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Posted 22 October 2013
Category: Building Defects, Strata Insurance
Claims against the owners corporation
Up until recently lot owners routinely claimed for any loss of rent suffered by them, due to a breach by the owners corporation of section 62 of the Strata Schemes Management Act 1996 to maintain and repair the common property.
However, a recent decision of the Court of Appeal in Thoo’s case decided that a breach of section 62 did not sound in damages following an analysis of the purpose, wording and scheme of the Act.
However, claims in respect of loss of rent arising in negligence due to negligent repairs and maintenance or the failure to carry out such repairs when it would have been negligent not to carry them out continues unchanged.
Whilst it is tempting to think of all loss of rent claims as being the same, caution should be exercised as they can be quite different since they can be made by different parties, against different persons and rely upon different rights (not to mention differences in the amount of quantum sought).
Claims against the owners corporation’s insurers
For insurance claims made by lot owners and owners corporations, against the owners corporation’s insurance policy much will depend on the terms of the policy and the insurer may be able to exclude cover where the cause of loss of rent was due to:-
However, loss of rent caused by a sudden accidental event, such as, a burst pipe may be covered, subject to policy terms.
The table which follows illustrates how some CHU and SUU policies may respond:-
|Occurrence||CHU Policy (Residential Strata Insurance Plan)
|SSU Policy (Residential Strata Insurance)
2009 (strata-r 0409)
|Who Claims||Insurer liable to indemnify?||Who Claims||Insurer liable to indemnify?|
|1. Breach of Statutory Warranty e.g. water damage – Loss of Rent|
|A.Common Property Damaged||OC||No – Exclusion 2 b, and Special Benefits Section||OC||No– Exclusion 18|
|B. Lot Property Damaged||Lot Owner||No – Exclusion 2 b, and Special Benefits Section||Lot Owner||No– Exclusion 18|
|2. General Wear and Tear e.g. water damage – Loss of Rent|
|A.Common Property Damaged||OC||No– Exclusion 1 c, and Special Benefits Section||OC||No – Exclusion 17|
|B. Lot Property Damaged||Lot Owner||No– Exclusion 1 c, and Special Benefits Section||Lot Owner||No – Exclusion 17|
|3. Burst Pipe “accidental loss, or damage” (during period of insurance) not otherwise excluded e.g. water damage – Loss of Rent|
|A.Common Property Damaged||OC||Yes– Policy 1, and Special benefits section; up to 15% of the building sum insured for||OC||Yes–Additional Benefits section up to 15% of the sum insured|
|B. Lot Property Damaged||Lot Owner||Yes– Policy 1, and Special benefits section; up to 15% of the building sum insured for||Lot Owner||Yes–Additional Benefits section up to 15% of the sum insured|
***The information contained in this article is general information only and not legal advice. The currency, accuracy and completeness of this article (and its contents) should be checked by obtaining independent legal advice before you take any action or otherwise rely upon its contents in any way.