QLD: Q&A Who is Responsible for Maintenance of My Apartment Balcony?

Our 6-pack block of double brick units is about 25 years old. The iron balustrades have rust, and we are considering replacing them with powder-coated aluminium of a similar design. The existing railings are 960 cm high, and we have learnt that the current safety requirement is 1000 cm.

What are our obligations regarding replacement? Can we treat the rust and repaint the existing balustrades, or must we replace the balustrades to conform with the current height regulations?

Answer: There is no obligation to improve the balustrades or change the height requirements as part of the maintenance responsibility under the BCCMA (however, an obligation may exist through the advice from a certifier).

The answer to the direct question would require the engagement of a certifier. I can confirm, however that from a body corporate perspective:

If the lots are created in a building format plan – the maintenance responsibility and cost would usually fall to the body corporate;

There is no obligation to improve the balustrades or change the height requirements as part of the maintenance responsibility under the BCCMA (however, an obligation may exist through the advice from a certifier);

If an improvement is required or chosen by the committee – a different approval threshold at general meeting may be required depending on the ultimate cost.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #649.

Question: A support pole needs replacing on my very unsafe verandah. After back and forward emails, the body corporate admits responsibility but will not take action. How do I make the body corporate fix the beam?

My first floor unit has a veranda that provides a shaded area for the resident below. It has a beam that needs replacing.

The body corporate has been aware of the safety issue for five years. They finally accepted responsibility a year ago and have done nothing other than obtain an engineer’s report. Due to safety concerns, I am banned from using my veranda.

The body corporate claim they can’t get anyone to do the job. I’ve sent many emails. On many occasions, they didn’t respond. On another occasion, they told me it was my responsibility and when I asked for permission to have support poles installed, they acknowledged it was common property, and the body corporate’s responsibility.

I am at my wits end. How do I make the body corporate fix the beam?

Answer: If the body corporate refuses to actively maintain a part of the scheme that it is responsible for, follow these steps.

I presume that the beam is an essential supporting framework, the lot is created in a building format plan and there are no exclusive use conditions compelling the owner to maintain the beam. If this is not the case (and the body corporate is now disputing its responsibility over the beam) it would first be a question as to whether the owner or body corporate is responsible. To confirm this, you need to have the survey plan, engineer report and CMS reviewed.

If the body corporate is refusing to actively take steps to maintain a part of the scheme that it is responsible for, the owner can:

Write to the body corporate formally (through a lawyer if required) demanding that the maintenance obligation is complied with;

Obtain quotations for the required works and submit them to the body corporate for approval; and

Make a dispute resolution application in the Commissioner’s Office seeking an outcome that the body corporate be required to carry out the required works.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the April 2023 edition of The QLD Strata Magazine.

Question: My balcony is on title. My windows and doors from the loungeroom to the balcony leak. Who is responsible for repairing the leaks?

My private balcony is on title, it is not exclusive use. My windows and doors in the wall separating my loungeroom from this balcony sometimes leak during storms etc. The scheme is Building Format. Who is responsible for repairing the leaks and then re-painting the external face of the wall? Is this my cost, the body corporate, or do we go fifty-fifty?

Answer: Doors and windows leading onto a balcony that forms part of the lot are the responsibility of the lot owner.

Under a building format plan, doors and windows leading onto a balcony that forms part of the lot are the responsibility of the lot owner.

From description, that seems to be the case here.

You can find a guide to building format responsibilities on the BCCM website: Queensland Government: Building Fromat Plan

You should also review the by-laws for your scheme to see if there is any site specific consideration for this area.

And, if you want to check further you can ask your Body Corporate manager or Committee for confirmation.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #582.

Question: Approval has been granted to replace three of our building’s balcony balustrades. Now work is complete, is it reasonable to expect approval for future motions to replace the remaining balustrades?

Approval has been granted to replace an old steel balustrade with a glass balustrade on three balconies. Now work is complete, does that set a precedent for further motions presented? Is it reasonable to expect approval for future motions? An engineer’s report stated there is no reason why a glass balustrade cannot be installed safely on any or all balconies in the future.

