Question: If we are under the building format plan, are the roof and foundations the lot owner’s or the body corporate’s responsibility?
Our complex has townhouses in blocks of two and four under the building format plan. We are in a block of two lots.
The building is surrounded by a private yard, so the property’s boundaries move from the building wall to the private yard boundary.
The boundary of the private yard is unlimited in depth and height, so all external maintenance is the responsibility of the owner.
I’ve been told that the roof and foundations are the body corporate’s responsibility.
Answer: Usually, the roof of a BFP is common property – it is extremely rare for it not to be.
Usually a building format plan:
- defines the boundaries of a lot according to the structure (i.e. the walls and ceiling); and
- is specifically limited in height and depth – which is set out in the plan.
These are key distinctions to a standard format plan.
Usually the roof of a BFP is common property – it is extremely rare for it not to be. This is set out in the Land Title Act and the Registrar Direction for the Preparation of Plans.
The only way to confirm would be to obtain specific advice after reviewing the plan.
This post appears in Strata News #726.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
Re LookUp#688 on April 2, 2024 and MichaelK re Lot Boundaries. A big shout out to Michael and Nikki for including the link to the Title’s Office Practice Directions re Boundaries.
Over the last few years, I have seen an increasing number of citations of these Practice Directions by the BCCM Adjudicators, but generally tucked away in the footnotes of their Rulings without (understandably) a link to the Directions. Now we have it!
These Directions add a level of detail to the main provisions of the Land Title Act, eg s.48(C) and s.49(C). For example, where the actual lot boundary is in relation to a balustrade on a private balcony, or where the ceiling boundary is on a private balcony without an actual ceiling. Adjdn’s include Pinnacle Whitsunday [2021] QBCCMCmr 191, and Tranquil Quays [2023[ QBCCMCmr 344.
I also have seen increasing Adjdn’s centered on “Who is Responsible for What” re maintenance responsibilities, particularly re balconies. These often turn on the initial question of whether the property element involved is common pty -v- private pty. I suspect that many Committee members are not even aware it is a question, let alone how to answer it. MichaelK’s information will help now.
Two recent Adjdn’s demonstrate this problem, Waves [2023] QBCCMCmr 505, and Waves [2024] QBCCMCmr 103. The first question for any proposed work should be “Is this a body corporate matter?” In both of the above Adjdn’s, the work involved concurrent maintenance applied to common pty and adjoining private property. and the Cmttee originally proceeded without regard to Who owns What. It was a real Manuel Moment for them when they realised that not all external windows and doors are common pty.
Re:WINDOW BOX
With acknowledgement to Mathew Hunt Legal response, I had a similar situation on a multi-story building where planter boxes were positioned on the outside of a window 3 levels from ground. The issue wasnt a common property one, but one of insurance and who is liable. We were advised that window boxes generally do not have sufficient methods of securing them, making them easy to dislodge and they tend to deteriorate in the weather and are not usually maintained. The issue was that should the window box fall it would fall onto common property and may actually kill someone in common property. Whilst the legal fraternity may seek to get the Owner to pay, it may end up that the only insurance on the property is BC insurance or (and im not sure if this is true) may ask each owner to share the liability equally.
Good evening,
My partner and I had some equipment (bikes etc) chained up under the building in which we rent (we rent a unit). Body Corp used bulkcutters to remove our equipment last week without any notice. They claim it was taken to the dump. However, no items have been received, according to the dump’s onsite manager. What rights do we have as tenants please? Are we within our rights to be compensated for our forcibly removed/stolen equipment? Thank you.
Kind regards,
Stephanie
Hi Stephanie,
Jessica Stanley, MATHEWS HUNT LEGAL has responded to your comment in this article:
QLD: The golden rules of bylaw enforcement + Q&As
we are owners in a small 14 lot development the lots are approximately 1000sqmtrs , each lot has a 3mtr common property easement between each lot , we have had on going troubles for over 18 months and despite issuing form 10s to 3 lot owners the committee disregards them as it is the committee executive that are the recipients of the form 10 s . there are no exclusive rites to the common property under the CMS statement , they have now come up with a register of use of the common property to their benefit , we have decided to sell to get away from this type of behaviour that this dysfunctional committee promotes , which has now led to another issue that the QLD Office of Fair Trading has advised our estate agent to remove him self from our intending sale , we have reduced the price quite a few thousand below the original purchase price , it is now classed as unsalable land , as the committee members have encroachments all over the estate including house buildings ,fences that take all the common property up no access, walkways where no access is allowed to common land. it is near impossible to sell this land
We have an issue that has just arisen following a Building Health and Safety report on our apartment block. An area to the side of the stairs leading from the basement garage to the apartments is classified as common area. On the Subdivision Plan it is noted as Storage Area, while on the architect plans, which owners were given, the same area is noted as Bike storage.
The Building Health and Safety Inspector deemed that the bikes stored in that area constitute a low level risk and recommended that the bikes be relocated. The few bikes stored there do not in any way obstruct the stairway and are located within a recess mostly behind a separation wall. Relocation into the garage area leaves the bikes vulnerable to theft, a common occurrence in other apartment buildings.
Our BC Manager insists that the Sub-division Plan, showing the area as only ‘storage’, therefore Common Area, overrides the more detailed architect plan for ‘Bike area’, bikes being classed as personal items, and that we have to comply with the recommendation.
Is there a need for the Owners to reclassify the area into a bike storage area if we wish to continue using it as a bike storage area?