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QLD: Q&A Responsibility for maintenance of common property

The LookUpStrata Team
laundry sink

Qld lot owners would like to know who is responsible for the maintenance of common property, such as cleaning the roof and repairing fly screens.

Before delving into our numerous Q&As about QLD apartment maintenance and who is responsible for what, take a look at this recording of a BCCM Webinar: Building Format Plan Maintenance – Body Corporate and Community Management from Nov 2021

Table of Contents:

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Question: I need to turn off the water to the building to replace my isolation tap below the laundry sink. Should I contact the corporate body to advise about the water stoppage?

The tap that isolates my unit’s water is under our laundry sink. It needs replacing.

As the water will need to be turned off to the building to replace this tap, do residents have to be notified?

Should I organise a plumber or contact the body corporate? Please outline the steps I need to take.

Answer: If you require a water stoppage to the building, you would contact the body corporate manager or committee and arrange a time.

There is no fixed protocol for handling these requests, although it is a common issue.

Generally, if you require a water stoppage to the building, you would contact the body corporate manager or committee and arrange a time it can be done. Depending on how long you require the stoppage, the body corporate might ask for a reasonable period of notice so they can advise occupants. They may also stipulate time periods in which the work can occur, say from 9 am to 3 pm, to avoid disruption to other residents.

The body corporate can’t really say no to a request like this. The legislation requires you to maintain your property in good condition and occasional water stoppages are unavoidable. However, it is important the request is reasonable. If you just call up when the plumber is onsite and ask to turn off the water, the response may be negative.

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

This post appears in Strata News #677.

Question: Our body corporate is repairing roof panels. Who is responsible for removing and replacing lot owner improvement items such as solar panels and air conditioning units?

Our body corporate is carrying out required works on the common property. We are replacing roof sheets. There are lot owner improvements on the roof, such as solar panels and aircon units. These items are in good condition and have not contributed to the problem that the works are addressing. Who is responsible for the cost of removing and reinstating the solar panels and aircon units?

Answer: The body corporate is responsible.

The body corporate is responsible for removing and replacing the lot owner improvements in this circumstance (assuming that they have been properly approved in the past). In Esplanade [2014] QBCCMCmr 449, the adjudicator relevantly provided (our emphasis):

This then leads to questions about whether the body corporate is also responsible for restoring owner improvements damaged by replacement of the waterproofing membrane, whether owners gain a windfall if the body corporate replaces fixtures that are no longer in good condition, and whether owners should contribute to the extent their fixtures have exacerbated damage to the membrane?

The answer to this controversy is deceptively simple. Esplanade is a high rise building registered under a building format plan of subdivision. The body corporate is responsible for ensuring the roof of this building is waterproof. Specifically, the legislation requires the body corporate maintain roofing membranes in good condition (Standard Module, 159(2)(a)(iii)). To the extent the body corporate damages tiles or other fixtures in replacing a waterproofing membrane, the body corporate must subsequently rectify that damage.

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

This post appears in Strata News #648.

Question: The committee is not taking action on known termite risks. As a lot owner, what can I do to quickly get a termite baiting system installed and prevention carried out?

No pest inspections or treatments had been carried out in our 8 lot, 40 year old scheme for the past two years. In 2022, the committee voted to approve a pest and termite inspection quote. The pest inspection/treatment has just been completed. Concerned, I requested from the body corporate manager reports dating back to 2019 when I purchased my unit. All reports identified many water leaks, timber rot and termite risk factors, with strong recommendations for termite baiting or chemical barrier. The committee has taken no action to address any of the reported risks apart from a quick termite dusting on my lot. As a lot owner, what can I do to quickly get a termite baiting system installed and prevention carried out?

Answer: Work with your fellow owners on a solution.

To get things moving quickly, you need to work with your fellow owners on a solution. If you are on the committee, work within that group. Communicate with the other members, discuss the issue with them and see if they agree. Do you have a quote for a termite barrier? If not, contact the pest inspector and ask them for one. Ask for a vote to approve the quote if it is within the committee’s limit. If it is above the limit, an EGM might have to be called.

If you are not on the committee, you can still communicate with members and ask them to take action. Again, get a quote a submit that. Maybe get a copy of the roll and correspond with all owners so they are aware of the reports and the risk. See if it is possible to be a consensus for action.

If you can get a discussion going, hopefully, you can get to the point where a decision can be made. If you can’t get people to engage with you, you’ll have to go down the formal paths. Submit a committee motion or motion to be included in the next AGM/EGM notice. If necessary, file a claim via a commissioner’s office. These solutions aren’t quick, but they are the avenues available.

If you thought it was serious enough and the evidence from the pest controller was damning, you could perhaps seek an urgent adjudication. That’s fairly extreme, so you would need good evidence calling for immediate action.

Remember, in these situations, other owners might not be reacting simply because they are unsure of what to do. It is important to keep your communication clear and logical. Sometimes owners are afraid to spend money and you need to remind them that they are obliged to maintain body corporate property. It can be hard to get people onside so demonstrate that you are reasonable in your communication and open to working with people. Think about the owners at your site and what will work with them. Is an informal meeting via Zoom or onsite more likely to produce a positive outcome than calling an EGM? If yes, then follow that path. Maybe start by bringing one or two other owners on board and then discuss with the rest. Think through the pathways of resolution to try and determine the best course of action.

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

This post appears in Strata News #646.

Question: Our building has a ventilation system servicing the apartments. The vent in our bathroom is not working. I’ve informed the strata manager but the matter has not been resolved. Isn’t this an emergency repair?

I live in a walk-up apartment building on the Gold Coast. The building has a ventilation unit and ductwork in the roof, that services the apartments. One of the vents in our apartment is no longer working. It is not extracting any air at all. This is located in the ensuite, a room that has no window.

We have 2 other vents, in the bathroom and the laundry, that are both working.

This fault was reported to the Body Corporate Managers and BC Committee. An electrician attended, however even though they agreed that our duct was not working, the fans were working and he could not locate the problem. The advice given was to call a tradesperson with specific knowledge of ventilation and ducting system.

The Body Corporate Committee is now refusing to do anything else to fix the problem of our non-functioning duct.

There is now no ventilation at all in our ensuite to extract stale air from the toilet or steam from the shower. It is my understanding that it is illegal for a bathroom/toilet without a window to not have mechanical ventilation, therefore, I would class this as an emergency repair. What are my options if the Body Corporate Committee refuses to fix this?

Answer: Avoid assuming this is a body corporate issue unless you can be sure it is.

Your first step is to establish if it is the body corporate’s responsibility to fix. In this case, while I agree it seems as though this is a body corporate responsibility, you would need to also eliminate the possibility that you have any responsibility as an owner, for example, that you have failed to maintain any part of the ducting you were supposed to maintain. Please note, I’m not suggesting you haven’t met your responsibilities, I’m saying you should avoid assuming this is a body corporate issue unless you can be sure it is. Given the body corporate are seemingly not engaging with you about it, I wonder if they have some basis for believing it is not their responsibility.

Assuming it is a body corporate responsibility, you would put a quote to the body corporate to fix the problem. It isn’t clear from your query if you have done this following the first contractor visit. Noting their recommendation to get a specialised tradesperson in, you should try to arrange that, if you haven’t already done so.

I can’t comment if this is an ‘emergency’ repair or not. Again, best not to assume it is, or that it is ‘illegal’, as you suggest, and instead, get some concrete advice one way or the other. Body corporate legislation does not define ‘emergency’.

Ultimately, if you have established all of the above, put a motion to the committee (which is your right as owner) and if it is refused, you can dispute that decision through the Commissioner’s Office.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the December 2022 edition of The QLD Strata Magazine.

