Question: An owner is unhappy with how the BC has handled their overflowing gutters. Has the BC fulfilled its legal obligations to maintain and repair common property?
A lot owner in a 2-story townhouse complex under a building format plan in Brisbane has long complained about overflowing gutters during heavy rain.
The body corporate (BC) has twice upgraded to larger gutters, installed gutter guards, removed nearby trees, added an extra downpipe, and extended the stormwater drain to lead water away from this lot. The guttering and retrofits comply with all relevant standards. We clean the gutters annually.
Despite the BC’s efforts, the owner is still unhappy, citing water splashing over the gutters and toward the front door during heavy rain. A plumber has quoted to replace the gutters and downpipes for both lots with the largest size available.
Has the BC done all it can to resolve the owner’s complaints?
Answer: The question is often whether the body corporate has made a reasonable decision.
As rainfall becomes heavier, an increasing amount of gutters are unable to cope with the downpours. Do they all need to be upgraded?
Body corporates are required to maintain the common property in good condition, which it sounds like you are doing, but they are not necessarily obliged to improve it. If the overflow causes a safety hazard, that may be a reason to do so, but you don’t indicate that is the case.
We can’t definitively answer whether the body corporate has done what it can to resolve the complaints. In these situations, the question is often whether the body corporate has made a reasonable decision.
The standards of reasonability were recently highlighted in an adjudicator’s order: Baden Central [2024] QBCCMCmr 270 (24 July 2024). Here, the adjudicator asserted:
There is a general requirement that a body corporate and its committee act reasonably when making a decision. There is considerable case law on reasonable decision-making in bodies corporate. The test for whether a decision is reasonable is objective. It is a question of fact, having regard to all the circumstances. Reasonable decision-making “…involves an evaluation of the known facts, circumstances and considerations that tend to have a rational bearing on the issue…” and “…requires that all relevant matters are taken into consideration and irrelevant ones are left out”. The person challenging a decision bears the onus of establishing that the body corporate failed to act reasonably.
To help guide you, the committee might ask itself whether it has met these standards in determining whether the works are required. Try to take all personal elements out of the decision and just think about the work and whether it is required or not. Will making the changes resolve the issue? Is it fairer for all lots to have the same work done? Would the owner still want to proceed if the BC had to raise a special levy to carry out the work on every lot?
Depending on your view, you might advise the owner that the common property is maintained in good condition and the BC will not upgrade their gutter. If the owner is unhappy, they can dispute the decision via the commissioner’s office. Committees, owners and body corporates shouldn’t be afraid of seeking or steering resolution through this pathway – it’s what the commissioner’s office is for. If the committee makes a good faith decision, an owner disputes it, and an adjudicator agrees with the owner, that’s OK. It’s not a black mark against the body corporate, just a direction as to what to do next.
William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924