This memo addresses three fundamental issues of concern to The Waves’ Executive Committee. It is noteworthy that decisions of the Executive Committee are generally taken to be as decisions of the Owners Corporation.
1. Fixing The Waves Pool Heater
The first issue to resolve is whether the Owners Corporation has a duty to fix The Waves’ pool heater. In the Strata Schemes Management Act, common property is defined as any land in a strata scheme that is not composed of a lot. On the presumption that the pool is common property, it is vested in the Owner’s Corporation as agent for the lot owners as tenants in common proportional to the unit entitlement of their lots.
Accordingly, the Owners Corporation has a statutory duty to maintain and repair the common property vested in it. This includes a duty to renew or replace any fixtures forming part of the common property. Essentially, it involves anything necessary on part of the Owners Corporation to ensure the common property serves the purpose for which it exists and that the lot owners’ enjoyment and access of the common property is unimpeded. The statutory duty to repair and maintain common property is absolute and includes a duty to take preventative measures, ensuring a problem does not arise in the future. Hence, this duty preserves the ‘integrity of the physical structure of common property’.
Prima Facie, the pool heater forms part of the physical structure of the common property due its location on the third floor of The Waves. The lot owners’ enjoyment of the pool is hindered as the cold water restricts its use all year round. Thus, the pool fails to serve the purpose for which it exists. The Owners Corporation for The Waves is responsible for ensuring the pool is fully functioning , and in a state of serviceable repair. As the original construction of the pool included a heater, by fixing it, the Owners Corporation would simply be restoring the pools...