Question: If the owner/occupier or invitee damages a lot’s garage door, should the owner/occupier or the body corporate pay for repairs to the garage door?

Under the Building Format Plan, the BC is responsible for the maintenance of the garage doors.

If the owner/occupier or invitee damages the garage door, then it is not a maintenance issue. Should the owner/occupier pay for repairs to the door? If so, and the BC instructs the owner/occupier to repair the damage, within a reasonable time frame. If the instruction is ignored, can the BC pay to have the damage repaired and seek reimbursement for the cost of repair and if the owner/occupier does not pay by the specified time start legal proceedings?

Answer: Ultimately, the best thing to do might be for the Body Corporate to instigate a conversation with the owner about what the realistic options are.

The first thing to establish is whether the owner has admitted liability or whether there is clear evidence that they caused the damage. Without this, it is difficult to say that they are responsible and it may be that the Body Corporate has to accept the costs.

Next, it has to be considered whether an insurance claim can or should be made. What is the cost of the repair? Does it exceed the excess? The owner has paid for their part of the body corporate insurance so they are entitled to make a claim if they want. If a claim is applicable then it is likely that the owner would be responsible for the excess with the insurer paying the rest.

If that’s the outcome, so be it. However, this solution can cause some problems for the Body Corporate. More claims push premiums higher. They can lead to insurers not wanting to insure the scheme. The Body Corporate might want to make a value judgement here. If the claim is for, say, $1000 and the excess is $500 perhaps an agreement could be reached with the owner where the owner pay the excess and the Body Corporate pay the remainder. It’s not ideal, but it might still be a better outcome for the Body Corporate overall to accept a $500 cost now against a saving on a higher insurance premium later.

If it is not an insurance matter, (take a look at your by laws)[https://www.lookupstrata.com.au/qld-general-rules-queensland-bylaws/]. Do you have any clauses in the by laws that allow the Body Corporate to recover costs, particularly in the event of a breach of a by-law? Perhaps the owner could be sent a breach of by-law notice. If you have a quote for the repair, it could be sent to the owner.

After that, things can get interesting. The Body Corporate has an obligation to repair and maintain the common property, so by implication it should undertake the repairs and, if it wants to recover its costs, go through the legal procedures afterwards. However, here you have a situation where a garage door is damaged. Probably it only affects the one lot. It may not be correct, but if they think the risk is low many Body Corporates may choose to leave the matter until the owner takes action. That action could be to repair the door or it could be to instigate legal action against the Body Corporate. The owner might win if they make a claim, but if the Body Corporate if sufficiently phlegmatic they might see that as a reasonable risk.

Other Body Corporates might choose to undertake the repair, but issue the owner with an invoice. They could list it as a debt against the owners lot. Is this correct practice? Maybe not, but if the owner is responsible and not holding up their hand some body corporate’s might see this as a reasonable way to put pressure on the owner.

The Body Corporate might also consider that the owner has an obligation to maintain their lot in good condition and that they are entitled to take action if this is not happening. They can look to reclaim costs in that instance. To do so they should go down the legal channels available.

Ultimately, the best thing to do might be for the Body Corporate to instigate a conversation with the owner about what the realistic options are. Some owners may be very reluctant to accept any costs, but the Body Corporate needs to point out that the more costs it bears the higher levies will have to go. The owner may benefit if the Body Corporate pays the costs in this instance, but then lose out when the Body Corporate pays the next owner and the next owner after that. The owner should be happy that the Body Corporate is diligently assessing issues and doing what it can to control costs for owners – that’s to their long term benefit. Not all owners can appreciate this but the matter is at the heart of body corporate administration and if owners can understand that, the scheme will be in a healthy position.

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

This post appears in Strata News #615.

Question: Can a Principal Body Corporate supply security services to subsidiary schemes?

Answer: Any existing unlawful agreement should cease, and the subsidiary scheme should enter into a security contract directly with the security provider in respect of its common property.

The Body Corporate and Community Management Act and the regulations permit a Principal Body Corporate (‘PBC’) to provide a range of services to subsidiary schemes. These services are specifically stated in the regulations to include maintenance, communication, and domestic services. Examples are provided for each category of services.

What usually happens is that the PBC signs an agreement with a service contractor and then signs agreements with the subsidiary schemes for the costs of those services, just as a normal body corporate does when providing a service to an owner (such as mowing their private property).

However, the regulations do not refer to the provision of security services, but those services are sometimes supplied by a PBC to a subsidiary scheme. In a recent adjudication, it was held that a PBC cannot provide security services to a subsidiary scheme. The result of this case means that any existing unlawful agreement should cease, and the subsidiary scheme should enter into a security contract directly with the security provider in respect of its common property.

Peter Hunt Mathews Hunt Legal E: peter.hunt@mathewshuntlegal.com.au

This post appears in Strata News #614.

Question: Do actions/decisions taken in the preceding years override body corporate by laws?

Our small body corporate of 6 detached lots each with a separately fenced property and a common property driveway was formed in 2009. Being small and formed relatively recently, there is not a large amount in the sinking fund.

Do actions/decisions taken in the preceding years override body corporate by laws? Two situations have recently arisen:

  1. Individual owners have always undertaken their own gutter cleaning, but now a newer owner, who has not cleaned their gutters, is blaming the body corporate for water ingress due to a build up of leaves. They are requesting the body corporate cover subsequent repairs as the body corporate did not organise or pay for the gutters to be cleaned.

  2. Another new owner is demanding body corporate pay for the removal of a tree on his exclusive use area, citing it is a safety hazard. In the past, 3 owners have all paid for trees to be removed from their properties as the trees were very large and planted close to the houses.

Does this constitute a precedent that can be adhered to?

Can a vote be taken to deny the requests for the body corporate to pay for these repairs?

Answer: If the gutters are body corporate responsibility and the body corporate hasn’t maintained them then it seems there is a reasonable claim against the body corporate.

The question to be asked is whether the works required are body corporate responsibility under the terms or the legislation and your current CMS. If the answer is yes, the body corporate is obligated to undertake the works. If not, not.

Precedent doesn’t really come into play unless that precedent changed the by-laws. For this reason, owners really shouldn’t make up their own local rules as it is hard to apply them consistently over time. New owners purchasing into the scheme can only know the official rules and that’s all they have to and expect to adhere do.

In the case of the gutter cleaning, you should check the rules for your scheme considering whether it is a standard or building format plan and any exclusive use areas to help determine if the guttering is a body corporate responsibility. It isn’t always easy to work out, but your body corporate manager should be able to assist or you can check the BCCM guides on responsibility.

If the gutters are body corporate responsibility and the body corporate hasn’t maintained them then it seems there is a reasonable claim against the body corporate. If not, there may be a counter claim against the owner if any body corporate property has been damaged. The legislation is a two way street.

For the tree in an exclusive use area – this sounds like an owner’s issue as owners are responsible for maintenance costs of items inside an exclusive use area. The BCCM has a good training module on this topic: Online Training – Unit 4 – Maintenance.

Perhaps the body corporate could require the owner to remove the tree if it is a safety risk to the site?

In terms of whether votes can be taken to approve or disapprove payments, the answer is yes. This could be through either a Committee meeting or general meeting of owners. However, if the outcome of the vote contravenes the by-laws or the legislation there could be problems. The vote may be challenged and overturned. There can be disputes, costs and a good deal of unhappiness. Owners should always seek to vote in adherence to the law rather than on the basis of what feels right or what has happened in the past. This can be harder than it sounds.

