Lack of maintenace by Landlord

[Ace in the Hole]

Need some legal advice here please.

We are have been leasing a commercial property for 5 years.
Over this time, we've had numerous issues with windows leaking into our office area causing damage and inconvenience.
This has been advised to the landlord, who is self managing, rent is 100k PA.
Only recently, did someone come to apply some silicone to the windows, but it doesn't stop it.

About 6 weeks ago, we had some pretty heavy rain and a box gutter overflowed along a wall in our office and caused some pretty major internal flooding in the office, through to the downstairs warehouse.
All the ceiling tiles dropped out which made a huge mess.
The problem is, we have to claim on our insurance for contents, and his insurance only covers building, (only replace ceiling tiles).

Then it happened again yesterday morning, not as bad as the first time.
Box gutter sump was overflowing and 1 ceiling tile dropped out, but others were wet.
We made it clear to the landlord, who owns approximately 50 commercial properties, that we need it rectified urgently to avoid future problems.

Now, 5am this morning the place is absolutely flooded, it's like a waterfall flowing into our office area.
All the ceiling tiles have dropped out and they make a huge mess, over desks and lounges.
We can't operate our business like this.
Customers need access up the stairs and they are inaccessible.

I don't have the fine details of the lease, but what are our rights here?
I'm assuming we are not required to clean out box gutters 6m up on the roof.
I'm so sick of dealing with this, having to clean up a major mess everytime.

Landlord simply tries to pass the blame to strata company.
No maintenace in common areas ever gets done either.

Alot of my important paperwork was water damaged the first time, which took me a long time to get sorted out and replaced.

What are our rights here to some form of compensation, direct from the self managing landlord?
Can we with hold rental payments?
Should we seek legal advice to make a claim, which is my intention?

We want to stay in the premises, which has an ongoing lease.


Thanks

 

[SeafordSunshine]

Commercial Lease!

Dear Ace in the Hole,

Could I suggest that you check your lease document?
Commercial leases are not subject to any agreement, that is, you get what you negotiate, in writing.
If you agreed to pay for repairs, (in writing on your lease) then it's you who pays, and vice versa,
I hope this helps

SeafordSunshine

 

[Ace in the Hole]

Thanks.

I did pay a solicitor 2 or 3 k to review our lease prior to signing.
There were a few discrepancies we ironed out.
However, I'd expect box gutters to be part of the roofing, which would almost certainly be the landlords responsibility to maintain in good condition.

I'll check it when I get back in to office, if it's not too wet to read...

 

[lizzie]

Check out your lease as - to quote Dazz (or similar) - "in my leases I am not responsible for anything inside the four corners of the yard"

 

[Edmond Dantes]

Thanks.

I did pay a solicitor 2 or 3 k to review our lease prior to signing.
......

Ace - before you get Dazz's straight-to-the-point reply, please read the lease thoroughly and understand what you signed and what you are entitled to. All the answers to your questions must be there.

good luck

 

[Mr. Fabulous]

I don't have the fine details of the lease,

There's your problem. Refer to 'PMA' in my signature.

'Hey, I shouldn't be expected to know the ins and outs of a legally binding contract I signed! That's someone else's problem!'

Now to just sit back and wait for Dazz.

 

[Ace in the Hole]

Ok, I just looked through our lease.
Closest thing I could find to our issue is:

Drains and Wastes
The tenant shall keep and maintain all waste pipes, drains, greasetraps, sewers and conduits originating within the property in a clean, clear and free flowing condition and shall at the tenant's exense employ a licensed tradesman to clear any blockages which may occur therin.

I don't feel that maintenance of roofing,gutering and downpipes falls under this category, as they are not within the building, and not floor wastes/drains.
They are 8.0m up in the air.

