26th October 2020
By Mahoney's Lawyers & Advisors
Maintenance disputes are the single biggest issue that results in adjudication applications and information inquiries to the Commissioner’s Office.
The general position is that:
- owners are responsible for maintaining their own lots; and
- the body corporate is responsible for maintaining the common property.
However, there are a number of exceptions to the general position and it is these exceptions that lead to disputes.
Plans of subdivision
Lots in a community title scheme are ordinarily created under a ‘standard format plan’ or ‘building format plan’ of subdivision. This is determined by the type of survey plan lodged at the Titles Office for the lot when it was created.
In most (but not all) cases, apartments in a high rise will be created under a building format plan and freestanding houses will be created under a standard format plan. Townhouses can fall into either category and will simply depend on what the plan says.
Standard Format Plan Schemes
If the lots are created in a standard format plan, there is little change to the general position. However, if the lots are created in a building format plan, the maintenance responsibility becomes a little more complicated.
Building Format Plan Schemes
The boundaries of lots and common property in a building format plan are determined by the physical boundaries – such as the floor, wall, or ceiling. As an example, two neighbouring lots in a building format plan will have a boundary in the midpoint of the wall.
In a building format plan, the body corporate becomes responsible for a number of items that would otherwise be the lot owner’s responsibility. These exceptions include:
- railings, parapets, and balustrades on the boundary of a lot and the common property;
- doors, windows, and associated fittings in a boundary wall of a lot and the common property;
- roofing membranes providing protection for lots or the common property; and
- foundation structures, roofing structures, and essential supporting framework.
These exceptions do not apply to standard format plans.
Exceptions for lot owners
Regardless of whether the scheme was created under a standard format plan or a building format plan, the lot owner will remain responsible for:
- any fixtures or fittings that were installed by the occupier of the lot;
- any improvements that were made by lot owners;
- exclusive use allocations (unless the by-law provides that the body corporate is responsible);
- utility infrastructure that exclusively services their lot; and
- shower trays.
Consequential and incidental damage
If something in the scheme has fallen into disrepair (for example, a tap fitting that the lot owner is responsible for leaks) and causes damage to another part of the scheme (for example, the lot underneath gets flooded) it does not mean that each lot owner is responsible for the repairs to their own lot.
The lot that did not have the tap in good condition would be responsible for the repair to their lot and the repairs to the lot underneath.
If in carrying out those repairs, further work needs to be carried out (for example, removing the ceiling to access utility infrastructure) the additional repair works (for example, to replace the ceiling) would also be part of the original maintenance responsibility of the lot owner with the tap.
Steps to follow
The following steps will assist in determining who is responsible for maintenance in a community title scheme:
- determine the cause of the damage or the item that is in disrepair;
- review the survey plan to determine whether the relevant lot is created in a building format plan or standard format plan;
- determine the location of the cause of the damage or the item; and
- confirm if any exceptions apply.