issue.

Unless the owners corporation has reason to suggest otherwise, it could be considered unreasonable in the circumstances to withhold proceeds of an insurance claim from a lot owner who is rightfully entitled to those funds.

Some policies (not all) will include the lot owner in the definition of “you” for loss of rent, meaning that they are entitled to receive the rental payment directly from the insurer as the insured party, rather than funds going to the owners corporation.

Likewise, most insurers will pay loss of rent directly to the owner on request and the owner may wish to request this with the insurer to avoid a dispute with the owners corporation on timing of the payment for loss of rent.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the April 2021 edition of The VIC Strata Magazine.

Question: I dropped a dumbbell in the common property gym and cracked a mirror. Will I be liable for damages to the mirror or is my strata insurance able to cover the damages?

I am an owner of an apartment and I pay for strata insurance twice a year. The other day while I was at the apartment gym, I was working out with a dumbbell when it slipped out of my hand, proceeded to bounce and hit the gym mirror resulting in a crack on the mirror.

Will I be liable for damages to the mirror or is my strata insurance able to cover the damages?

Answer: Provided the damage is above the excess, a claim for the damage can be made on the owners corporation insurance policy

Section 49 of the Owners Corporation Act deals with repairs, maintenance or other works conducted on common property or a lot for the benefit of a lot owner.

The owners corporation has an insurance policy for which the owner has an insurable interest and provided the damage is above the excess, a claim for the damage can be made on the insurance policy.

Paisley v Owners Corporation PS52240 – OC1697/2012 provides good guidance on how the excess is paid, the member’s comments:

“In my view, the payment of an insurance excess, as opposed to the payment of an insurance premium, attracts the benefit principle. It is money paid out to effect a repair, and as such consideration should be given to the person or persons who benefit.”

“The question then arises, who benefits from a payment made from insurance. In most insurance scenarios, the excess is paid by the person whose property or actions resulted in the damage. That is because that person is receiving the benefit by not having to pay out the full cost of the damage.”

“In the case before me, the Owners Corporation has taken out the insurance, but it is Mr Paisley who is receiving the benefit. Not because Mr Paisley’s unit was damaged and requires repair, but because the source or cause of the damage arose from within Mr Paisley’s lot. In effect, Mr Paisley is receiving the benefit of not having to pay the full cost of the damage.”

This would therefore imply that having caused the damage should a claim be made against the strata policy you would be liable for any excess payable under the policy.

Section 49: Cost of repairs, maintenance or other works

An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.

The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.

The works referred to in this section may be to the common property or a lot.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the April 2021 edition of The VIC Strata Magazine.

Question: Is strata responsible for repairs to water damaged, fixed floorboards in a lot owner’s unit? If so is strata insurance excess shared between lot owners?

Answer: It is important to understand there can be a difference between “responsibility to insure” and “responsibility to maintain (ownership)”.

It is important to understand there can be a difference between “responsibility to insure” and “responsibility to maintain (ownership)”.

If the floorboards are fixed floorboards and not temporary flooring (such as floating floors or carpet) the owners corporation have “responsibility to insure” the flooring.

Notwithstanding the lot owner has “responsibility to maintain” the flooring. That can include managing repairs for the insurance claim and covering the costs associated with any repairs not covered by insurance.

The Owners Corporation Act is silent on who is responsible for payment of excess. As legislation is silent on this issue, we firstly recommend reviewing the by-laws of the strata corporation to see if there is guidance on excess in the strata corporation by-laws.

Failing this, we generally advise clients that for claims affecting one lot only it is usually paid for by the lot owner unless the owners corporation decides it is fair in the circumstances for the body corporate to bear the cost and for claims affecting two or more lots or one lot and common property it is usually paid for by the owners corporation unless the strata corporation decides it is fair for one lot owner (or a number of lot owners) to bear the cost.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 07 3899 5129

This post appears in the April 2021 edition of The VIC Strata Magazine.

Question: If a landlord is renting out their unit using a non-standard rental agreement, could this arrangement have any consequences for the Owners Corporation, particularly in regards to their building insurance?