The only other relevant clause is:
Exclusion of Landlord's Liability
Tenant's Risk
Notwithstanding any implication or rule to the contrary the landlord will not be liable for any claim for loss or damage by the tenant, the tenant's employees or any person which may arise from:
(a) any fault in the construction or state of repair of the building;
(b) and defect in the services or landlord's fixtures; or
(c) the flow, overflow, leakage or condensation of any water, gas oil or other fluid from or in any part of the building;
or from any other cause except as a result of the negligence of the landlord, its employees, contractors, invitees or agents.

My question is, if the landlord was advised of these problems previously, and took no action to rectify the situation, is he not negligent in this case?


Do we have a legitimate case?

 

[HotRod]

Ask a lawyer.

Looks like the LL has excluded the event you described and thus is not liable.

It's up to you to prove the LL is negligent.

Good luck.

But seek legal advice. This is a grown ups problem, not little pissy schoolyard quarrel that most resi problems are.

You might end up in a pickle if handled badly.

 

[Perp]

Without wanting to sound overly harsh, but to paraphrase, and to put it more gently than I'm sure my friend Dazz would :

My question is, if you are responsible for maintaining all the pipes and knew of these problems previously, and took no action to rectify the situation, are you not negligent in this case?

The lease says originating within the property, i.e. within the boundaries of the land, excluding infrastructure, not within the building.

 

[Ace in the Hole]

Ok, it probably comes down to interpretation.

I don't believe a box gutter and it's connective downpipe is classified as a:

waste pipe
drain
greasetrap
sewer

I'll see how we go.
Landlord accepted responsibility last time, as he said it was a strata issue.
Will see what his proposal is first.

 

[Mr. Fabulous]

Ok, it probably comes down to interpretation.

I don't believe a box gutter and it's connective downpipe is classified as a:

drain

I found this when I googled 'Is a box gutter considered a drain?':

"Built-in gutters, also referred to as "box gutters" are considered a concealed roof drainage system."

Landlord accepted responsibility last time, as he said it was a strata issue.

Okay, firstly he did not 'accept responsibility'. He simply stated it was a strata issue (probably to stop you from hassling him). Secondly, did you get that in writing? If not, then it didn't happen (from a legal point of view).

 

[HiEquity]

Lots of questions here:
- Sounds like a lot of problems could have been avoided if you just grabbed a ladder, climbed onto the roof and cleaned out the gutter... unless it's a design issue but how do you know unless you get up there?
- Is the roof common property or part of this strata lot?
- Is the landlord required to maintain the roof under the lease?
- If so, what provisions are in the lease regarding withholding payment until they fix?
- If not, why didn't you get up on the roof to fix?
- I think it's fairly clear the LL is not liable for any consequential loss with that clause you posted. I'm not a lawyer.
- If the roof is a strata company issue, did you follow it up with them?
- Strata company may be liable and able to claim under their insurance?
- Sounds like strata mgt is a problem if there is no maintenance of common areas? You need to do your DD on this prior to entering into a lease.

As you can see, there are far too many questions for anyone here to provide much real feedback. It all depends on the lease, the strata plan, the strata mgt company agency agreement, the insurance policies of everyone involved, the resolutions of strata mtgs etc etc etc. There is no "one size fits all" in this neck of the woods - everyone is an individual!

 

[Ace in the Hole]

Lots of questions here:
- Sounds like a lot of problems could have been avoided if you just grabbed a ladder, climbed onto the roof and cleaned out the gutter... unless it's a design issue but how do you know unless you get up there?
- Is the roof common property or part of this strata lot?
- Is the landlord required to maintain the roof under the lease?
- If so, what provisions are in the lease regarding withholding payment until they fix?
- If not, why didn't you get up on the roof to fix?
- I think it's fairly clear the LL is not liable for any consequential loss with that clause you posted. I'm not a lawyer.
- If the roof is a strata company issue, did you follow it up with them?
- Strata company may be liable and able to claim under their insurance?
- Sounds like strata mgt is a problem if there is no maintenance of common areas? You need to do your DD on this prior to entering into a lease.

