Hearth and home: common areas, owners corporations and you

When hazards lead to injuries in common areas of a property, its 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 theres an emergency.

Generally, you should report a common area hazard to the OC manager. If youre 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 Wus 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 youve been injured in a common area, you should take these steps:

  1. 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.
  2. 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.
  3. 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 neednt come to that. Preventative action is the way to keep yourself and your home safe: be aware of your OCs by-laws and report any hazards before an accident happens.

Trang van Heugten is a senior associate in Maurice Blackburn's Melbourne office.

TOPIC: Public safety
RELATED LEGAL SERVICES: Public liability

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Trang van Heugten

Maurice Blackburn Melbourne
Trang van Heugten is a Senior Associate who practices exclusively in the Public Liability and Faulty Products department at Maurice Blackburn, based in Melbourne. She is also a Law Institute of Victoria Personal Injury Accredited Specialist who has a particular interest in bringing claims for the survivors of childhood sexual abuse. Trang is specially trained in trauma informed practice which ensures she works with clients to access justice in a way that recognises the complex trauma they have suffered. Trang has substantial experience across a wide range of public liability and faulty product matters, including successfully representing people who have been injured after landlords, councils, schools, shops, manufacturers and other businesses and organisations failed to take reasonable care to members of the public. Some of Trang's successful cases include a: tenant who fell five metres to the ground when the balustrade of his rented property collapsed disabled man who sustained severe burns to over half of his body when he was trapped in a shower facility of a nursing home homeowner who free fell several metres in the defective lift which was installed in her home shopper who was almost crushed by a defective shopping trolley while travelling on an travelator, and mum who sustained serious back injuries when she was crushed under the weight of unsecured soccer goal posts Trang also has substantial experience across a wide range of commercial and civil litigation.                 Before joining the Public Liability department, Trang worked as a senior lawyer for Maurice Blackburn Commercial, assisting in the conduct of a large Supreme Court action between pharmaceutical corporations. Trang was the Associate to Mr Justice Peter Buchanan of the Victorian Court of Appeal from 2000 to 2002 and worked as a lawyer at another leading law firm from 2002 to 2008. Trang graduated from La Trobe University with a Bachelor of Laws (Hons) and was admitted to practice in 1999. She also holds a Bachelor of Science (Psychology) from the University of Melbourne. Trang is a member of the Law Institute of Victoria. She speaks fluent Vietnamese and is actively involved in the Vietnamese community. ...

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