REPAIRS, MAINTENANCE, AND IMPROVEMENTS: WHO IS RESPONSIBLE FOR WHAT?

For bodies corporate established by the Body Corporate and Community Management Act 1997 (Qld), disputes about repairs, maintenance and improvements are very common. Knowing who is responsible can be confusing because for every rule there is often an exception. This article will broadly outline those rules and exceptions so that bodies corporate, committees and lot owners can answer for themselves: who is responsible for what? 

The general rule

All bodies corporate must have common property and lots. The survey plans for a body corporate will specify the whereabouts of common property and lots.

The general rule is that bodies corporate will be responsible for repairing and maintaining common property and lot owners will be responsible for repairing and maintaining their lot.

But as with most general rules, there are exceptions. This means that there are times when bodies corporate may be responsible for lots and lot owners may be responsible for common property.

When are bodies corporate responsible for lots?

Bodies corporate may be responsible for repairing and maintaining lots in certain circumstances. This most commonly arises if the body corporate is a building format plan of subdivision or a ‘BFP’.

A BFP defines land using the structural elements of a building, including, for example, floors, walls and ceilings. Most multi-story apartment buildings in Queensland are a BFP, where the boundaries of the lot are defined by the exterior walls of the apartment.

Where a body corporate is a BFP, the applicable regulation module imposes several repair and maintenance obligations, including:

1. railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property;
2. doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
3. roofing membranes that are not common property but that provide protection for lots or common property.

In other words, bodies corporate in a BFP may be responsible for repairing and maintaining parts of a lot that are not common property.

When are lot owners responsible for common property?

A lot owner may be responsible for repairing and maintaining common property. This usually applies to common property over which the lot owner has exclusive use.

For example, if a lot owner has exclusive use of a car park or a courtyard, the body corporate (through its by-laws) may impose specific repair and maintenance obligations on the lot owner. This applies to any improvements made to that same area. For example, if the lot owner adds a small storage cage to the front of their exclusive use of a car park, they will usually be responsible for repairing and maintaining it. 

Bodies corporate are not required to improve common property. However, when large scale repair and maintenance projects are being considered, the question of improvements often arise. For example, a routine repair of a swimming pool may prompt a committee to use these repairs as an opportunity to improve the pool by retiling and relandscaping it.

Bodies corporate are allowed to improve common property, but there are specific improvement authorisations that need to be satisfied. In most case, bodies corporate will require at least 2 quotes and (for larger improvement projects) approval at a general meeting. Very rarely will an adjudicator need to approve the improvements. The table below provides a basic snapshot of the authorisation required for improvements.

Once the improvement project is complete, the body corporate will be responsible for repairing and maintaining the improvements, the same as it would for common property generally. 

Final comments

The general rule and exceptions outlined in this article should help most bodies corporate, committees and lot owners answer for themselves: who is responsible for what? However, finding the correct answer for a specific scenario often depends on various factors.

Fortunately, we have assisted bodies corporate, committees and lot owners deal with almost every scenario imaginable. For example, what happens if a lot owner makes improvements to their lot that damage common property or neighbouring lots? What are bodies corporate required to repair and maintain if lots are part of a standard format plan of subdivision or a volumetric plan of subdivision? What if an improvement causes an encroachment from the common property into a lot or vice-versa? These scenarios and many others will require advice from an expert.

If you require further advice and assistance in relation to repairs, maintenance and improvements please contact Mario Esera at HWLE Lawyers.

Article Contributed by Mario Esera, Partner, HWLE Lawyers.