Question: An owner is not maintaining their exclusive use area. Can the body corporate send contractors and invoice the owner?
We live in a rural community titles scheme, and each lot has an exclusive use area assigned to it. Our by-laws require owners to maintain any exclusive use area attached to their lot. Another by-law requires lots to be mowed to one height if there is a building on the lot, and to another height if there isn’t.
One owner has let the grass on their exclusive use area grow up to one metre high, when it should be no more than 150mm. They have also planted trees over sewerage infrastructure on the exclusive use area without approval.
The body corporate has written to the owner asking them to comply with the by-laws, but they haven’t. Can the body corporate send its own contractors onto the exclusive use area to clean it up and invoice the owner?
Answer: If an owner does not maintain their lot in good condition, the body corporate may carry out the work and recover the reasonable cost from the owner as a debt.
Maintenance Obligations
Maintenance obligations with respect to a lot are set out in the relevant Regulation Module. Section 211(3) of the Body Corporate and Community Management (Standard Module) Regulation 2020 (Standard Module) provides that an owner of a lot included in the scheme must maintain their lot in good condition. A by-law requiring lots to be mowed to a specific height based on whether a building is situated on the lot is likely unenforceable to the extent it is inconsistent with the standard set out in the legislation. If the standard were set out in the architectural code rather than the by-laws, it would have been specifically enforceable.
To the extent that a lot owner’s grass has grown up to one metre in height, we assume that the grass at this length would not be in good condition. Accordingly, the body corporate would have a way to enforce that the lot owner maintain their lot in good condition, which would require trimming the grass to a length that would return the lot to good condition. The adjudicator in Kirribilli Heights [2021] QBCCMCmr 512 considered a similar issue whereby a lot was overgrown, and provided as follows:
“I am satisfied from the material submitted, including the photographs and footage provided by the body corporate and the submitters, that Lot 444 or at least parts of the lot, is in poor condition. To the extent that the lot comprises bushland, it is apparent that the lot includes areas that are badly overgrown, full of weeds, with no indication of maintenance.”
If the lot owner fails to comply with their maintenance obligations, there is a mechanism under section 212 of the Standard Module which provides that if an owner does not comply with their maintenance obligations, the body corporate may carry out the work and may recover the reasonable cost of carrying out the work from the owner of the lot as a debt. Alternatively, an order can be sought compelling the owner to carry out the necessary works to place the lot in good condition.
Exclusive Use
Improvements to an exclusive use area or a lot will be regulated under the scheme’s by-laws and regulation module. If the scheme’s by-laws require a lot owner to seek approval for undertaking works to their lot, and the owner fails to do so, the body corporate may be entitled to issue a by-law contravention notice to the owner. The by-law contravention notice would seek to enforce the by-laws against the lot owner, and in doing so, the body corporate may require the lot owner to remove the trees. The regulation module will otherwise require approval to be provided, and depending on the cost of the improvement, a general meeting may be required.
If the owner fails to comply with the by-law contravention notice, the next step would be to lodge a dispute resolution application with the Office of the Commissioner for Body Corporate and Community Management (OCBCCM) for adjudication.
This post appears in Strata News #812.
Liz Blazely Mahoneys E: blazely@mahoneys.com.au
