Apartment Camping Reduces Strata Rent Losses
Amirchian v The Owners – Strata Plan No 99357 [2023] NSWCATAP 286
Quick Read
The NCAT Appeal Panel decision is about a strata owner’s loss of rent claim for her Westmead apartment because of water leaks that made it uninhabitable and unrentable. The primary issue was whether the strata owner could claim rent losses when she hadn’t actually rented the strata lot and lived in it until the common property repairs were finished. The NCAT Appeal Panel awarded rent loss because it believed that her intention to rent the strata lot was genuine, but reduced the amount to the time the common property repair work was delayed and because she got some benefit from living in it. The decision is another example of the exposure strata buildings face when common property faults mean strata lots cannot be rented. But it also provides clues about how strata buildings can reduce their exposure by getting repair works done promptly and when strata owners get offsetting benefits.
Implications
A strata owner can claim for lost rent under s 106(5) when a strata building doesn’t maintain, repair or replace common property.
Provided there is basic [prima facie] evidence to establish things, NCAT can accept it unless it is contradicted.
A strata owner’s intention to rent their lot is enough for a rent loss claim, even if it never happens.
Full Report & Case Details
This court decision by the NCAT Appeal Panel was made after the dispute was decided by a single NCAT Member.
The dispute involved a strata owner’s rent loss because her strata lot became uninhabitable after heavy rain and major water entry. But the story and claim have an unusual twist.
The strata owner had bought the strata lot ‘off the plan’ and moved in after settlement in 2019. In mid-2022 she marketed the strata lot for sale and moved out but there was no immediate interest. She also contemplated renting it instead but did not action that.
In July 2022 after heavy rain, water entered the strata lot triggering the smoke alarms and cutting off electricity. The water entry required the strata building to do common property work to stop it continuing which was expected to take 10 weeks.
The strata owner said she could not rent the strata lot until the repair work was completed and notified the strata building she would claim rent losses. But the strata owner also moved back in whilst the work was being performed, although she said it was like camping in the apartment.
The common property repair works were not completed until April 2023, more than 15 weeks later than expected.
Under NSW strata laws [s 106(5)] a strata owner can claim damages for reasonably foreseeable [predictable or likely] losses they suffer if the strata building fails to properly maintain, repair or replace the common property.
Keywords
#NSW #NCATAppealPanel #damages #repairs #2023 #RTA2010 # s52 #SSMA2015 #s106(1) #s106(5)