A landlord is renting out their unit using a non-standard rental agreement (which possibly signs away a tenant’s statutory rights) and holds onto the bond money rather than lodging it as per the legislation. Could this arrangement have any consequences for the Owners Corporation, particularly in regards to Owners Corporation’s building insurance?

Answer: We take the view that it would not be reasonable for an insurer to penalise the owners corporation for contracts they are not a party to and, in most cases, not aware of.

Generally, insurance policies will only mention tenancy agreements in certain policy provisions – for example loss of rent may require a signed rental agreement in force before cover can be considered.

But notwithstanding, owners and the owners corporation should be aware of the following provisions:

Subrogation clauses which in effect say that you must not do anything that limits the insurers right of recovery (for example “Where You have entered into an undertaking with any other party which prevents or limits Your/Our right to recover from that party all benefit under this agreement is forfeited unless You have Our prior written consent.”)

Contractual liability clauses whereby a liability claim arises due solely to a contract or agreement with another party. (for example “We will not pay for any claim arising under the terms of any agreement unless liability would have attached to You in the absence of such agreement”)

Strata Insurance Solutions takes the view that it would not be reasonable for an insurer to penalise the owners corporation for contracts they are not a party to and in most cases not aware of. As conditions above refer to agreements “You” enter into, depending on the specific policy wording and who is defined as “You” in the policy, it may be reasonable to suggest that as the Owners Corporation did not enter into such agreements, the exclusion/condition does not apply. Additionally, contractual liability exclusions generally provide an allowance for liability assumed under any contract or lease of real or personal property.

As all policy terms and conditions differ, an owners corporation that has concerns about specific lease arrangement should seek advice from their insurance adviser.

Prior to entering into any lease agreement, it is recommended lot owners should seek appropriate legal advice.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This post appears in the February 2021 edition of The VIC Strata Magazine.

Question: Our strata insurance has increased by 20-30%. Any attempt to negotiate with the insurer had been met with a total lack of empathy or interest. Since 2013, the premium has risen from $13,000 to $35,000.

The annual base premium of our strata insurance has increased by 20-30%, irrespective of whether the building’s value has increased or not. Any attempt to negotiate with the insurer had been met with a total lack of empathy or interest. The premium has risen from $13,000 to $35,000 (since 2013). Would you concede this is an unreasonable, unjustifiable hike?

I might be barking at the moon, but the insurer already charges a hefty premium and if you’re unlucky enough to lodge claims, a $5000 excess is charged on each occasion. Isn’t this double dipping?

Surely there must be some recourse to this kind of unbridled, money grabbing practice by strata insurers. Is there an Ombudsman responsible for this industry?

Answer: I would strongly suggest the owners get their ducks in order and understand the insurer’s reasons for premium increases.

The information provided was based on general market movements and it must be noted individual factors for the specific building must be considered.

With a $5,000 excess imposed, I would be interested to see the claims history and full reason of why the premiums have increased so much as this is unusual for a building that has a reasonable performing claims history.

It appears in this instance it appears the most likely reason for premium increases and imposed excesses is because there is an adverse claims history. It is not unusual for premium increases and excesses to be applied as has been stated by the questioner and premiums/excesses can decrease when the claims performance improves.

There is a dispute process available firstly through the insurer’s internal dispute resolution process and then the Australian Financial Complaints Authority (AFCA). I would strongly suggest the owners get their ducks in order and understand the insurer’s reasons for premium increases firstly. If it is due to an adverse claims history, then the Owners Corporation may have limited prospects of a successful complaint against the insurer and we would advise against a complaint. If you go to AFCA and lose the case, as disputes in AFCA can cost the insurer in excess of $7,000 – the insurer may decide in future years not to insure the complex. This may compound availability and affordability of insurance for the complex.

As always, I am happy to review the specific example provided and provide further advice at no cost to the owners corporation.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This post appears in the November 2020 edition of The VIC Strata Magazine.

Question: If there is an insurance claim, is the claim excess automatically passed back to the owner of the lot which caused the damage?

If there is an insurance claim, is the claim excess automatically passed back to the owner of the lot which caused the damage? Is this something which the Owners Corporation can make a standard ruling to have in place by a vote to determine whether or not the excess of any claim is absorbed by the OC or passed on to the lot owner whose property/tenant caused the damage?

Answer: The simple answer to your question is, yes.

