QLD: Q&A Responsibility for maintenance of common property

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Qld lot owners would like to know who is responsible for the maintenance of common property, such as cleaning the roof and repairing fly screens.

Table of Contents:

• QUESTION: The waterproof membrane beneath tiles on an exclusive use rooftop deck has failed. Is the Body Corporate responsible for this even when that failure may be due to the neglect of the lot owner?
• QUESTION: I live in a strata complex in QLD, under the accommodation module and would like to know who is responsible for cracking cement in my garage?
• QUESTION: We have a number of townhouses within our complex which are suffering ongoing issues with cracks internally to the building. Is the Body Corporate liable for repairs to the cracking inside the building?
• QUESTION: The Body Corporate wants to lay a waterproof membrane on a lot owner’s balcony. The owner has several large pots. Who pays for moving the pot plants during the maintenance work?
• QUESTION: Are smoke alarms inside apartment buildings the responsibility of the owner or body corporate?
• QUESTION: Certain important areas of general maintenance are not covered within our Management Agreement. Can this regular maintenance be included within our Bylaws?
• QUESTION: Who is responsible for the painting the exterior of our villas? Is it the Body Corporate or the lot owners?
• QUESTION: Who is responsible for the repair, replacement or installation of electrical safety switches in common areas? The unit owner or body corporate?
• QUESTION: I don’t use some facilities so why should I have to pay for maintaining them?
• QUESTION: The electricity meter within my strata unit recently exploded. The Body Corporate says it has to be replaced at my cost. Shouldn’t the Body Corporate pay for my electricity meter replacement?
• QUESTION: If an Owner requests an improvement to common property, who becomes responsible for the maintenance and upkeep of that improvement?
• QUESTION: Several Lots have timber decks designated as “Common Property – Exclusive Use”. Who is responsible for maintaining the timber decking? Would it be up to each lot owner or the Body Corporate?
• QUESTION: After the repair of a water main leak below my driveway, my drive has been left in a sorry state. At the AGM, the Body Corporate refused to fix the damage. What are my options?
• QUESTION: We have a leak in the main water pipe which is located in an exclusive use area. The pipe services all units. Are repairs to a leaking pipe that services all units a Body Corporate expense?
• QUESTION: In storms, water enters our apartment via the window frames and runs down the walls. Who is responsible to fix this and stop the windows from leaking?
• QUESTION: Our Exterior doors contain asbestos and are being replaced. We’ve been told we need to pay for the replacement of deadlocks and peepholes. Does this sound right?
• QUESTION: Who is responsible for the exterior maintenance such as cleaning of the roof? Is it the Body Corporate or the lot owner?
• QUESTION: We were recently hit by a hail storm which caused damage to our apartment. Who would be responsible for exterior maintenance such as replacing and repairing our damaged fly screens?

Question: The waterproof membrane beneath tiles on an exclusive use rooftop deck has failed. Is the Body Corporate responsible for this even when that failure may be due to the neglect of the lot owner?

Our building has a concrete roof and exclusive use of a rooftop deck. There is a waterproof membrane underneath the floor tiles on these decks.

One apartment has water ingress issues because the membrane has failed, but the said unit has cracked tiles that the owner has never bothered to repair.

Contractors now say that the tiles need to be removed and the membrane replaced, then the area be re-tiled.

Is the BC responsible for all this work due to the neglect of the owner over several years?

Answer: As a starting point, the maintenance obligation in relation to the membrane is the body corporate’s and extends to replacing tiles.

This is a common type of dispute. As a starting point, the maintenance obligation in relation to the membrane is the body corporate’s and extends to replacing tiles. However, that position is displaced in circumstances where there is persuasive evidence which exists to show that the membrane’s deterioration was as a result of the tiles being in poor condition. Sometimes a good solution is to jointly engage an expert to apportion a percentage of responsibility of the tiles contributing to the membrane damage. The parties can agree in advance to bear that proportion of costs towards the repairs.