Precedence is an interesting idea in body corporate as ideas around it can complicate many decisions. My view is that whatever has happened in the past, the body corporate still has to make the best and most informed decision it can in the present. So, if bad decisions were made yesterday that is not a rationale for continuing to make them today. And, if the current laws don’t fit a desired outcome, it is better to seek to a change to those laws now, rather than looking to bend or ignore the laws.

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

This post appears in Strata News #608.

Question: When we recently bought an existing property we noticed the pergola was neglected. We’ve now been advised it is our responsibility to maintain. As pergola has been there for 30 years, wouldn’t the maintenance be body corporate responsibility?

We recently bought in a 30 year old gated community. I noticed the pergola needed painting and way was badly neglected. I’ve been advised that the original owner built the pergola over 30 years ago and, as it was installed by the lot owner, the maintenance was the owner’s responsibility.

I had no knowledge of the pergola being added on or that it was my responsibility.

If the pergola has been part of the property for so long and is deemed to be part of the property for insurance purposes, wouldn’t the maintenance be body corporate responsibility?

Can I arrange for the pergola and add ons to be included in the painting and other maintenance program of the body corporate?

Answer: You can’t afford to make assumptions in a body corporate, you need clarity.

The length of time something has been in place is not grounds for who takes responsibility for it. It all comes down to whether it is common property or your responsibility as a lot owner.

To determine that, you will need to know the plan of subdivision and Regulation Module applicable. You will have this information as part of your purchase documentation. It should be part of your Community Management Statement and if you don’t have that, you can obtain it from either the committee, via your body corporate manager, or from the Titles Office.

You can also do a search of body corporate records to see if there is anything in the minutes relating to the pergola.

While I am not sure what you mean by ‘add-ons’, I assume you may want to make improvements to the pergola. All of the above will determine how you can make the improvement. If it is common property, the committee might be able to approve it. If it is part of your lot, you may be able to make the improvements subject to any applicable by-laws.

Your query suggests there are quite a few things relating to your purchase that you are not entirely clear on and in which you have made an assumption, or have relied upon someone else’s interpretation. To be blunt, you can’t afford to make assumptions in a body corporate, you need clarity. By obtaining the above information (and the current information at that, you don’t want to rely upon outdated details), you will be in a position to move forward.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #589.

Question: In a standard format plan, who should pay for regular termite inspections of the dwellings? Is this the responsibility of the body corporate or the lot owner? More importantly, is the body corporate allowed to pay for this?

Answer: In a standard format plan, the lot owner is responsible for the cost of pest control at their unit, however, the Body Corporate should want to do what it can to minimise the risk.

In a standard format plan, the lot owner is responsible for the cost of pest control at their unit.

However, when it comes to termites, placing that responsibility on the owner might not be in the best interests of the Body Corporate.

In a site where the risk of termites is high – most of Queensland – it makes sense that the Body Corporate should want to do what it can to minimise the risk. If it doesn’t and termites enter a scheme, they can quickly do large scale damage that won’t be covered by the scheme’s insurance.

Risk mitigation usually means checking all lots on a periodic basis as the start point. If the body corporate pays for this, they can guarantee the risk is minimised. If they leave it to owners, as the legislation indicates, some might do it and some might not and the risk to the body corporate as well as individual owners, increases.

Is there a way out of this dilemma? It’s not easy to do it and remain within the boundaries of the law, even though strict adherence to the legislation can produce a sub-optimal outcome.

The simplest solution here would be for a legislation change to occur to accommodate this kind of situation. Don’t hold your breath waiting for this to happen – legislation change tends to be glacier slow at the best of times. In the interim owners have to make real life decisions.

As such, some schemes just have the body corporate pay for the inspections regardless. It’s not technically allowed, but it may be hard to say that the body corporate is acting unreasonably – bearing in mind that ‘reasonability’ is one of the standard tests of body corporate decision making. If a scheme wants to do this, I think they may be OK provided they have established the risk, clearly advised owners of the situation and that there are no major objections from owners. You have to acknowledge that this solution is not technically correct, but is it better than having termites attack the scheme?

Otherwise, schemes might need to look at whether owners can be required to conduct the testing. The risk level would probably have to be high to the point that safety was endangered to make this a requirement. Perhaps owners could be advised that they would be considered negligent in the event that termites attacked their building and that the body corporate would pursue them for costs in that event. However, while warnings like this might provoke some owners into action, they don’t stop the termites who are not known for respecting body corporate boundaries.

Probably the best thing Body Corporate can do is to make sure they are having a clear and open conversation with owners about what is required at the site and the best way to control it. Work with your pest controller to establish your risk levels and make sure owners are aware of the situation. Raise the issue regularly and work through the issue until you get to a framework that protects your site.

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

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: Our apartment block’s roof garden can be accessed by the 6 top floor units. The body corporate has always maintained this space, but recently said they will no longer pay for this. How have the BC got it wrong for so many years?

For around 15 years, the body corporate has maintained our roof gardens of our 6-floor apartment complex. This roof protects all 40 units. Only the 6 top floor lots have access to this area.

The body corporate manager recently advised owners that the bc was no longer maintaining the roof space. How have our committees and body corporate managers got it wrong for so many years?

Answer: How does something like this happen? All too easily.

How does something like this happen? All too easily. Plans and documents aren’t always 100 per cent definitive and the people interpreting them don’t always have the full range of knowledge needed to make an absolute determination. The first year or so of a building when decisions like this tend to get made also tend to be the most chaotic. There’s a rush to get things done and errors get made. Once a decision gets made, people think it is set in stone and no one thinks to challenge it. There are all sorts of human reasons why this kind of situation can arise. The question is, what happens when you do become aware?

In this case, at least you seem to have a body corporate manager with the alacrity to see the mistake and to bring it to your attention. If you wanted any verification of the opinion you could seek the advice of a strata solicitor.

The new understanding then needs to be assimilated and management of the plan, particularly levies will change. There are going to be some winners and losers from that, but that’s how it goes. A mistake may have been made in the past but once the body corporate is aware of it, it can’t continue to perpetrate the same error in the future. Can there be any adjustment for payments made in the past? You can’t put the toothpaste back in the tube once it is out and unless there has been a deliberate cover-up of information it is hard to rectify past events.

You might also ask whether the body corporate can prevent this kind of thing happening in the future? Probably not 100%, but there are some steps you can take. Active Committees can help stay on top of issues like this. Owners need to make sure they are aware of all aspects of their scheme and read carefully though distributed documents such as AGM notices. To assist them, the Body Corporate should look to work with managers who are knowledgeable and have capacity to put time into your scheme – it sounds like you have one – they may cost a bit more but they can help save you from critical errors. Ultimately, there are no guarantees, but with diligence and commitment this kind of situation can be avoided.

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

This post appears in the August 2022 edition of The QLD Strata Magazine.

Question: Who is responsible for clearing blocked sewer pipes that have been blocked by baby wipes, chux clothes and other things which are not supposed to be flushed down the toilet?

Who is responsible for clearing blocked sewer pipes that have been blocked by baby wipes, chux clothes and other things which are not supposed to be flushed down the toilet?

On this occasion, the sewer pipe services 4 apartments that sit directly above each other. I understand that the body corporate is responsible for ‘maintenance’ and keeping common property infrastructure in good repair but this is not a lack of maintenance but the negligence of one of four residents?

Answer: If you have definite evidence that a lot owner has done damage to the body corporate property then you could try and reclaim costs.

If the pipes are body corporate property then the body corporate is responsible for maintaining them.