The simple answer to your question is, yes. The Owners Corporation can, and in most cases should apply any excess incurred (as a result of a successful insurance claim) to the lot owner or owners who benefit from that claim. But not quite in the way you think it would.

To ensure this is standard practice, the Owners Corporation should implement a standing motion at each Annual General Meeting confirming as such. Members are then afforded the opportunity to determine – if a claim is successful, but is subject to an excess, the excess is applied to the lot which benefits.

The main consensus behind this approach is centred around the ‘benefit principle’ which is largely covered under Section 49 of the Owners Corporation Act 2006:

49. Cost of Repairs, Maintenance or Other Works

An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.

The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.

The works referred to in this section may be to the common property or a lot.

There have been several examples of this query in VCAT in recent years. One which springs to mind is Paisley v Owners Corporation PS52240 – OC1697/2012.

The lot owner argued the excess should have been split by lot liability, not paid solely by himself. The member advised the following:

Of particular note are the points about the cause of the damage and its origin.

The benefit here is not that which is typically defined under the ‘benefit principle’, but one which states the benefit is provided to the source or cause of the damage, which is where the excess should be borne.

This principle is based around the person, party or source of the damage being the one who has benefited from not having to pay the full cost of the damage.

So, in simple terms, we can apply an excess to the person who benefits from the claim. However, that person is not so much the one who has sustained the damage, but the person who has caused it, as they benefit from the insurer covering the cost of said damage, where they would otherwise have to.

Joel Chamberlain Horizon Strata Management Group E: joel.chamberlain@horizonstrata.com.au P: 03 9687 7788

This post appears in Strata News #414.

Question: Can the OC Manager respond to quotes and select the strata insurance renewal on behalf of the OC without sending any information to the committee?

When renewal of strata insurance comes around, can the OC Manager legally respond to the quotes and select the insurance renewal on behalf of the OC without sending any information to the committee? They have only placed a comment in the AGM agenda a few months later that renewal was taken out and the cover events and $$.

Answer: Good practice would be for the strata manager to run it by the committee.

Good practice would be for the strata manager to run it by the committee. You need to refer to the terms and conditions of your contract because a lot of strata management contracts do give the strata manager the authority to place and maintain the insurance on behalf of the owners corporation. If that is the case, they’re meeting the terms of the contract.

It might be a term and condition that you want to negotiate with the strata manager when the contract becomes due for renewal, but it really does depend on what authority the owners Corporation gives a strata manager in their contract.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This post appears in the September 2020 edition of The VIC Strata Magazine.

Question: With renewal of strata insurance, is there a duty of disclosure for all lot owners to advise the insurance company of anything which may have become known and may affect the insurance cover?

With renewal of strata insurance in Victoria, is there a duty of disclosure for all lot owners to advise the insurance company of anything which may have become known and may affect the insurance cover?

Should the insurance policy cover be sent to all owners at renewal / change over to a new insurance provider?

Answer: Does the Owners Corporation have knowledge of a matter that should be disclosed to the insurer?

So the policyholder is the owners Corporation. The question that needs to be asked firstly is “does the Owners Corporation have knowledge of a matter that should be disclosed to the insurer?” Now that may not be the case if the owner is not disclosing something to that insurer. It would be hard for an insurer to say that you haven’t met your disclosure requirements if you didn’t know of the issue in the first place.

The other thing that insurance policies do have if we’re talking about a defect or a property issue is that there are exclusions around non rectification of known defects errors or property issues that haven’t been addressed by the insured and that can include a lot owners.

So if there is a known issue inside the lot and the owner chooses to not rectify that and there’s a claim, then that exclusion could apply. It really does come down to the owners corporations knowledge at the time of claim of disclosure matters.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This post appears in Strata News #374.

Question: A tenant’s actions resulted in sprinklers being activated and ruining three apartments. The Committee claimed on strata insurance. Is this the correct course of action?

In a large complex a tenant left the stove on resulting in sprinklers being activated completely ruining the apartment and the two apartments underneath. The Owners Corporation Committee immediately made a claim of $400,000 for damages on the building insurance policy.

Is this correct or should the negligent tenant or owner be forced to pay the excess on the building insurance claim?

