Terrace Access Issues End up Costing Everyone

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

GoStrata’s CaseWatch is a short, sharp and easy-to-understand review of important and interesting Court and Tribunal decisions affecting Australian strata title stakeholders.

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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.

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Implications

The key implications of this strata case are as follows.

• 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.