If you have definite evidence that a lot owner has done damage to the body corporate property then you could try and reclaim costs. Perhaps issue them with an invoice and see how they respond. However, if they refuse then you would have to look at legal action as a next step. My guess is that in this instance, even if you know which lot is likely to have caused the issue, it would be difficult to ascribe responsibility to one party.

Unfortunately, problems with people flushing wipes and other items are on the increase. It’s hard to stop, but a strongly worded letter – perhaps with photos of the damage – might help, or you could knock on someone’s door and ask them if that was possible.

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

This post appears in Strata News #569.

Question: Our committee has continuously voted against painting our 16 yr old building due to the cost. We don’t have sufficient money in the sinking fund. What do we do?

Our building is over 16 years old and it has not been repainted. The body corporate committee members have continuously voted against having the building repainted because of the high cost. They have also voted against increasing the body corporate levies, so the sinking fund does not have a sufficient balance to pay for painting. What do we do now?

Answer: You will need to get a majority of owners to agree to the works which means presenting proposals at a general meeting.

William Marquand, Tower Body Corporate:

The legislation states that a body corporate must maintain the common property in a good and structurally sound condition. This includes painting, so by implication, the work should be done.

If only life were that easy.

In reality, you will need to get a majority of owners to agree to the works which means presenting proposals for them at a general meeting.

One issue you raise here is that it seems to be the committee blocking the idea. Committees have a fair bit of power, but they are also restricted in their decision making and should be working in the interests of the body corporate. They don’t have a veto on issues like this.

As an owner, you can put forward motions to have the works done at a general meeting. These should be accompanied by quotes, although they aren’t always easy to obtain for an individual owner looking at a large project like this. Contact some relevant contractors to see what they think. If you struggle to arrange good quotes, maybe you could look at a motion that says that the committee must seek and present quotes.

You could also submit motions for the next committee meeting to prompt them toward further consideration – this at least keeps the item on the agenda so people can see how the committee are voting. A softer alternative would be to ask the committee to do a poll of owners to see if they would like the building to be painted. If enough people reply in the positive, it may give some impetus to the project. It’s a bit more extreme, but you could also write to owners yourself and ask them to contact the committee.

If you have a body corporate manager, you should contact them and see what they think is the best approach for your building. They should be able to guide you on the steps you can take and perhaps give you a link to a suitable contractor who can provide a quote.

If you can proceed the matter to a general meeting then owners will have the opportunity to vote on the proposal. If there are no funds, a special levy may be required.

If people vote no to the proposals then you could look at seeking an order against the body corporate for failing to meet its obligations. What would be the chances of success here? It would likely depend on the quality of your submission. It may also be an unpopular step with other owners. Still you have the right to protect your home and investment and when purchasing into a body corporate, all owners are signing up to adhere to the legislation. If that is not happening you may need to push for the outcome you seek.

Chris Irons, Strata Solve:

Will has very clearly highlighted the challenges you face here and they are challenges I think quite a few lot owners face. And you can understand it up to a point. Maintenance costs money, sometimes an awful lot of it, which owners have to fork out for.

The thing is, it’s not optional. One of the many points of difference between owning a lot in a community titles scheme and owning a free standing house is that in a house, you can choose to not maintain (or not be insured, as well as many other things), whereas in strata, you do not have a choice to not do those things. It matters not if the body corporate doesn’t have the funds, thinks it too costly or would prefer to defer. If the maintenance has to happen, the body corporate has to find the money for it, by hook or by crook (preferably not by crook).

Many cases confirm this. In this one, refer to paragraph 120, in the which the adjudicator states that in relation to the body corporate maintaining common property: “If funds do not exist, then the body corporate needs to explore options to raise them. This is not an excuse not to conduct necessary scheme maintenance and rectification work”.

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

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

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

Question: Should the body corporate be accountable for regular upgrades to common property?

Our 18 strata title units have a large shared common property that is becoming very shabby. Some old play equipment on the common property has not been upgraded for nearly 30 years etc. This has made selling some units very difficult.

Should the body corporate be accountable for regular upgrades, say every 10 years? They are very resistant at present, even though there’s a large amount in the sinking fund and I’m wondering if this could be used?

Answer: A body corporate must maintain the common property in a good and structurally sound condition.

A body corporate must maintain the common property in a good and structurally sound condition. If that includes the play equipment, then that has to be kept up to date just the same as the gutters or the driveway. From description, repair costs would likely come from the sinking fund but ongoing maintenance would be an admin expense.

If the body corporate fails to do this then there are a number of serious liability issues. What will happen, for example, if the child injures themselves on a piece of unsafe equipment? Will your insurance cover you when you are not taking reasonable action to make the site safe? As a first step this matter should be reported to the insurer as they need to be advised on any risks at the site.

Committee members need to consider that they have a duty of care to all occupants at the site. Critically this includes ensuring that the site is safe. Committee members can be held personally liable if their decision making is deemed negligent. Your insurance should have Office Bearer’s Liability to help cover such an event, but it is not a 100 percent guarantee.

The other option here is that the play equipment should be removed. This would require approval at a general meeting, but if the equipment doesn’t provide any utility to owners it is not an unreasonable proposal. Perhaps there is a better use for the space that could enhance the value of the property. Instead of being a source of discontent among owners this could be an opportunity to do something positive for the scheme.

For individual owners, it’s worth remembering that you are entitled to an input in the running of your scheme. Decisions are made by the majority not by the few and you have the right to make proposals for either general meetings or Committee meetings. This could include upgrading or removing the play equipment. If you are concerned about the matter, you should discuss how to make a proposal with your body corporate manager, then attend the meeting and have a discussion. Ask other owners to get involved. If property prices are being affected then not taking action seems like a false economy.

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

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

Question: We have mould coming from the central air conditioning unit vents. Who is responsible for maintenance of the building’s air conditioner?

Our building has central air conditioning that feeds into each unit through a bulkhead. There is mould in front of each of the air-conditioner vents blooming onto the ceiling. 

This mould seems to be coming out of the vents. Resident are unable to access the bulkhead. Is this a strata or a lot owner’s responsibility to resolve?

Answer: The by-laws for your site may well also ascribe responsibility for the upkeep of the system in one way or another so these should be checked.

Responsibility here could be affected by a number of different factors. Principally, the type of scheme and the by-laws for the site. For the type of scheme, it is most likely to be a building format plan, although you should check this to be sure. If that is the case, and as per the BCCM website, then the body corporate is responsible for:

While the lot owner is responsible for:

It depends on the setup, but it’s quite possible that a part of the system serves only your lot and would be the owner’s responsibility.

The by-laws for your site may well also ascribe responsibility for the upkeep of the system in one way or another so these should be checked. You can ask your body corporate manager for a copy of the by-laws and they can also assist with helping you identify if the issue is owners or body corporate responsibility.

Otherwise, mould issues are a common source of dispute as it is often very difficult to identify the cause or the resolution. You may need to engage a mould specialist to advise on this… If you think there is going to be a difference of opinion about the responsibility then it is best to make sure you have evidence to present in support of your position first. If you can make a reasonable case then you should get a reasonable dialogue. What you want to avoid is a situation where you say to the body corporate that a matter is their responsibility without having any evidence of this. In that scenario, the body corporate can simply reply that it isn’t and the subsequent impasse can be quite difficult to get out of.

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

This post appears in the March 2022 edition of The QLD Strata Magazine.

Question: In a Standard Format Plan, our block of garages have damage from consistent water ingress. There is no guttering on this building. Who is responsible for paying for these repairs?

We are under a Standard Format Plan and have three garages in a row within our car park. These garages are separate to our townhouses and numbered accordingly for each townhouse with shared walls between. 

Two of the garages have consistent water ingress damage from rain events and one has a door that needs replacing. There is no guttering on this building. 

