Question: Many owners in our complex have installed motorised openers to their common property garage doors. The committee has ruled that, following an installation, the maintenance of the garage door becomes the responsibility of the owner. Can the committee do this when these installations should have no detrimental effect on the door or its operation?
Answer: The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor.
Where garage doors, between a lot and the common property, are and always were, motorised, then the lifting motor is part of the door and the Body Corporate is liable to maintain it; see for example The Crescent [2008] QBCCMCmr 56 (19 February 2008). That is because of the Body Corporate’s obligation to maintain the garage doors and the associated fittings under section 180(2)(a)(ii) of the Standard Module; i.e. ‘The Body Corporate must… maintain in good condition… doors, windows and associated fittings situated in a boundary wall separating a lot from common property’.
Where the same door was originally manual opening only, and has a motor added to it by an occupier for their benefit, then the Body Corporate is excused from maintaining the motor and associated fittings under s180(3).
The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor. Nothing in s180(3) supports that outcome. The only thing the Body Corporate is excused from maintaining is the fixture or fitting installed by the occupier; i.e. the motor and associated fittings. That however, is not the end of the storey. If any part of the upgrade by the occupier is made to or on the common property, then Body Corporate approval would be required under section 187 of the Standard Module. That approval can include a condition that the improvement be maintained by the lot owner. Indeed the lot owner must maintain the improvement unless the body corporate specifically excuses the lot owner from doing so; per section 187(4)(b).
The rub is whether the Body Corporate, when giving that approval, can purport to impose a condition on installation of the motor, that the lot owner thenceforth becomes liable to maintain the whole garage door. On balance, that is probably not a reasonable condition unless there was some reliable data to suggest that the addition of the motor would cause damage to the door. Which, of course, begs the question, why would a Body Corporate allow the installation at all if that was going to be the result?
The problem for the Body Corporate is that, like anyone else, it cannot ‘waive, or limit the exercise of, rights under’ the BCCM Act, per section 312. Imposing a condition that the occupier maintain the whole door, limits the occupiers right to require the Body Corporate to maintain the door under section 180. There is also support for such a condition being contrary to the scheme of the Act, back in section 180(5) of the Standard Module. Under that section the Body Corporate can recover the cost of fixing the garage door from the person who’s actions cause or contribute to the door being damaged. In summary then, if the entire automation upgrade is inside the lot, then the Body Corporate simply does not have a chance to impose its maintenance condition. If part of the upgrade is on common property, then the maintenance condition could be imposed, but there is every chance that it would be void. The Body Corporate does however get the last laugh – if the upgrade causes damage to the garage door, then while the Body Corporate has to fix the door, it can then recover the cost from the person who caused the damage; whether the occupier who installed the motor, or the occupier who used it to cause the damage, or either or both.
This post appears in the September 2022 edition of The QLD Strata Magazine.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
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