This article is about who is responsible for maintaining exclusive use areas in Queensland bodies corporate and how section 192 of the Standard Module affects those obligations.
Maintenance responsibilities in bodies corporate can be complex, especially when exclusive use areas are involved. While the general rule is that the body corporate maintains common property, this obligation can shift when a specific area is granted exclusively to a lot owner. This article explores the legal framework, key adjudicator decisions and practical considerations for bodies corporate when dealing with exclusive use maintenance obligations.
The General Position on Common Property Maintenance
A common question that arises in bodies corporate is who is required to maintain what parts of the building, utility infrastructure and other areas of the scheme?
The general position is that bodies corporate are required to maintain areas of common property in good condition. This will typically extend to utility infrastructure (which is in essence, common property). However, there are of course exceptions, like anything in the legal world, to this general position.
Exceptions to the Rule: Maintenance in Exclusive Use Areas
One of those exceptions is where that particular area of common property is the subject of an exclusive grant to a specific lot.
In that case the obligations for the maintenance and operating costs of the area that is the subject of the exclusive use grant are shifted to the owner of the lot, unless the by-law granting exclusive use absolves the owner of that responsibility. We rarely see, for good reason, exclusive use by-laws that excuse the lot owner from their extended obligations.
If the by-law is silent on the issue, then section 192(2) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (the Standard Module) (the other modules have similar provisions) confirms that the lot owner is responsible for the maintenance and operating costs of the area.
Jarad Maher of our office previously wrote about the decision in Jefferson Villas [2024] QBCCMCmr 473, which can be accessed here, which clarified the position where a waterproofing membrane was on an exclusive use area. In that decision, the Adjudicator found that the body corporate was responsible for the water proofing membrane. This was the case even though that particular membrane may have been installed as the result of a lot owner improvement—although, in that instance, there was no conclusive evidence that the membrane was in fact part of a lot owner improvement.
Exceptions to the Exception: What Section 192(3) Really Means
The position in Jefferson Villas may seem to be unfair to the body corporate, however it does reflect the general maintenance responsibilities of a body corporate under the legislation.
Section 192(3) of the Standard Module states:
(3) However, if the lot was created under a building format plan of subdivision, in the absence of other specific provisions in the by-law, the owner of the lot is not responsible for:
- maintaining in good condition roofing membranes…; or
- maintaining in a structurally sound condition any of the following…not constructed by or for the owner:
- foundation structures;
- roofing structures providing protection;
- essential supporting framework, including load-bearing walls.”
Of importance is the underlined part of section 192(3). This means that the by-law that grants the exclusive use area can shift the maintenance obligations of the body corporate and the lot owner.
We rarely come across exclusive use by-laws that shift the maintenance obligations for the above elements to owners. They are typically silent on the issue or restricted to the usual maintenance obligations and do not cater for the exception to the general position which is established under section 192(3).
Using Exclusive Use By-Laws to Balance Maintenance Duties
While exclusive use by-laws are often established under the first community management statement by the original owner, bodies corporate should be mindful of possible unintended consequences of granting exclusive use.
Conversely, bodies corporate could use these provisions to provide an avenue to shift the maintenance responsibilities away from the body corporate and to an owner if it is appropriate in the circumstances.
Over the years we have come across all sorts of strange construction, titling and subdivision of lots, meaning that on a strict interpretation of the legislation, a party, possibly unfairly, is responsible for an element of the scheme that they have no access to or direct use of.
In such circumstances, bodies corporate can implement creative solutions under section 192 of the Standard Module to address any imbalances in the obligations of the parties.
The biggest hurdle to that of course would be getting the lot owner to agree with any such by-law, which would require a resolution without dissent to be passed at a general meeting.
Summary
Exclusive use areas can complicate maintenance responsibilities in a body corporate. While the general rule places the burden on the body corporate, section 192 of the Standard Module allows for exceptions—particularly where exclusive use by-laws apply. These by-laws can shift obligations to lot owners, but only if clearly drafted. Bodies corporate should review these provisions carefully to avoid unintended consequences and consider using them strategically to rebalance responsibilities. Achieving this, however, requires cooperation from lot owners and a resolution without dissent at a general meeting.
Brenton Schoch Grace Lawyers E: enquiries@gracelawyers.com.au
This post appears in Strata News #770.
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Read next:
- QLD: Exclusive Use Maintenance – ‘But the owner built it!’
- QLD: Exclusive use allocation requires no opposition
- QLD: Q&A Bylaws, General Rules & The Act
This article has been republished with permission from the author and first appeared on the Grace Lawyers website.
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