Who is responsible for paying for these repairs?

Answer: You should contact your body corporate manager to help determine responsibility with reference to the plan and by-laws.

In a standard format plan, the garage is usually part of the lot and lot owner responsibility. However, it is possible the garages could be separate from the lot and located on common property, presumably with exclusive use rights. Then, the body corporate would be responsible for the exterior and the owner the interior.

As a first step you should contact your body corporate manager to help determine responsibility with reference to the plan and by-laws. After that you would need to work out the source of the problem and the requirements for rectification in order to allocate costs.

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

This post appears in the March 2022 edition of The QLD Strata Magazine.

Question: We have a car stacker in our QLD body corporate. Our Bylaws state that owners have exclusive use of the car stacker and are responsible for its maintenance. However, wouldn’t the car stacker be classed as utility infrastructure?

Our unit block has a mix of car stacker system parking and ‘normal’ parking. 12 of 15 units have car stackers. 2 motors drive the car stackers.

The motors are regarded as Body Corporate property. Our by-laws state that owners own the car stacker and have exclusive use. They also state that owners are responsible for any cost in relation to the operation, maintenance, repair or replacement of the car stacker or any of its component parts and costs are not recoverable from the body corporate.

The QLD Government website provides a definition of utility infrastructure. Would the car stacker parking system fall into this definition as ‘another system or service designed to benefit a lot or common property‘? How does this fit with the by-laws? Do by-laws take precedence? Where does liability rest if a personal injury accident is sustained on the car stacker?

Answer: The exclusive use by-law would transfer the maintenance obligation of the car stacker to the lot owner.

The car stackers would amount to utility infrastructure within the scope of the definitions of the BCCMA. Section 20 of the BCCMA then provides that utility infrastructure is common property.

The important distinction with grants of common property is that they cannot be given over utility infrastructure as section 177 of the BCCMA relevantly provides:

An exclusive use by-law must not give exclusive use to the rights and enjoyment of, or other special rights about, utility infrastructure that is common property or a body corporate asset.

Accordingly, the exclusive use allocation related to the car stacker would be over the common property airspace where the car stacker is located as opposed to the car stacker mechanism itself.

The exclusive use by-law would then transfer the maintenance obligation of the car stacker (but not its nature as common property) to the lot owner.

Liability for injury is, unfortunately, a very open ended question as it would depend on a number of factors including the cause of the injury, whether the stacker was being properly maintained, whether there was a manufacturing fault, etc.

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

This post appears in the February 2022 edition of The QLD Strata Magazine.

Question: If the t-piece of the water pipe in the en-suite needs repair, is the Body Corporate responsible for the rectification?

Answer: Once the pipe enters your lot, it becomes your responsibility.

Responsibility for all maintenance including infrastructure (cables, wires, pipes, etc.) is defined in the Body Corporate and Community Management Act.

There is also the question of whether your scheme is a Standard Format Plan SFP (previously known as a Group Title Plan GTP) or a Building Format Plan BFP (previously known as a Building Unit Plan BUP).

I have provided this response on the basis of your body corporate being a BFP which is your typical three story walk up or multi levy unit block. It could also be a town house development.

Section 20 of the BCCM Act provides that utility infrastructure is treated as common property; however, there are exceptions to this. It will not be treated as common property if:

To break this down to more simplistic terminology, if the water pipe or fitting is located within a boundary wall between your lot and another lot, the boundary of the lot being the centre point in the dividing wall, then this would be a body corporate responsibility. Once the pipe enters your lot, it becomes your responsibility.

If the pipe or fitting is not in a boundary structure and supplies water to your lot only, the responsibility is with the lot owner to repair. It may be contained in a wall that is within your lot, say your bathroom ensuite wall divides the kitchen from the ensuite. If this is the case, the pipe t-section is contained wholly within your lot and the responsibility of maintenance is with the lot owner.

Below is a basic plan of Utility Infrastructure in a BFP.

Utility infrastructure responsibilities

You have noted that the T-piece of the water pipe is in your ensuite. Without seeing a plan of your unit, I cannot determine who is responsible. However, the above diagram may be of help to you.

Karen Thompson Vision Strata E: contact@visionstrata.com.au P: 07 5630 6546

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

Question: Is it my responsibility to replace a downlight in my lot ceiling or is this a Body Corporate responsibility, i.e. common property?

I live in a relatively new high rise apartment complex in Queensland. The apartment is fitted with downlights installed in the ceiling. Is the replacement of a blown light my responsibility or is this ceiling light a Body Corporate responsibility, i.e. common property?

I ask this question because if individual owners start replacing these lights, the building will have no common light setting and will end up like a Christmas tree.

Answer: Owners are entitled to have lights at a brightness level that suits them.

Light bulbs within the unit are the lot owners responsibility. I have never heard of a consideration for having a common light setting and such a thing would likely not be possible. Owners are entitled to have lights at a brightness level that suits them.

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

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

Question: Who is responsible in QLD for cleaning gutters and roofs?

  1. Who is responsible in QLD for cleaning gutters and roofs? Is this the responsibility of the lot owner or the body corporate?

  2. If blocked gutters are the cause of internal ceiling or wall damage, is strata management responsible for this?

Answer: The responsible party depends on whether the lots in the scheme are created in a standard format plan or building format plan.

  1. The responsible party depends on whether the lots in the scheme are created in a standard format plan or building format plan. If the lots are created in a standard format plan – the responsibility will ordinarily lie with the lot owner. If the lots are created in a building format plan – the responsibility will ordinarily lie with the body corporate (unless the gutter only services one lot and forms part of a device).

  2. Strata management won’t be responsible but the body corporate will be if it can be proven that:
    1. The body corporate had a maintenance obligation and failed to discharge that duty; and

    2. The cause of the damage was directly attributable to the maintenance failure.

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

This post appears in Strata News #500.

Question: A pool of water forms at our door when it rains. The Body Corporate is aware of the situation, but states they will not fix the issue. What is their responsibility to minimise the risk of injury?

When it rains, water pools on the floor on our level and runs towards a dip just outside our unit door. 

To leave our unit in wet weather, we have to wade through a puddle of water. The Building Manager mentioned that a similar issue occurred on another floor and was resolved by installing a drain in the dip and a pipe.

My husband later took a fall, slipping and landing heavily on his back, due to the wet area outside our door. We wrote to the Body Corporate requesting they fix the pooling. Their response: “RESOLVED that the strata manager inform the owner that it was decided not to attempt to install additional pipes and drains at the location on level 5; and that all owners should be aware that on windy rainy days the lift landings could have water on them.”  

We don’t agree with the Body Corporate decision and believe they have a duty of care. 

What should we do?

Answer: The body corporate does have a duty of care to do whatever is ‘reasonably practical’ to minimise the risk of injury

If a physical or structural issue on common property is presenting a safety hazard for residents and visitors such as a pool of water consistently forming in a regular path of travel, the body corporate does have a duty of care to do whatever is ‘reasonably practical’ to minimise the risk of injury. Common property remains the responsibility and the liability of the Body Corporate and as such they must ensure maintenance and mitigation of hazards.

A drainage solution would stop the pooling of water and also limit moss/ algae growing in a damp spot, also a common safety concern. In bodies corporate, most injuries that occur on common property result in the body corporate being a responsible party for compensation. Having been warned of the hazard and neglecting to act or minimise the safety risk, the courts would generally consider this to be negligible conduct. The common question asked then to the Strata manager and the committee is, “what did you do that was reasonably practical?”.

It would then be up to the lawyers to argue that ‘warning owners that rain makes the ground slippery’ is enough to justify ‘reasonably practical’.