As you can see, there are far too many questions for anyone here to provide much real feedback. It all depends on the lease, the strata plan, the strata mgt company agency agreement, the insurance policies of everyone involved, the resolutions of strata mtgs etc etc etc. There is no "one size fits all" in this neck of the woods - everyone is an individual!

Thanks for your detailed response.
It's a pretty big learning curve for me regarding commercial leases.
I'll see what the landlord comes back with, although my solicitor believes we would have a good case based on what I described to him, but I don't want to take it there.

I don't go climbing up 8m ladders any more if I can help it, don't have one that long anyway.

All internal box gutters are "design issues", ask any roofer, they always leak and cause massive problems, especially as this one has no overflow allowance, although it could have been installed with an overflow.

Are we supposed to deal with strata ourselves, or report to the property manager?
I would have assumed all problems would be reported to the property manager, to be passed on the the landlord.

In the 5 years we have leased the property, the only problem we have experienced continually is leaking windows and leaking roof.
I still don't believe the responsibility is ours to actively maintain all waterproofing issues the building is experiencing.

The lease does not specifically state the landlord must maintain the roof.
Does that mean when the roof deteriorates to a level where it needs replacing, we have to pay for a whole new roof?

What about windows leaking leaving large puddles in our office every time we experience heavy rain.
The windows are a poor design and they leak througout the whole complex.
Who should be responsible for fixing this? Strata, Tenant?

Thanks

 

[Dazz]

Sigh....you definitely don't need legal advice.


I'll attempt to be as practical and pragmatic as I can....


1. Take off your reading glasses.

2. Put away the Lease

3. Tell your lawyer to sit down and have a rest

4. Pick up the phone

5. Dial your very bestest roofing plumber contractor

6. Employ him to ;

• Clean out the old gutter if it is full of leaf debris and rust etc
• Cut off the old box gutter and throw it away
• Install the biggest newest largest capacity gutter that actually flows downhill
• Use Y points for the tops of your vertical drainage pipes
• Affix the box gutter to the wall with stud bolts more than is necessary
• Overload on silicone sealant - the tubes are worth about $ 6 a pop

7. Thank him and pay his bill immediately.


You'll get the following ;

• A dry office
• Back to work
• Staff off your back
• Control back of your workplace
• An instant stress relief
• A big pat on the back from both strata co. and Lessor
• You won't have to clean up all that gets wet and the dramas that ensue underneath

You haven't got a leg to stand on. Forget trying to get the Landlord or the strata company to fix the problem. You'll spend more on lawyers fees with them writing some poxy little 2 page letter, which will simply set in train some big long winded reply that will quote chapter and verse.

The ugly bit in all of this is you'll have to pay both your lawyer and the Landlord's lawyer to play letter tennis with each other. I can guarantee the Landlord will play letter tennis with you for years if you are paying all of the bills...

Your lawyer will encourage to argue some more and convince you that you have a good chance of winning. You haven't.

Spend the much smaller amount of money on a good roof plumber to actually resolve the issue. It'll be the cheapest and quickest way to guarantee you have a nice dry office.....but more importantly you'll keep control, the timeline will be both short and definitive, and the cost - both dollars and stress will be tiny compared to the "what are my rights" route.


It's an absolute no brainer what you should do.

 

[depreciator]

Spend the much smaller amount of money on a good roof plumber to actually resolve the issue. It'll be the cheapest and quickest way to guarantee you have a nice dry office.

Yep. Lawyer letters are between $2,000 and $3,000 a pop. The plumber will probably be less than the cost of one letter.

I've got a 10 metre long box gutter on the roof of my old warehouse building. I get up there three or four times a year and make sure there are no problems. I put an access hatch in the roof to make it easier. I'm not suggesting you do this, but I'd be sending a roofer up there regularly.

 

[Scott No Mates]

Touch the roof; it still leaks, your problem.

run away