When hazards lead to injuries in common areas of a property, it’s important to know your rights and responsibilities. Strata buildings are owned and governed by an owners corporation, formerly known as the body corporate. The owners corporation (OC) is responsible for the maintenance, repairs and insurance of all common areas.
What is a common area?
A ‘common area’, also known as ‘common property’, is usually identified on the plan of subdivision. It includes any parts of land, buildings and airspace that are not owned by individual lot owners. Gardens, passages, walls, pathways, driveways, foyers, stairs, lifts, gyms, pools and fences are all examples of common areas.
The OC (through its manager) must manage, administer, repair and maintain:
- the common property
- chattels, fixtures, fittings and services related to the common property
- equipment and services that benefit some or all of the lots and common property, and
- any other property that is its responsibility.
Rights and responsibilities
Tenants (whether renters or owner-occupiers) have the right to the use and enjoyment of the common property. However, bear in mind that both residential tenancy laws and OC by-laws contain rules for tenant behaviour.
Landlords are required to give tenants a copy of the OC by-laws within seven days of signing the lease. Such by-laws will include, for example, rules specifying that tenants must not behave in a manner that unreasonably interferes with the peaceful enjoyment of people entitled to use the common property.
How to report a hazard
All OCs have rules for the control, management, use and enjoyment of common areas. These may include policies that specify how and when the OC can be contacted and what to do when there’s an emergency.
Generally, you should report a common area hazard to the OC manager. If you’re renting, you should also report it to your landlord and/or their agent. The landlord is then required to pass on the report to the OC.
The OC rules should specify the response time for hazard reports. A reasonable response time for urgent or serious hazards is within 14 days.
Injury and liability
If a tenant (or visitor) is injured in a common area, liability depends on the surrounding circumstances and facts. The OC has a duty to inspect and maintain common areas and may be liable if they fail in that duty.
However, letting agents or property managers may also be liable if they prepare the entry condition report and fail to warn the tenant and/or landlord of any dangerous defects that they were, or should have been, aware of.
Case study: Wu v. Carter
In the case of Wu v. Carter (2009), the plaintiff tenant lived within a rented unit. Ms Wu suffered injuries when her balcony railing gave way as she placed the weight of her hands on it. She sued the landlord (unit owners), the leasing agent who let the unit, the owners corporation (then body corporate) and the agent appointed by the body corporate to manage the complex.
The NSW Supreme Court found that both the body corporate and the leasing agent were liable. The body corporate failed in its duty to maintain the railings (common property) in a good state of repair. The leasing agent failed to pick up on the defective railing when they inspected the property and prepared the condition report at the commencement of Ms Wu’s lease. Accordingly, the court decided that the body corporate should contribute 75% of the damages and the leasing agent 25%.
How to report an injury
If you’ve been injured in a common area, you should take these steps:
- Notify the OC manager and your landlord (and/or agent) in writing. Be sure to detail the date and time of the incident, the location, the cause and the injuries sustained.
- Take dated photographs of the area where the incident occurred. Make sure you don’t move or repair any of the fittings or fixtures that you believe caused or contributed to the accident.
- Seek medical treatment for your injuries and keep the receipts of any medical and like expenses incurred by the accident. If your injuries are serious, contact a lawyer to seek specific advice about your potential public liability claim.
The OC may have a successful defence or may be able to raise a claim of contributory negligence if they can prove that the tenant:
- was aware of the hazard and failed to take reasonable measures for their own safety, an
- failed to notify the OC about the hazard to enable the OC to address the hazard.
Professional legal advice will help you to navigate a public liability claim, but it needn’t come to that. Preventative action is the way to keep yourself and your home safe: be aware of your OC’s by-laws and report any hazards before an accident happens.
Trang van Heugten is a senior associate in Maurice Blackburn's Melbourne office.