As a result of this large claim, the total building insurance premium has increased by $30,000. The Committee proposes that all owners share the cost of the increased premium.

This does not seem reasonable as all lot owners are being required to pay costs as a result of another resident’s negligence. Should the lot owner of the apartment where the negligence took place be required to pay this increase of $30.,000? Their tenant has since vacated.

Answer: For larger claims like this, we would recommend the owners corporation lodge a claim.

Where a tenant has caused damage there are two options available to the owners corporation. They can either lodge a claim on their insurance policy or lodge a letter of demand directly to the responsible tenant.

Where the owners corporation decides to lodge a claim on their strata insurance and the tenant has been negligent in causing the damage, the insurer may at the end of a claim decide to pursue a recovery against the tenant. If the insurer is successful in their recovery against the tenant, the insurer will generally refund the excess.

For small claims we would recommend sending a letter of demand to the tenant in lieu lodging a claim on the insurance and then in the event, the owners corporation are not successful in their recovery attempts, they can decide whether they would like to lodge a claim.

For larger claims such as in this question, we would recommend the owners corporation lodge a claim. The reason why is because the immediate need for the property is minimising loss and getting repairs started. If the owners corporation decide to pursue recovery before lodging a claim, they run the risk that the tenant:

cannot cover the cost of repairing the damage;

has reasonable grounds to deny the allegation of negligence;

just does not respond.

In all three scenarios above, precious time would be lost in fixing the damage.

At the end of the claim, the insurer on behalf of the owners corporation will pursue a recovery for the claim if they believe there are reasonable prospects. Insurers will look at recoveries on a commercial basis –insurers will not pursue a recovery where they believe the prospects of a successful claim are low. Our experience with claims for negligence against tenants valued at $400,000, is that the only real prospect the insurer has of recovery is where the tenant has contents insurance and there is no exclusion for liability claims for damage to the tenanted property.

In relation to the second question of apportionment of premium, Section 23 of the Owners Corporations Act 2006 sets out that the levy for insurance must be paid in accordance to lot liability as specified on the plan.

23. Owners corporation may levy fees

(1) An owners corporation may set annual fees to cover—
- (c) insurance

(3) The fees set must be based on lot liability.

When you purchase in strata you share an insurance policy (among other things) and you run this risk that other owners lots may impact the cost of your insurance, just as your lot may impact other owners cost of insurance. It is part one of the considerations for investors prior to purchasing a unit in a strata building.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au T: 07 3899 5129

This post appears in Strata News #321.

Owners Corporation Insurance Requirements Victoria

Insurance is important to protect owners corporations’ property and, to a limited extent, lot owners’ personal assets. The Owners Corporations Act 2006 sets out the minimum insurance requirements:

Reinstatement and replacement insurance of buildings on common property; and

Public liability insurance for the common property.

Two lot subdivisions are exempt, which is a shortfall in my opinion as insurable events are no less likely to occur on two lot subdivisions.

Reinstatement and replacement insurance

Subject to the two lot exception all owners corporations’ must take out reinstatement and replacement insurance for all buildings on the common property.

A building includes:

A structure and part of a building or structure;

Walls, out-buildings, service installations and other things attached to the main structure;

Any pipes or cables used to provide services to a party other than the owners corporation or its members (shared services); and

A boat or a pontoon permanently moored or fixed to land.

Reinstatement and replacement insurance must cover the cost necessary to replace, repair or rebuild the property to a condition substantially the same, but not better or more extensive than its condition when new. That extends to reinstatement and replacement insurance for the owners corporation’s portion of any shared services, which include pipes or cables used to provide services including water, electricity, gas and telecommunications to the building that are shared with a person other than the owners corporation or any of its members.

The owners corporation must also be indemnified for the payment of incidental expenses necessarily and reasonably incurred:

In the removal of debris; and

The remuneration of architects and other persons whose services are necessary, being incidental to the replacement, repair or rebuilding of the damaged property.

Unless the sum insured is at least equivalent to the cost necessary to replace, repair or rebuild the property to a condition substantially the same then the new condition of the building, plus incidentals, the owners corporation will be in breach of its obligations.