Our strongest recommendations would be to engage a professional to determine a solution to the pooling water whether that be a drainage concept or an awning covering the location.

To the person/s who have asked this question, our recommendation would be to photograph the pooled water and the safety risk and continue to pressure the committee and the manager to act under their duty of care over common property. Perhaps initially the severity of the hazard was not fully comprehended.

We would highly recommend:

Dakota Panetta Solutions in Engineering E: dakotap@solutionsinengineering.com P: 1300 136 036

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

Question: Who is responsible for the cost of a replacement antenna on a duplex within a complex. Is this the responsibility of the lot owners or the body corporate?

Answer: This really depends on the circumstances.

This is one that really depends on the circumstances involved. If the management of the central TV antenna system (MATV system) is included under the control of the body corporate, then the body corporate will be responsible for the replacement of the TV antenna attached to any MATV system. This is most common in apartment buildings.

For a large complex involving many houses or duplexes, the main free to air antenna signals might be distributed by an underground CATV network (either coaxial or fibre cabling). If there is such a CATV network in place, and the owner(s) of an individual duplex have decided to install a TV antenna due to the unreliability of the CATV network, then any maintenance of that separate TV antenna will ordinarily be the responsibility of the owner(s) of the individual lot.

However, if there is no communal CATV network in place, then maintenance of the free to air TV antenna as you have described will generally be considered to be maintenance of common property, as it services more than one lot.

For further information in relation to QLD, please consider the following advice in relation to QLD Government Utility infrastructure maintenance. Here, the Standard format plan outlines that “The body corporate is responsible for the: …any television antenna that services 2 or more lots”. Please note that there are some variances in the wording of the relevant legislation, depending on which state you are based in, and the body corporate may in some cases be able to decide differently if there is a special resolution.

Jason Burgess Install My Antenna E: jason@installmyantenna.com.au P: 0408 472 646

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

Question: Who is responsible for keeping the trees trimmed inside the fence line of the ground unit? The lot owner or the body corporate?

Our complex is fenced. We have 1 ground unit and the fence line also surrounds this unit but is separated from the other units by another small fence. Inside the fence line of the ground unit are trees and shrubs. Who is responsible for keeping the trees trimmed inside the fence line of the ground unit? Is it the lot owner or the body corporate?

Answer: There could be a number of factors determining responsibility

There could be a number of factors determining responsibility and it’s not possible to say definitely from the information provided. You would need to consider the building plan format, the CMS and any presiding by-laws. You may need to refer to: Neighbourhood Disputes Dividing Fences and Trees Act 2011

The best place to start is with your body corporate manager. They should be able to provide the required documents and help determine responsibility on that basis.

For further information the Queensland government has a good guide for how to resolve tree and fence issues: QLD Government – What to do if a neighbour’s tree is affecting you

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

This post appears in Strata News #488.

Question: Are all parts of a car park considered common areas? The back wall of the carpark needs repairs and we are not sure who is responsible

Are all parts of a car park considered common areas?

We have 3 designated car parks in a large apartment building. The carparks share a common back wall that is leaking water. Who is responsible for this wall? I’ve asked the question as the water is along the whole wall not just where our car parks are.

Answer: Any maintenance issue that affects more than one lot is usually common property.

Any maintenance issue that affects more than one lot is usually common property. That would seem to apply to the car park wall here but for extra clarity you may need to check the plans and any exclusive use by-laws. Contact your body corporate manager and they should be able to provide you with a definitive reply.

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

This post appears in Strata News #486.

Question: All of our letterboxes are together on the common property. If a lock needs to be replaced on a letterbox after 5 years, who is responsible – the body corporate or the lot owner.

Answer: If the letterboxes are considered common property then it would be the body corporate’s responsibility to maintain the common property and repair the lock.

If the letterboxes are considered common property then it would be the body corporate’s responsibility to repair the lock. If the letterbox is not common property, then it would be the owner’s responsibility.

How can you tell? It’s not always straightforward, but if they are located in a bank on the common property then, unless there is a specific by-law stating otherwise, they are more than likely to be common property and the responsibility of the owners corporation.

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

This post appears in Strata News #480.

Question: Who is responsible for windows (glass problems, window movements etc).

Answer: It would depend on whether the building is a standard format plan or a building format plan.

It would depend on whether the building is a standard format plan or a building format plan.

In a building format plan any window that is part of the exterior of the building is common property. Any window which is internal, such as a glass door to balconies, is part of a lot.

In a standard format plan windows are part of the lot and lot owner responsibility.

After that, you may need to consider whether there are any exclusive use by-laws that may affect ownership and possibly the cause of why a window needed repair.

If you have a specific issue it is best to contact your body corporate manager to discuss. Send them some photos and they should be able to help from there.

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

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

Question: The waterproof membrane beneath tiles on an exclusive use rooftop deck has failed. Is the Body Corporate responsible for this even when that failure may be due to the neglect of the lot owner?

Our building has a concrete roof and exclusive use of a rooftop deck. There is a waterproof membrane underneath the floor tiles on these decks.

One apartment has water ingress issues because the membrane has failed, but the said unit has cracked tiles that the owner has never bothered to repair.

Contractors now say that the tiles need to be removed and the membrane replaced, then the area be re-tiled.

Is the BC responsible for all this work due to the neglect of the owner over several years?

Answer: As a starting point, the maintenance obligation in relation to the membrane is the body corporate’s and extends to replacing tiles.

This is a common type of dispute. As a starting point, the maintenance obligation in relation to the membrane is the body corporate’s and extends to replacing tiles. However, that position is displaced in circumstances where there is persuasive evidence that exists to show that the membrane’s deterioration was as a result of the tiles being in poor condition. Sometimes a good solution is to jointly engage an expert to apportion a percentage of responsibility of the tiles contributing to the membrane damage. The parties can agree in advance to bear that proportion of costs towards the repairs.

This post appears in Strata News #468.

Question: I live in a strata complex in QLD, under the accommodation module and would like to know who is responsible for cracking cement in my garage?

Answer: This may depend on what format your plan is in or if there are any conditions relevant to your building that define ownership of the garage such as the by-laws.

This may depend on what format your plan is in or if there are any conditions relevant to your building that define ownership of the garage such as the by-laws. It’s not possible to give a definitive answer from the information available. You may also need to look at the extent of the cracking – is the issue affecting one lot only or is it extending out across the complex.

On an initial basis I would recommend taking some photos of the cracking, noting how long it has been present and if it is getting worse and sending these to the committee/body corporate manager. They can then advise on responsibility and consider any impact from the issue.

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

This post appears in Strata News #462.

Question: We have a number of townhouses within our complex which are suffering ongoing issues with cracks internally to the building. Is the Body Corporate liable for repairs to the cracking inside the building?

We have a number of townhouses within our complex which are suffering ongoing issues with cracks internally to the building. These are caused by seasonal effects/moisture on the ground underneath the buildings which have a reactive clay soil base.

The question is whether or not the Body Corporate is liable for repairs to the cracking inside the building? The Body Corporate has taken the position that external skin and frame are our responsibility and repairs internal to the building are the owners responsibility.

Answer: As a general position – the body corporate would be responsible if it were a building format plan and the lot owner would be responsible if it is a standard format plan.

The answer to this question will depend on:

  1. Whether there is evidence to prove the cause of the damage; and

  2. Which type of survey plan the lots are created in.

As a general position – the body corporate would be responsible if it were a building format plan and the lot owner would be responsible if it is a standard format plan.

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

This post appears in Strata News #458.