Answer: It is not an absolute that prior approvals will result in future approvals.

Todd Garsden, Mahoneys:

Any improvement application is required to be considered on its own merits – so it is not an absolute that prior approvals will result in future approvals. However, all things being equal, it would likely be unreasonable for a similar improvement to be refused in the future.

A few peculiarities that ought to be considered for balcony improvements include:

certification issues (new standards would need to be met).

development issues (the council may have restrictions as to what can be installed).

ongoing maintenance obligations (if the owner is replacing the balustrade they would become responsible for its ongoing maintenance).

QIA Group:

Firstly it would depend on whether the Body Corporate replaced the balustrades or the individual owners.

If it was the Body Corporate then it would appear that the replacements would be intended to ensure a uniform look for the building going forward. I would also assume that there has been some discussion as to the type of balustrading that would be considered appropriate by the Body Corporate as a whole.

The issue for most Bodies Corporate with this type of work is really an aesthetic coupled with a need to conform to By-laws in terms of the outward appearance of the building.

If the Body Corporate is carrying out the work and the Owners have agreed to all do the same then the choice of balustrade should be up to the Owners – provided that building legislation and any planning requirements are met.

If the work was being carried out by individual Owners, I would assume that the Body Corporate as a whole would have considered if glass balustrades are appropriate and then when Owners apply, permission is given along those lines – also subject to building and planning requirements and the use of a licensed and insured contractor.

Then there would need to be a discussion as to ongoing maintenance responsibilities for the balustrades – which would be simpler if the Body Corporate carried out the works.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

QIA Group E: info@qiagroup.com.au P: 1300 309 201

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: Who is responsible for carrying out repairs to balconies when the problem was caused by a building defect?

Many balconies in our 40-year-old building have concrete cancer.

To carry out repairs, we need to remove all balcony tiles and replacing new concrete and coating it with a waterproof membrane.

Who is responsible for the cost of these repairs? Isn’t this a structural problem that would therefore be the responsibility of the Body Corporate? When the building was built, no waterproofing was installed. Isn’t this what the sinking fund is for?

Answer: Body Corporate obligations will be determined by the specific circumstances of each case.

The maintenance obligations of the Body Corporate will be determined by the specific circumstances of each case.

Importantly, the maintenance obligations will vary depending on whether:

the scheme is a building format plan or standard format plan, and

the balconies form part of the lot or are exclusive use areas.

Assuming that the scheme is a building format plan and that the balconies form part of the lot, the Body Corporate is responsible for ensuring that the balconies are structurally sound, and are fit for use for their ordinary purpose, including:

maintaining in good condition roofing membranes that provide protection for lots or common property; and

maintaining in a structurally sound condition foundation structures, roofing structures providing protection, and essential supporting framework, including load-bearing walls.

The Body Corporate will not generally be responsible for the floor tiles on the balconies that form part of a lot. However, where the replacement of the floor tiles is required as a result of structural or waterproofing issues which are the responsibility of the Body Corporate, the Body Corporate is likely to be responsible for the replacement of the tiles.

If the expenditure is budgeted (and appropriately approved), the cost of works can be covered by the sinking fund. If not, then the Body Corporate will need to raise a special levy or borrow funds to cover the cost of these works.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in the October 2021 edition of The QLD Strata Magazine.

Question: Our Body Corporate is intending to undertake a building wash, but this will not include our balconies. I know the wash will result in dirty water being deposited on the balcony windows and doors. Surely the body corporate needs to clean this?

The Body Corporate is intending to undertake a building wash of our highrise complex. The onsite manager has told me that my open air balcony walls and balcony ceiling will not be included in the building wash because they’re behind the balustrade which is not common property.

If the Body Corporate is responsible for painting these areas then why are they not responsible for maintaining them i.e. cleaning.

From past experience in other highrise buildings, high pressure water blasts cause dirty water to be deposited all over windows and glass doors on balconies. Why should lot owners have to clean this up if it is a result of the building wash?