The costs necessary to obtain planning permits and building permits, as well as meeting any heritage requirements, should be countenanced, as well as construction costs which usually increase with the effluxion of time.

Valuations

It is difficult to see how an owners corporation can discharge that obligation without obtaining regular valuations. Unhelpfully, The Owners Corporations Act 2006 mandates that only prescribed owners corporations’ (annual fees in excess of $200,000 in a financial year or more than 100 lots) must obtain valuations, and then the minimum requirement that a valuation is obtained every five (5) years is too infrequent.

It goes without saying that valuations should be obtained from suitably experienced and reputable valuers and that whilst unlike other Australian states valuers do not have to be formally registered to practise in Victoria, it is strongly recommended that owners corporations’ source only those valuers who are registered with the Australian Property Institute.

Owners corporations’ duties

Owners corporations’ must exercise due care and diligence in the performance of their functions. The same duty applies to committees and sub-committees.

Under the Strata Communities Association (Vic) (SCA) standard form Contract of Appointment owners corporations’ must:

9.2.5 Read the Product Disclosure Statement provided by the Manager before making a decision to purchase the insurance and decide as to the appropriate insurer, the amount of cover and the appropriate policy in good time to enable insurance renewal each year;

9.2.6 Obtain a valuation of the cost of reinstatement and replacement of the building/s which the Owners Corporation is obliged to insure not less frequently than every three years.

Whilst SCA is to be commended by requiring more frequent valuations than the statutory minimum 3 years is still too infrequent unless the sum insured is at least equivalent to the cost necessary to replace, repair or rebuild the property to a condition substantially the same than the new condition of the building, plus incidentals.

owners corporation Managers’ duties

Owners corporation Managers’ duties under the law are many and varied:

Under s.122(1)(b) of The Owners Corporations Act 2006 an Owners Corporation Manager must exercise due care and diligence in the performance of the manager’s functions;

Under clause 2.1 of the SCA standard form Contract of Appointment an Owners Corporation Manage must:
- Arrange a valuation of the cost of reinstatement and replacement of the building/s when requested by the Owners Corporation;
- Provide guidance to the Owners Corporation to enable the Owners Corporation to carry out and perform its duties and functions, as set out in this clause;

At law an Owners Corporation Manager must exercise reasonable care to avoid causing injury or loss to another person; and

Assuming the Australian Consumer Law applies to the provision of Owners Corporation Management services (see for example Owners Corporation RP 7789 v J&D Corporate Consulting Services Pty Ltd (Owners Corporations) [2014] VCAT 499 the ACL implies a guarantee into the Contract of Appointment that a manager will render its services to the OC consumer with due care and skill.

In M.R.O. Nominees Pty Ltd v Network Pacific Real Estate Pty Ltd (Owners Corporations) [2013] VCAT 1492 VCAT ordered that:

An owners corporation’s obligation to insure extends to an obligation to insure fixtures that form part of a lot owner’s building if the lot is located within a multi-level development; and

Network Pacific Real Estate Pty Ltd, which was the Owners Corporation Manager breached its duty to the lot owner under section 122(1)(b) of The Owners Corporations Act 2006 to exercise due care and diligence in the performance of its functions because it failed to obtain adequate insurance that covered the breakdown of the lot owner’s compressor.

On the other hand, in Wong v Body Corporate 1 Plan no 433814P & Ors [2009] VCC 0100 the County Court determined that it was a matter for the owners corporation to determine whether the repair and maintenance is required and at what cost and, once a decision had been made by the owners corporation, it would then prevail upon the manager to undertake its contractual obligation to execute that decision.

Bearing in mind an Owners Corporation Manager’s contractual duty to provide guidance to the owners corporation to enable the owners corporation to carry out and perform its duties and functions, Owners Corporation Manager’s may be at risk unless they recommend – preferably in writing – that owners corporations’ obtain valuations as frequently as necessary to ensure that the sum insured is at least equivalent to the cost necessary to replace, repair or rebuild the property to a condition substantially the same then the new condition of the building, plus incidentals.

Tim Graham Bugden Allen Graham Lawyers E: tim@bagl.com.au P: 03 9086 5832

This post appears in Strata News #168.

Have a question about owners corporation insurance requirements in Victoria or something to add to the article? Leave a comment below.

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