It is often surprising for our Committees to learn that aside from legislative requirements to act to protect the common property, the body corporate is under a “duty of care” to keep a building in a structurally sound condition.

That duty of care includes the obligation to take positive steps to remedy the defect once it presents itself.

In Roscommon House[1]   Adjudicator Miskinis examined the body corporate’s obligation to remedy concrete cancer and in considering the prior relevant case authorities noted:

• The body corporate has an obligation under (current) section 180(2) of the Standard Module (Accommodation Module: 170(2)) to maintain in a structurally sound condition foundations, roofing structures and essential supporting framework including load-bearing walls; and

• “The statutory duty imposed on the body corporate is one which obliges it to remedy any defect as soon as any of the building parts covered by the duty fall into disrepair or were not operating properly – failure to do so gives rise to a breach of its duty of care[2]; and

• “There is an intention disclosed in the legislation for a duty of care to arise. A duty of care is owed by the Body Corporate for the benefit of the lot owners and other users of the common property”[3]; and

• “The duty to maintain involves the obligation to keep a thing in proper order by acts of maintenance before it falls out of conditions, in a state which enables it to serve the purpose for which it exists: requires the Body Corporate not only to attend to cases where there is a malfunction but also to take preventative measures to ensure that there will be no malfunction; extends to require remediation of defects inf the original construction of the common property; and extends to oblige the body corporate to do things which could not be for a benefit of the proprietors as a whole or even a majority of them[4]; and

• There is a breach of the duty as soon as something in the common property is no longer operating effectively or at all, or has fallen into disrepair.

With the above in mind – what should a Committee do when presented with a diagnosis of concrete cancer on the common property?

Firstly – it is important for the Committee to recognise the issue as a body corporate responsibility, accept that steps must be taken to deal with the concrete cancer and commit to completing that process whilst keeping owners informed.

Secondly  – the Committee should look at seeking the appropriate monetary authorisations to engage relevant building specialists to provide reports and a scope of works for the repair of the common property.

Third – the Committee should consider the process to fund the repairs and put those options to the owners to seek the requisite funding and move on to engage their chosen specialists for the work to be completed.

Concrete cancer is daunting but with the committed, measured, considered action by the Committee it can be beaten.

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[1] Roscomon House [2018] QBCCMCmr 551 (7 November 2018)

[2] Klinger & Anor v. Body Corporate for Costa D’Ora Apartments [2007] QDC 300.

[3] Magog  (No.15) Pty Ltd v The Body Corporate for The Moroccan [2010] QDC 70.

[4] Seiwa Pty Ltd v The Owner’s Strata Plan 35042[2006] NSWSC 1157.