Is there any legislation stating that:

is the areas within my balcony i.e. the walls ceiling etc the Body Corporates responsibility to clean and

the body corporate must rectify, fix or clean which resulted from the works they authorised.

Answer: If lots are damaged and/or dirtied as a result of the cleaning works, the Body Corporate should make good any damage or mess.

The Body Corporate is:

responsible for maintaining its common property;

not responsible for painting your balcony if it is not common property; and

not responsible for washing the areas of your balcony which are not common property.

If lots are damaged and/or dirtied as a result of the cleaning works, the Body Corporate should make good any damage or mess.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in the August 2021 edition of The QLD Strata Magazine.

Question: Who is responsible for the maintenance and replacement of frosted film applied to balustrade glass on unit balconies?

Is the body corporate or the lot owner responsible for the maintenance and replacement of frosted film applied to balustrade glass on unit balconies?

Because the balustrades on our privately owned unit balconies are on the boundaries of the lots, the body corporate is responsible for their maintenance. Does that responsibility extends to repair and/or replacement of frosted film that was applied to some of the balcony glass?

Answer: The maintenance responsibility for the frosted film will depend on where the film is located and who applied it to the balcony glass.

In a Scheme created under a building format plan, the Body Corporate is responsible for the maintenance of balustrades on the boundary of a lot and common property.

The maintenance responsibility for the frosted film will depend on where the film is located and who applied it to the balcony glass. For example:

if the frosted film has been installed on the outside of the balcony glass by either the Body Corporate or the original developer, the Body Corporate will be responsible for the maintenance of the film; and

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: If the body corporate wanted to tint the existing clear glass panels on the balustrades of certain units due to lot appearance, are they obliged to offer the same deal to all owners with clear glass balconies?

Our body corporate wants to tint the clear glass panels on the balustrades of certain units both for lot owner privacy and for the appearance of the lot. If they are prepared to apply a frosted film to the glass on some balconies, is the body corporate obliged to offer the same deal to all owners with clear glass balconies even if some units are not in public view?

Answer: In our opinion, the Body Corporate is not obliged to install frosted film to the glass of all balconies, despite it resolving to apply the film to selected units.

In our opinion, the Body Corporate is not obliged to install frosted film to the glass of all balconies, despite it resolving to apply the film to selected units.

An owner may put forward a motion to be considered by the Body Corporate which proposes that all clear glass balconies to have frosted film installed to reduce exposure to public view. If the Body Corporate passes this motion, the Committee is obligated to implement the Body Corporate’s decision and arrange to have the frosted film installed.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Our Body Corporate fees of $30,000 plus have been used for the removal and replacement of two separate private Lot balconies. No quotes, no budget no approvals, where do we stand as owners with our funds used within private Lots and not on common property?

We have a Body Corporate nonvoting committee member/caretaker that has removed and replaced balcony floor tiles within two separate private Lot balconies using over $30,000 of our BC levies to do so. There have been no budget allowance, no BC committee approvals or quotes or approved work orders.

Sadly the voting committee members are canvassed annually from the Caretakers letting pool. Other owners who wished to join the committee are slandered by the Caretaker. The BC voting committee all letting pool clients turn a blind eye on what is happening to our BC funds spent outside the common property requirements.

All lots include balconies to the common property boundaries. Both balconies had multiple layers of tiles re-laid therefore not laid when the property was first developed.

Answer: If you are concerned that body corporate funds are being spent in contravention of the legislation you can proceed to the Commissioner’s Office.

There are a number of potential issues here, so you need to obtain legal advice. We can only comment generally. The issues include:

whether the works to maintain the balconies were a body corporate responsibility.
We note that there are some circumstances where work within a lot will be a body corporate responsibility (such as where the balcony is a roofing structure providing protection to lots or common property and the membrane under the tiles has failed);

whether the requirements of the legislation were met regarding the required resolution to approve the works. The type of resolution required would depend on the cost of the work; and

how the caretaker was able to access the body corporate’s funds to be able to pay for the works, if the works were not approved by the committee (irrespective of whether there was a formal resolution, which there should have been) or body corporate.

