November 23, 2013 Cogent Lawyers

A new approach to duty to repair and maintain

A recent decision contradicts the legal view for the past 20 years on claims for damages by lot owners against their owners corporation.

In the recent case, the court of appeal found a lot owner had no right to claim damages for breach by an owners corporation of the duty to repair and maintain common property when it refused to upgrade a ventilation system.

A commercial lot owner had wanted to connect the lot to the common property ventilation system to use it for serving food; however, the system would need to be upgraded to function properly if this were done.

Initially, the judge held that the owners corporation was required to upgrade the ventilation system from time to time to meet the needs of lot owners and the owner was awarded damages for the lost opportunity to lease the unit as a food outlet.

On appeal the court found that, though the system would not work properly if the lot owner connected to it, it functioned according to its “design capacity” and as such it was not necessary for the owners corporation to upgrade to comply with its statutory duty. This reverses previous legal authority. Speak to your solicitor if you are considering claims for damages over breach of an owners corporation’s duty to repair and maintain common property.