Who is responsible for rats in the roof?

Are owners corporations responsible for pest-control?

If a rat is hungry and only has your electrical cables to eat, who do you point the finger at when the lights go out? A recent decision by the ACT Civil and Administrative Tribunal clarified the rights, wrongs and rodents of this question under Territory strata laws.

In Castro v the Owners Unit Plan No 246 [2016] ACAT 111, the Tribunal was asked to consider whether an owners corporation should reimburse a lot owner for damage caused by rats eating electricity cables leading into his apartment. The lot owner argued that the roof space and cables were common property, which the owners corporation failed to maintain in accordance with its statutory duties under the Unit Titles (Management) Act 2011 (ACT) as well as its duty of care at common law.

The decision turned on the definition of common property. Under the Unit Titles Act 2011 (ACT) and preceding legislation, ‘common property’ is defined as property defined as such on a units plan, or property that is not otherwise designated as belonging to a lot. Under the relevant units plan, the roof cavity was not described as part of the owner’s lot on the units plan, so was held by the Tribunal to be common property.

However, the Tribunal held this did not mean that the owners corporation was automatically liable to maintain assets within the common property roof-space, such as electricity cables. Under the Unit Titles (Management) Act, an owners corporation is only liable to maintain ‘utility conduits’ such as electrical cables where they provide a ‘potential benefit for all unit holders’. In this case, there was no evidence that the electricity cables delivered power to anyone other than the lot owner, so the Tribunal found that the owners corporation was not liable to maintain them.

The Tribunal then considered whether the owners corporation’s obligation to ‘maintain’ common property under the Unit Titles (Management) Act extended to vermin control more generally, and whether it breached a statutory duty or common law duty of care in failing to prevent associated damage to private property. It ruled that an owners corporation did not have a duty to eliminate all pests, but that ‘where there is evidence of pests that are causing damage or affecting the good repair or working order of common property, it is the owners corporation’s obligation to deal with those issues’.

In this case, as the only evidence of damage was to electrical cables, which were not common property, the Tribunal held that the owners corporation could not be in breach of any statutory duties. The Tribunal also dismissed a claim for common law negligence for damage to private property, on the basis that there was no evidence that the owners corporation was aware of a vermin problem prior to the damage arising.

What does this mean for me?

Whether rats in the roof are an owners corporation’s problem or a problem for the individual lot owner will depend on the particular circumstances of a strata property, in particular the designation of common property in the units plan and the extent to which any vermin damage is known. Although the owners corporation was not held to be liable in this case, as the Tribunal noted, ‘is not clear …that the cabling for an electricity system can easily be divided into parts, such that one part can be said to be for the benefit of one owner and not another’. In other words, it is easy to consider circumstances in which electrical cables would form part of common property and therefore be an owners corporation’s responsibility to maintain. The risk of failing to do doing so, for example via pest control, could be significant, including fire, loss of property and even life. If an owners corporation is aware of vermin damage and fails to act, it could be liable for any subsequent damage.

What should you do?

If you represent or sit on the executive committee of an owners corporation, it is essential that you clearly understand what is and is not common property and undertake regular maintenance audits to ensure that it is properly maintained. A system with which to gather information about damage to common property (including notification by lot owners) and to respond to that information must be also implemented, if statutory and common law duties are to be met.

For advice on the scope of your obligations to maintain common property, please contact MV Lawyers on the details below.

For more information contact the Construction Disputes Team:

Alisa Taylor | Partner
(02) 6279 4444

John Nikolić — Senior Associate
(02) 6279 4444