EXCLUSIVE USE AREAS – WHAT IS A SPECIFIC PROVISION AND WHERE DO THEY START AND STOP?

Acknowledging the article prepared by Grace Lawyers (found here: Exclusive Use Areas—Who Really Pays for Maintenance?), this article continues the series by looking more closely at what a specific provision is, and some of the common problem areas that arise.

We all know the Body Corporate’s statutory duty to maintain is a strict one. It is not enough to take “reasonable steps.” The Body Corporate must investigate and repair common property when it becomes aware that something is broken, defective, or not operating properly. This obligation can extend to construction defects, even if they were hidden at the time of the original build.

However, where lots have been granted rights over common property under an exclusive use by-law, the responsibility for maintenance can shift.

The Default Rule

Section 182 of the Accommodation Module says:

“(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.”

In short, unless the by-law says otherwise, the owner who benefits from the exclusive use area is the one who must maintain it and pay for its running costs. However, when it comes to building format plan (‘BFPs’) the body corporate will still be responsible for roofing membranes (within the EUA and providing protection) insofar as they are in good condition and foundation structures, roofing structures providing protection and essential supporting framework insofar as they are in a structurally sound condition.

This obligation will remain with the Body Corporate unless the EU by-law includes a specific provision. 

The question then becomes: what amounts to a specific provision?

The answer depends on the wording of the by-law and must be considered on a case-by-case basis. Decisions such as Body Corporate for Visage v Wilkinson & Ors [2019] QCATA 35 have found that wording like “the owner shall be responsible for the cleaning of…” is not enough to count as a specific provision.

On the other hand, in L’Auberge Noosa, the following wording was accepted as sufficient:

“…clean and tidy and pay for any maintenance and operating costs related to keeping the exclusive use area clean and tidy. In particular, any landscaping within an exclusive use area must be kept well watered, fertilised and tendered and to a standard equivalent to the landscaping and gardening within the Common Property. Subject to those obligations, the Body Corporate must carry out its duties in relation to the exclusive use area.”

These two examples highlight why confusion arises: different adjudicators can take different approaches, leaving committees and owners uncertain about where responsibility lies.

Where Do the Boundaries Fall?

Once the question of “specific provision” is clarified, the next step is to determine whether the item in dispute actually falls within the boundaries of the exclusive use area.

Plans usually include notes describing how boundaries should be determined — for example, “the boundary of the exclusive use area will be the external face of the building wall.”

But what about windows and doors that sit within or around those walls?

In Sailport [2007] QBCCMCmr 609, the Adjudicator decided that it would be unjust and impractical for responsibility for a sliding door to depend on whether it was a few centimetres inside or outside the formal boundary. Since the door existed solely for the benefit of the lot and its exclusive use area, the lot owner was found responsible for maintaining it.

This reasoning is consistent with other decisions: if the item exists only for the use and benefit of the exclusive use holder, then it is generally fair for that owner to take responsibility, regardless of exact boundary placement.

Practical Guidance for Committees

When faced with a maintenance dispute involving exclusive use areas, committees should carefully consider:

1. Nature of the work required – what exactly needs doing?
2. The exclusive use by-law – does it contain a specific provision about maintenance?

1. • If yes, follow it.
   • If no, apply the default rules (the benefiting owner maintains the area, however if a BFP the Body Corporate will likely still have obligations with respect to roofing membranes and certain structures).

3. The plan boundaries – does the item clearly sit within the exclusive use area? If not, does it still exist primarily for the benefit of that owner?

Final Word

Exclusive use areas are one of the most complex and contested aspects of strata living. Ambiguities in by-law wording and boundary definitions often fuel disputes. A careful reading of the by-law and the plan, combined with a clear understanding of the law, can help committees manage these issues before they escalate.

Article Contributed by Jessica Cannon, Partner at Chambers Russell Lawyers.