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Maintenance Obligations

Maintenance disputes are the single biggest issue that results in adjudication applications and information inquiries to the Commissioner’s Office.

The general position is that;

owners are responsible for maintaining their own lots;

and the body corporate is responsible for maintaining the common property.

However, there are a number of exceptions to the general position and it is these exceptions that lead to disputes.

 

Plans of subdivision

Lots in a community title scheme are ordinarily created under a ‘standard format plan’ or ‘building format plan’ of the subdivision. This is determined by the type of survey plan lodged at the Titles Office for the lot when it was created.

In most (but not all) cases, apartments in a high rise will be created under a building format plan and freestanding houses will be created under a standard format plan. Townhouses can fall into either category and will simply depend on what the plan says.

 

Standard Format Plan Schemes

If the lots are created in a standard format plan, there is little change to the general position. However, if the lots are created in a building format plan, the maintenance responsibility becomes a little more complicated.

 

Building Format Plan Schemes

The boundaries of lots and common property in a building format plan are determined by the physical boundaries – such as the floor, wall or ceiling. As an example, two neighbouring lots in a building format plan will have a boundary in the midpoint of the wall.

In a building format plan, the body corporate becomes responsible for a number of items that would otherwise be the lot owner’s responsibility. These exceptions include:

railings, parapets and balustrades on the boundary of a lot and the common property;

doors, windows and associated fittings in a boundary wall of a lot and the common property;

roofing membranes providing protection for lots or the common property; and

foundation structures, roofing structures and essential supporting framework.

These exceptions do not apply to standard format plans.

 

Exceptions for lot owners

Regardless of whether the scheme was created under a standard format plan or a building format plan, the lot owner will remain responsible for:

  1. any fixtures or fittings that were installed by the occupier of the lot;
  2. any improvements that were made by lot owners;
  3. exclusive use allocations (unless the by-law provides that the body corporate is responsible);
  4. utility infrastructure that exclusively services their lot; and
  5. shower trays.

 

Consequential and incidental damage

If something in the scheme has fallen into disrepair (for example, a tap fitting that the lot owner is responsible for leaks) and causes damage to another part of the scheme (for example, the lot underneath gets flooded) it does not mean that each lot owner is responsible for the repairs to their own lot.

The lot that did not have the tap in good condition would be responsible for the repair to their lot and the repairs to the lot underneath.

If in carrying out those repairs, further work needs to be carried out (for example, removing the ceiling to access utility infrastructure) the additional repair works (for example, to replace the ceiling) would also be part of the original maintenance responsibility of the lot owner with the tap.

 

Steps to follow

The following steps will assist in determining who is responsible for maintenance in a community title scheme:

  1. determine the cause of the damage or the item that is in disrepair;
  2. review the survey plan to determine whether the relevant lot is created in a building format plan or standard format plan;
  3. determine the location of the cause of the damage or the item; and
  4. confirm if any exceptions apply.

 

This article was contributed by Todd Garsden, Special Counsel – Mahoneys Lawyers

Leave a Reply

  1. Lesley Ellis

    Would an owner be responsible for a drain in the floor becoming clogged and causing damage to the unit below? ( Building format plan) Or would the bc be responsible?

    1. Todd Garsden - Mahoneys

      Hi Lesley – if the owner caused the clogged drain they would be responsible for the repairs to the drain and the damage to the unit below.

  2. Chris Ross

    Thanks for the article. Interestingly I have been put through the hoops by the Committee of a CTS in the Gold Coast who refused to approve my renovations of my one bedroom unit. Having set in motion the reno I kept on with the renovation; and, I just kept submitting the approved Renovation Application and was continually advised that the Committee did not approve. No reasons were given. Further, no structural changes were made. The unit is 40 years old and nothing had been done to it during those years. The shower tray needed to be pulled out and re-waterproofed. The HWS was out of use by date.
    I also submitted an Application for replacement of the doors and windows and again was continually knocked back due to the Hob, which was Australian Standard in 1979 but that AS no longer applies. The Committee were impossible.
    I

    1. Todd Garsden - Mahoneys

      Hi Chris – that sounds more like an improvement approval issue through the by-laws than a maintenance issue. The by-laws may have required approval but the committee must act reasonably in considering any application.

  3. Chris Ross

    I lodged a Conciliation Application with the Commissioner’s Office regarding the Renovations; and, it was during that Conciliation that the Chairman finally gave approval but I did have to get Certification of the Works. That got done. My next job was to pursue the application for the windows and doors. I finally got approval for that early last month but then further delays due to the company I had engaged fitting me in. As a result of all of this nonsense I have lost rent on the property from January 2020 todate. Anticipated finalisation of the renovation is end of August.
    Has anyone else experienced this sort of thing from a Committee?

  4. Nev Davis

    Who would be responsible for a window latch on a window that opens onto common property in a high rise building

    1. Todd Garsden - Mahoneys

      Hi Nev – that sounds like an associated fitting in a boundary wall of a lot and the common property which would make the body corporate responsible

  5. Douglas Jones

    This provides timely clarification of where responsibility lies for water damage. We have had a few instances of burst flexible hoses causing serious damage. We have now started a programme of annual inspection of all such fittings in our 79-lot building, with the BC paying for the inspection and owners to pay for replacements.

  6. dav par

    “doors, windows and associated fittings in a boundary wall of a lot and the common property;” are BC responsibility.
    So, does that mean:
    1 if a door, window or wall that is not in a boundary wall of a lot and the common property, then it is an owners responsibility to maintain door and window sealing around those as well as any external wall flashing and sealing at floor level?
    2 any tiling, grout and sealing around a tiled balcony area within the BFP?
    If a boundary is the mid point, does it mean, where the balcony tiles meet a boundary block wall behind which is common property stairs, that any joint sealing is the responsibility of the owner to maintain?
    3 The assumption is that a membrane under the tiles that forms the ‘roof’ over the lot below is the BC responsibility but the tiles and grout maintenance are owner responsibility?
    4 What is an associated fitting; a remote controlled motor that raises and lowers a garage door where the garage space is on title or only the door. side slides, door support brackets and the lock?

    1. Todd Garsden - Mahoneys

      Hi Dav,

      To answer each of your questions:

      1. assuming the door was within the lot – yes, it would be the owner’s responsibility;

      2. the tiling, grout and joint sealing would be the owner’s responsibility;

      3. yes – that is correct; and

      4. those items would all be associated fittings.

  7. Ken Francis

    How would balcony tiles (in a multi story unit complex) be treated as part of an owners lot? Would it be classed as part of the building’s structure (sat/glued on top of the membrane) therefore a Body Corp responsibility or an owners responsibility ?

    1. Todd Garsden - Mahoneys

      Balcony tiles are part of the lot and the owner’s responsibility as they are not structural elements.