Question: The Body Corporate wants to lay a waterproof membrane on a lot owner’s balcony. The owner has several large pots. Who pays for moving the pot plants during the maintenance work?

The Body Corporate wants to lay a waterproof membrane on an owner’s balcony to protect the garages beneath the balcony. There has never been a waterproof membrane applied before.

The owner has several structures and also large pot plants on the balcony.

Who pays for moving the pot plants etc on and off the balcony during the maintenance work? They are too heavy to carry and would require specialised equipment.  

Answer: There is no obligation on the body corporate to install a membrane if there was not one installed previously.

There is no obligation on the body corporate to install a membrane if there was not one installed previously (unless the installation is required as part of a separate maintenance obligation, for example, to ensure the garage walls are kept structurally sound).

In either case:

  1. If there is no obligation to install the membrane – this would amount to an improvement (presumably to common property) that impacts on an owner’s lot, and would require the owner’s consent. The owner is not obliged to provide their consent and would unlikely do so if the body corporate were putting a particular cost to that owner. Accordingly, the cost of moving the items should fall on the body corporate.

  2. If there is an obligation to install the membrane as part of another maintenance obligation – the moving of the items would be part of performing that existing maintenance obligation and also fall to the body corporate.

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

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

Question: Are smoke alarms inside apartment buildings the responsibility of the owner or body corporate?

Answer: The maintenance, installation and repairs of Smoke alarms are the responsibility of the unit owner – if the unit is tenanted the monthly testing of the some alarm is with the unit occupier.

Stefan Bauer Fire Matters E: sbauer@firematters.com.au P: 07 3071 9088

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

Question: Certain important areas of general maintenance are not covered within our Management Agreement. Can this regular maintenance be included within our Bylaws?

I write from a 27 lot Gold Coast complex. Are there limitations as to what can be included within By-laws, as certain important areas are not covered within our Management Agreement? This includes general maintenance such as regular pest control, regular cleaning of our three indoor common areas, carpeted stairwells plus stairwell walls/windows/fire doors; window washing of difficult-to-reach windows from outdoors. The windows were finally cleaned about two years ago and it was the first time in over 20 years!

Answer: The maintenance issues you are discussing would not ordinarily be covered in the by-laws.

By-laws have to conform with the body corporate act and be voted on by owners to be approved.

The issues you seem to be discussing would not ordinarily be covered in the by-laws. They seem like scope of work issues to establish with your building manager/relevant contractors.

The extent of items like cleaning and pest control can vary from building to building and will mostly be decided by the committee and within your annual budget. If you want to see these items conducted more regularly you should raise the item with the Committee or join the Committee to influence the decision. There are always cost factors to consider but generally, well-maintained buildings have regular schedules in place for maintenance of items like this.

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

This post appears in Strata News #438.

Question: Who is responsible for the painting the exterior of our villas? Is it the Body Corporate or the lot owners?

We have 165 Villas which are all ground floor duplexes. We are Building Format, Standard Module.

The exterior of the Villas is due to be painted, including Eaves, guttering & downpipes.

Who is responsible for the painting? Is it the Body Corporate or the lot owners. Does this include the eaves, fascia, gutters? Also the window are corroding and need replacing.

I have been told that, as we are Building Format, it is the Body Corporate’s responsibility to maintain the exterior of the duplexes.

Answer: Yes, generally speaking.

Yes, generally speaking, in a building format plan the body corporate would be responsible for maintaining common property, including the exterior of the building.

Here is an adjudicator’s order which talks about how fascia might be regarded in at least that circumstance.

Every situation is different and you’d need to carefully consider the adjudicator’s logic here, and in other orders on the topic, to get a feel for how things would be considered in your particular case.

Think of it this way: there are over 50,000 schemes in Qld. Each one of those schemes is different from the other. It’s the job of committees and owners to discuss, consider and hopefully, resolve as to how things will be treated when it is not abundantly clear. If that can’t be done, then it’s the role of the adjudicator to determine.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #418.

Question: Who is responsible for the repair, replacement or installation of electrical safety switches in common areas? The unit owner or body corporate?

Answer: Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot.

Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot.

That said, section 159(3) of the Standard Module provides that despite this, and I quote:

the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure—

  1. relates only to supplying utility services to the owner’s lot; and

  2. is 1 of the following types—

So if there is utility infrastructure on common property and it relates only to the particular lot and it’s actually a utility service, then it would be the owner’s responsibility.

My suggestions are:

  1. keep the above in mind and be clear about where the connections are for your lot and

  2. have a look at past adjudicators’ orders to see how they’ve regarded safety switches.

What constitutes ‘utility services’ can be quite a vexed issue.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #406.

Question: I don’t use some facilities so why should I have to pay for maintaining them?

I am in QLD and live in a 7 lot acreage BC community.

Our lots are accessed by 2 electronic gates/intercoms and 2 common property bitumen roads. One 200 metre road services 2 lots exclusively. the other 700-metre road services the other 5 lots exclusively as well.

Do the owners of the 2 lots have to contribute to the costs of fixing the road servicing the other lots.

Answer: Your body corporate could look into exclusive use provisions although it’s going to be difficult.

Take a look at this page from my former Office regarding Standard format plan maintenance. Your scheme sounds like a standard format plan and for such a plan, the page says the following:

The body corporate is usually responsible for maintaining:

You mention the word ‘exclusively’ a couple of time so perhaps what you are angling at is whether there should be some exclusive use provisions. Your body corporate could look into that although it’s going to be difficult: if you went ahead and divvied things up as you suggest, some people are going to end up paying a lot more in levies and some a lot less. It’s (nearly?) impossible to think anyone would vote to pay more levies and you would need a resolution without dissent for it.

The argument that “well I don’t use such and such facilities on my body corporate so I shouldn’t have to pay for them” is one that gets advanced a lot. I’d always direct people to consider the name of the legislation, in response to that argument: its body corporate and community management (my emphasis added). You’re part of a community and you participate and contribute as a member of that community. You aren’t an island in a body corporate, even if you want to be. It’s a critical concept to always keep in mind.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #403.

Question: The electricity meter within my strata unit recently exploded. The Body Corporate says it has to be replaced at my cost. Shouldn’t the Body Corporate pay for my electricity meter replacement?

The electricity meter within my strata unit recently exploded. The Body Corporate says it has to be replaced at my cost.

Just recently, the Body Corporate replaced many faulty water meters in the development at their cost.

Do the same rules apply to electricity meters and water meters and should the Body Corporate pay for my electricity meter replacement?

The electrician has quoted about $1000 for the job.

Answer: Usually the replacement of electricity meters would be the Body Corporate’s or the electricity retailer’s cost.

Usually the replacement of electricity meters would be the Body Corporate’s or the electricity retailer’s cost, depending on who owned them – usually, the meters are located on common property.

It appears that the owner is saying that the meter is located within the boundary of their Lot. In that case, as the meter is only servicing one Lot and is located within the boundary of that Lot, I would agree that this would be an owner’s cost to replace.

Tammy Lynch Tower Body Corporate E: info@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #394.

Question: If an Owner requests an improvement to common property, who becomes responsible for the maintenance and upkeep of that improvement?

If an Owner requests an improvement to common property and that improvement is agreed either by Committee or at a General meeting, then who becomes responsible for the maintenance and upkeep of that improvement, the Owner who requested the improvement or the Body Corporate?

Answer: Refer to section 164 of the Regulations

Your answer is found in Section 164 of the Standard Module. It talks in terms of the body corporate authorising the improvement. The relevant subsections (3) and (4) are reproduced below:

  1. An authorisation may be given under this section on conditions the body corporate considers appropriate.

  2. An owner who is given an authority under this section—

    1. must comply with conditions of the authority; and

    2. must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Chris Irons Hynes Legal E: Chris.Irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #399.