If you are concerned that body corporate funds are being spent by the caretaker (or committee) outside of the above parameters in contravention of the legislation (and you believe no action will be taken by the committee), then you can proceed to the Commissioner’s Office.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #369.

Question: We have efflorescence coming up through our balcony tiles. We guess a water pipe is broken inside the floor slab. Is it our responsibility to investigate where the water is coming from?

Our building is 15 years old. We live in a top floor unit and have had efflorescence coming up through our balcony tiles.

We cannot understand where the water is coming from. We have regrouted the area and the same problem is happening again.

We can only guess that a water pipe may be broken inside the floor slab and coming up through the tiles on the balcony. Is it our responsibility to have an engineer come and investigate where the water is coming from or is it a strata responsibility?

Answer: In most circumstances, investigating these issues will the responsibility of the body corporate.

If it appears that the water is coming from a broken pipe inside a boundary slab on a balcony, it is the responsibility of the body corporate to find where the water is coming from and take steps to address the issue.

From experience it could also be that the efflorescence is caused by an issue with the waterproof membrane under the tiles or incorrect falls/drainage. In most circumstances, investigating these issues will the responsibility of the body corporate.

We recommend that you contact the body corporate manager or the committee directly to discuss your concerns.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #361.

Question: A quote from a glass cleaning company was only for the outside of the glass on our balconies. Isn’t the Body Corporate responsible for maintenance of the balustrade, including both sides of the glass on the balcony?

We recently undertook a building washdown and clean. Like most modern apartments we have glass balustrades on our balconies.

When we sought quotes for the work the contractor asked whether we wanted both sides of the glass cleaned.

I was surprised when he asserted that the side of the glass facing the unit was the owner’s responsibility to maintain and clean. All that was proposed in the quote was the outside facing side of the glass on the balcony.

I thought that the Body Corporate was responsible for maintenance of the balustrade and this includes both sides of the glass.

We are covered by the Accommodation Module.

Can you clarify this matter, please?

Answer: Lot owners will generally be responsible for cleaning the interior face of glass balustrades.

In answering the query, I assume that the query relates to a scheme which is building format plan where the balconies form part of the lots.

Generally, lot owners must maintain those parts of the balcony within their respective lots in good condition, and the Body Corporate must maintain that part of the balcony that is common property. Where a lot includes a balcony, lot owners will generally be responsible for cleaning the interior face of glass balustrades, and the Body Corporate responsible for cleaning the outer face.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #276.

Question: What part of each balcony is common property and required to be maintained by the body corporate? Is it merely the exterior of the glass surrounds or does it extend to the tiled floor and doors leading out to the balcony?

Our complex comprises two buildings each of 25 units all having substantial balconies. There are fixed glass panels and sliding glass doors leading out to the balconies. The balcony surrounds are largely glass, together with an area of rendered concrete and the floors are tiled. The scheme is a building format plan and the balcony is part of the lot.

What part of each balcony is common property and required to be maintained by the body corporate? Is it merely the exterior of the glass surrounds i.e. glass to be cleaned at the expense of the body corporate and the rendered concrete area to be repainted at the expense of the body corporate or does it extend to the tiled floor and the interior of the glass panels and doors leading out to the balcony?

Answer: The detailed and specific circumstances of each case will affect the relevant maintenance obligations.

I understand your query relates to a balcony which forms part of the lot in a scheme which is building format plan.

In relation to your query, the body corporate will not generally be responsible for the maintenance of:

fixed glass panels and sliding doors which connect the interior of your lot to your balcony, as they are within your lot unless they are a “foundation structure” or “essential supporting framework”; and

the floor tiles of your balcony, as they are within your lot.

However, the body corporate will generally be responsible for the maintenance of:

the glass surrounds of the balcony, including the cleaning of the exterior of this glass, as they form a boundary between your lot and the common property airspace; and

the rendered concrete on the exterior of the balcony surrounds, as it is outside the boundary of your lot.

Please note that the detailed and specific circumstances of each case will affect the relevant maintenance obligations.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #260.

If you have a question about balcony maintenance in QLD or something to add to the article, please leave a comment below.

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