10 January 2019 | Daily Top Story: Sydney Opal Tower evacuation raises questions, and provides answers, over apartment occupants’ rights


Opal Tower, a tall residential building surrounded by other apartments and a construction site, backing on to green parkland.

Strata, or apartment living, is the fastest-growing form of property ownership in Australia.

And almost 60 per cent of all apartments across the country are in the greater Sydney area.

But recent research by the University of NSW City Futures Research Centre found that up to 85 per cent of buildings built in NSW since 2000 had some form of defects.

As residents in 51 apartments from Opal Tower in Sydney’s west face an uncertain future after it was evacuated on Christmas Eve because of a major structural defect, the question remains: what can people do if the apartment building they are living in is deemed unsafe or defective?

If you’re an owner, there should be a warranty

For apartment owners, under NSW law, all buildings less than six years old are covered by a “statutory warranty scheme” for major defects, and two years for all other defects.

“In the simplest terms, [it means] all owners have the right to pursue the developer and the builder for rectification of defects,” a Fair Trading spokesman said.

Speaking on the issue today, NSW Treasurer Dominic Perrottet said strong protections were in place.

“For major defects, it remains in place that claims can be made up to six years, and that is enshrined in law,” Mr Perrottet said.

“That is available for all home owners, and then protections for renters come off the back of that.

“I think it’s incredibly important.”

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VIDEO: Residents in limbo after Opal Tower evacuation (ABC News)

For buildings older than six years old, Fair Trading recommends owners seek out legal advice to explore whether builders and developers can be held liable.

While apartment owners living in a strata scheme — where they share responsibility with other owners in common property — pay levies for maintenance and repairs.

An owner’s corporation is the legal entity that collects and manages these fees.

Owners Corporation Network spokesman Peter Goddard said apartment owners in structurally unsafe buildings could face increased special levies.

“An owners corporation has only one source of income and that’s from the owners as ordinary levies or special levies,” Mr Goddard said.

“The owner’s corporation has that statutory duty to make common property safe.

“The first thing [strata schemes] may do is raising the special levies necessary to make it safe.”

If you’re on a lease, there may be an escape clause

For renters, under NSW laws, tenants can immediately terminate their lease or agreement without incurring extra costs.

“In extreme circumstances where a building becomes unliveable or unusable, in layman’s terms you’re no longer getting the ability to occupy the premises,” a NSW Fair Trading spokesman said.

Compensation is a possibility on a case-by-case basis, Fair Trading said.

“The suggestion would be that if you were wanting to maintain the lease, but for a while you needed to be relocated, we would absolutely recommend that you discuss this with the landlord or the agent who manages the property might be able to provide other accommodation,” the spokesman said.

If a tenant has to move out of a property temporarily because the property was uninhabitable, rent can be waived or reduced, depending on the extent of the damage.

But senior policy advisor at the Tenants Union of NSW Leo Patterson Ross said it becomes complicated when you’re being offered accommodation elsewhere.

“The law doesn’t deal with that very well at all,” Mr Patterson Ross said. “There’s no mention of this in your tenancy contract or in the Residential Tenancy Act.

“So it’s very much open to negotiation and often that means that tenants are left in pretty vulnerable bargaining positions.”

If you’re a guest, check with Airbnb

People staying in Airbnb and other short-term rental accommodation could be protected under Australian consumer law and the agreement between the host and the traveller.

“If you were wanting to seek recoveries and you’re the guest and you’re unhappy with the response you got from your Airbnb or other online renter, you could talk to your consumer protection agency about whether there was something unreasonable in the provision of goods and services,” a Fair Trading spokesman said.

“So for example, when you buy goods or services they have to do what it was promised they would do, and if you were renting a premise for your short-stay on the basis that you’d stay there and enjoy it and it became unliveable, you could make claims on the trade.

“In this case it is the host for failing to provide goods or services as promised.”

Source: https://www.abc.net.au/news/2018-12-26/sydney-opal-tower-occupants-rights-explained/10668936



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