Question: Several Lots have timber decks designated as “Common Property – Exclusive Use”. Who is responsible for maintaining the timber decking? Would it be up to each lot owner or the Body Corporate?

I have a question about maintenance of Common Property – Exclusive Use in our Building Format scheme on the Gold Coast.

Several Lots have timber decks designated as”Common Property – Exclusive Use” which are supported by timber posts. Who is responsible for maintaining the timber decking? Would it be up to each lot owner or the Body Corporate?

If it is the lot owners responsibility, does that extend to replacing any decking boards that may become unsound or only to applying suitable protective coatings periodically? Who would be responsible for maintaining the subfloor supporting timbers and their fixings?

Your help with any clarification would be most welcome.

Answer: This all depends on the by-law under which the grants of exclusive use were made.

This all depends on the by-law under which the grants of exclusive use were made.

In the absence of specific provisions to the contrary, the owners of the lots will generally be responsible for the maintenance of the exclusive use area and usually the improvements upon them. That can be changed by agreement and the key thing will be whether the installation of the improvements came with any conditions at the time they were built.

So the answer to the question (unfortunately) is that it all depends! There are no hard and fast rules.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #226.

Question: After the repair of a water main leak below my driveway, my drive has been left in a sorry state. At the AGM, the Body Corporate refused to fix the damage. What are my options?

I am in a block of five units. A mains water pipe spring a leak and they engaged a plumber to fix it. It was located under my driveway.

The finished repair of the driveway has not been done well. The body corporate took it to an AGM and decided not to repair my drive. I believe they are responsible for bringing my drive back to its condition before they dug it up but they are refusing to do so. What are my options please?

Answer: If a motion to repair your driveway went to the annual general meeting and was defeated, challenge that outcome through the Commissioner’s Office.

Based on your query it appears as though a motion went to the annual general meeting to repair your driveway and that motion was defeated.

Assuming that’s the case, your option now is to challenge that outcome through the Commissioner’s Office, potentially on the grounds that the decision was unreasonable. You may need to consider seeking legal advice at this juncture about that potential challenge and also to assess any further options you may have. For example, it’s unclear what motion went to the AGM and what material accompanied it or how it was framed, so legal advice may be able to look further at this point.

One point to keep in mind – was the initial pipe burst a body corporate issue or your issue, as lot owner? I know you say it was a mains water pipe and the assumption is that that is a body corporate issue, but sometimes it is not quite that obvious. Again, this is where legal advice may assist.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #430.

Question: We have a leak in the main water pipe which is located in an exclusive use area. The pipe services all units. Are repairs to a leaking pipe that services all units a Body Corporate expense?

We are a complex of 2 low set buildings each containing 2 duplexes in a Standard Format Plan in Queensland.

At the rear of each duplex is an area designated as exclusive use which works successfully.

The main water line servicing all four units from the footpath lies beneath and along the fence line with the neighbours in the exclusive use area. A leak has developed in the pipe connecting that water main pipe to the external and individual water meter in one of the units before distribution throughout that unit.

It is my understanding that although the main water pipe is located in all 4 exclusive use areas, because the pipe services all dwellings, any repair to a leak connecting that pipe to a dwelling would be at Body Corporate expense. Is this correct?

Answer: If it services all lots, the body corporate must fix the leak.

Utility infrastructure that services more than one lot is the maintenance responsibility of the body corporate.

It does not matter where the pipe is located. If the pipe services all 4 lots, the body corporate must repair the leaking pipe.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #304.

Question: In storms, water enters our apartment via the window frames and runs down the walls. Who is responsible to fix this and stop the windows from leaking?

We live on Level 5 in our building. We have basic residential sliding windows in 2 bedrooms which overlook common property air space ie. there’s no balcony.

When we have a storm which blows at 35 knots or more, rainwater fills the internal channel of the window frame and then spills over the internal window sill and onto the carpet.

Does the Body Corporate have an obligation to pay for new frames that will stop the rainwater coming in during a storm?

Answer: The body corporate is generally responsible for windows and their fittings in a boundary wall between a lot and the common property.

If you’re on level 5 then that suggests a building format plan of subdivision (you should double check that is the case against your own documents) and in that arrangement, the body corporate is generally – I stress, generally – responsible for windows and their fittings in a boundary wall between a lot and the common property. An owner under this arrangement is generally – again, I stress generally – responsible for windows leading onto a balcony that forms part of a lot, and is also generally responsible for the inside of the lot, including all fixtures and fittings inside the lot.

Determining who is responsible for maintenance is one of the most disputed about issues in a body corporate. Which means I’m not prepared to say one way or the other on your case, other than to point you to my comments above. I’d also suggest you have a look at past adjudicators’ orders to see where decisions have been made on this type of matter before. If there are decisions supporting your situation then you might like to approach the body corporate about replacing the windows and you’d probably do with a quote so that a decision can be made.

The body corporate of course may dispute your position and if between you, the matter can’t be resolved, you’d need to proceed to dispute resolution through the Commissioner’s Office.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #373.

Question: Our Exterior doors contain asbestos and are being replaced. We’ve been told we need to pay for the replacement of deadlocks and peepholes. Does this sound right?

Our exterior doors are being replaced as they contain asbestos. Most, if not all, unit doors have deadlocks and peepholes which will have to be replaced as, we’re told, they may not be removed to re-use.

We have been told by the committee that owners need to pay for the replacement of the deadlocks and peepholes. There are some people who question this and believe that the replacement costs of these items are the Body Corporate responsibility. Can you help with a correct procedure?

Answer: The doors should be replaced like for like.

It depends on how the new door was approved but if it were approved as maintenance (as it sounds to be the case) then generally they should be replaced like for like – which would include the deadlock and peephole (assuming there are no fire safety restrictions surrounding that).

Frank Higginson W: http://www.hyneslegal.com.au E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #301.

Question: Who is responsible for the exterior maintenance such as cleaning of the roof? Is it the Body Corporate or the lot owner?

The roofs on all Townhouses and villas in our complex are colourbond. They all need cleaning.

Is exterior cleaning owner’s or the body corporate’s responsibility? Some roofs are badly stained due to overhanging trees on community property that the body corporate has refused to have trimmed. Additionally, the concrete fire barriers between dwellings that extend above roof height also need cleaning.

Who is responsible for the exterior cleaning of the building?

Answer: This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show.

This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show. The body corporate manager should be able to confirm this.

If it is building format plan (BFP) – it will be the body corporate’s responsibility, and if it is a standard format plan (SFP) it will be the owner’s responsibility.

The threshold question though is whether the cleaning is required to ensure that they are in good condition. If they are in good condition notwithstanding they are not clean, there is no obligation to clean them.

Frank Higginson W: http://www.hyneslegal.com.au E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #234.

Question: We were recently hit by a hail storm which caused damage to our apartment. Who would be responsible for exterior maintenance such as replacing and repairing our damaged fly screens?

Recently in Queensland, we were hit with a hail storm which damaged our fly screens on the southern side of our unit. As the window are the responsibility of the body corporate, wouldn’t fly screens be considered exterior maintenance and treated the same?

Who would be responsible for replacing and repairing our damaged fly screens?

Answer: If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate.

The body corporate in a building format plan is responsible for windows and associated fittings situated in a boundary wall. That would include fly screens (as an associated fitting).

If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate. However, if the screens were installed by the owner, that is an improvement that they would be responsible for.

Frank Higginson W: http://www.hyneslegal.com.au E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #231.

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