Strata Toolkit

Unlimited Liability: What do West Australian Owners need to know?

When I buy a Strata unit or ‘lot’ what do I actually own?

When you buy a unit or ‘lot’ in a strata scheme you do not individually own everything within that lot. In fact, the external walls, the floor and roof do not usually belong to the lot owner.

These areas are usually common property, and this means that the maintenance and repair of these parts of the building are the responsibility of the strata company. Many owners are unaware of this and as such cover the cost of repairs themselves. Although this can save the strata company money in the short-term (in that owners may pay for repairs that are the responsibility of the strata) it will also mean that the strata does not have control or visibility over the quality of tradespeople used – which can lead to issues later.

In fact, lot owners often need permission to do things such as install services (e.g., cable television, phone or internet), knock down walls or replace locks on doors or windows.

To add further to this confusion, many owners often do not understand the exposure to liabilities they take on when purchasing a lot in a strata scheme. Many are unaware that their liability does not end with the value of the property. Owners are in fact liable to the full extent of all their assets. Whilst thankfully it rarely comes to this, it is nevertheless important that all owners are aware of the extent of their exposures.

How can insurance help?

Many of the exposures that owners face are covered by insurance, however others may not be covered under any insurance policy – such as those related to maintenance of the building, building defects, and faulty or defective workmanship. Owners may also be exposed in respect of historical issues that the strata company is aware of, but that haven’t been addressed. For this reason alone, it is crucial to do your research prior to buying into a strata scheme.

To illustrate these issues, some examples are detailed below, with references to relevant types of insurance coverage available.

1) INSURED PROPERTY


Total loss – underinsurance

  • Under most strata insurance policies, the insurer will only pay out a maximum of the sum insured for the property cover, even if the cost to replace is higher than the sum insured.
  • Any shortfall between the sum insured and the replacement costs will be payable by the owners.

Under Division 4 – Insurance, of the Strata Titles Act 1985 (WA) (the Act), the strata company needs to ensure that insurance cover is for “Replacement Value” – which includes the cost of rebuilding, replacing, repairing or restoring the building, together with removal of debris and professional fees necessarily incurred (e.g. architects, surveyors, engineers).

How owners are expected to determine this without the use of a valuer is unclear, however if the building sum insured is not sufficient, owners are breaching their duties and in the event of a total loss, they as individuals may be liable for any shortfall. Given constantly increasing costs within the construction industry, best practice with respect to frequency of valuations is to obtain a new valuation no less than every 3 years.


Uninsured event

If there is an uninsured event, a special levy may have to be raised. A question you will have to ask is what is your capacity to obtain any necessary additional finances? Another consideration is around the market price of the lot. This may be impacted by the need to raise funds (because it will be listed in the strata records), and in the event of not being able to raise additional funds to cover special levies, owners may even be forced to sell their lot. Will the sale of the unit be enough to cover your debt? It is also important to realise that it doesn’t have to be your lot that has been impacted. It may be a lot on the other side of the building or in a separate building on the same strata scheme.

Liabilities and levies apply to ALL of the scheme. As specialist strata policies have been developed over many years, they generally cater for the majority of events that will foreseeably impact a strata scheme. However, as discussed previously, some circumstances are typically not covered by insurance and, as such, it is crucial that owners evaluate the covers offered by each insurer by reference to their own needs and are comfortable with the covers offered and limits selected.

2) LIABILITY TO OTHERS

Section 54 of the Act states that the strata company needs to have a policy in respect of damage to property, death or bodily injury for which the strata company could become liable for damages in an amount of not less than $5,000,000.1

When personal injury is involved, there are a number of factors that are considered when determining the size of the liability payment, including the future potential earning power of the individual. If it is a child or a highly-skilled and highly-paid individual that is impacted, this can be a very large amount.

As the strata company is the insured, the individual owners will be liable for any difference between the coverage limit selected and any settlement/judgment amount(s). It is important for owners to realise too, that the relevant incident does not need to happen in their lot for liability to extend to them. The strata company is responsible for the building as defined by the Act and, as such, all individual owners share the liability.

3) OFFICE BEARERS LIABILITY

This cover is designed to protect the strata council for claims made against the office bearers, either individually or collectively, for ‘Wrongful Acts’ – including associated costs of damages, judgments, settlements, orders for costs and defence costs.

Strata councils within a strata company are made up of a group of owners who do not necessarily have any experience in the running of a building. The potential for being sued exists because errors, misstatements, omissions, neglect and breach of duty do occur, despite best intentions. Where this occurs, without insurance, council members may be personally exposed to defence costs at a minimum and, at worst, a substantial judgment against them.

Office bearers liability is an optional cover under the Act, so if the owners have chosen not to have any cover, then liability for covering defence costs and any judgments will fall to the council member(s) personally. If there is cover, any shortfall between the amount payable and the limit in cover will also fall to the council member(s). For this reason, it is important for council member(s) to be satisfied that the level of cover is sufficient.

How do I manage my risk?

Although this sounds frightening, it is important to remember that thorough research will limit the exposure of individual owners – and whilst it may not be possible to remove all risk, it will at least ensure that owners are aware of, and accept, the amount of liability they are taking on.

Areas to research prior to buying a lot in a strata scheme include:

wa-records

The strata records, minutes of previous meetings, and reports on the building. These will be available for review prior to purchase and should not be ignored, and should identify issues the strata company knows about, including what steps (if any) have been taken to remedy them.

wa-dev

Who is the developer? Not all developers and builders are the same or have the same standards, so it is crucial to ensure you are satisfied your standards will be met.

wa-ins

Review the insurance that is in place and confirm covers and sectional limits meet the needs of the building and the owners.

1    This amount will increase to $10,000,000 once changes legislative amendments per the Strata Titles Amendment Act 2018 (WA) commence.

This information is general in nature only and does not constitute financial product or legal advice. References to insurance coverage and policy terms and conditions are by way of summary only. For full details of any policy’s terms, conditions, benefits and exclusions, please refer to the relevant Product Disclosure Statement.

Download the “Unlimited Liability: What do West Australian Owners need to know?” PDF here.