This post appears in Strata News #468.

Question: I live in a strata complex in QLD, under the accommodation module and would like to know who is responsible for cracking cement in my garage?

Answer: This may depend on what format your plan is in or if there are any conditions relevant to your building that define ownership of the garage such as the by-laws.

This may depend on what format your plan is in or if there are any conditions relevant to your building that define ownership of the garage such as the by-laws. It’s not possible to give a definitive answer from the information available. You may also need to look at the extent of the cracking – is the issue affecting one lot only or is it extending out across the complex.

On an initial basis I would recommend taking some photos of the cracking, noting how long it has been present and if it is getting worse and sending these to the committee/body corporate manager. They can then advise on responsibility and consider any impact from the issue.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #462.

Question: We have a number of townhouses within our complex which are suffering ongoing issues with cracks internally to the building. Is the Body Corporate liable for repairs to the cracking inside the building?

We have a number of townhouses within our complex which are suffering ongoing issues with cracks internally to the building. These are caused by seasonal effects/moisture on the ground underneath the buildings which have a reactive clay soil base.

The question is whether or not the Body Corporate is liable for repairs to the cracking inside the building? The Body Corporate has taken the position that external skin and frame are our responsibility and repairs internal to the building are the owners responsibility.

Answer: As a general position – the body corporate would be responsible if it were a building format plan and the lot owner would be responsible if it is a standard format plan.

The answer to this question will depend on:

1. Whether there is evidence to prove the cause of the damage; and
2. Which type of survey plan the lots are created in.

As a general position – the body corporate would be responsible if it were a building format plan and the lot owner would be responsible if it is a standard format plan.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #458.

Question: The Body Corporate wants to lay a waterproof membrane on a lot owner’s balcony. The owner has several large pots. Who pays for moving the pot plants during the maintenance work?

The Body Corporate wants to lay a waterproof membrane on an owner’s balcony to protect the garages beneath the balcony. There has never been a waterproof membrane applied before.

The owner has several structures and also large pot plants on the balcony.

Who pays for moving the pot plants etc on and off the balcony during the maintenance work? They are too heavy to carry and would require specialised equipment.  

Answer: There is no obligation on the body corporate to install a membrane if there was not one installed previously.

There is no obligation on the body corporate to install a membrane if there was not one installed previously (unless the installation is required as part of a separate maintenance obligation, for example, to ensure the garage walls are kept structurally sound).

In either case:

1. If there is no obligation to install the membrane – this would amount to an improvement (presumably to common property) that impacts on an owner’s lot, and would require the owner’s consent. The owner is not obliged to provide their consent and would unlikely do so if the body corporate were putting a particular cost to that owner. Accordingly, the cost of moving the items should fall on the body corporate.
2. If there is an obligation to install the membrane as part of another maintenance obligation – the moving of the items would be part of performing that existing maintenance obligation and also fall to the body corporate.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Are smoke alarms inside apartment buildings the responsibility of the owner or body corporate?

Answer: The maintenance, installation and repairs of Smoke alarms are the responsibility of the unit owner – if the unit is tenanted the monthly testing of the some alarm is with the unit occupier.

Stefan Bauer
Fire Matters
E: [email protected]
P: 07 3901 8203

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Certain important areas of general maintenance are not covered within our Management Agreement. Can this regular maintenance be included within our Bylaws?

I write from a 27 lot Gold Coast complex. Are there limitations as to what can be included within By-laws, as certain important areas are not covered within our Management Agreement? This includes general maintenance such as regular pest control, regular cleaning of our three indoor common areas, carpeted stairwells plus stairwell walls/windows/fire doors; window washing of difficult-to-reach windows from outdoors. The windows were finally cleaned about two years ago and it was the first time in over 20 years!

Answer: The maintenance issues you are discussing would not ordinarily be covered in the by-laws.

By-laws have to conform with the body corporate act and be voted on by owners to be approved.

The issues you seem to be discussing would not ordinarily be covered in the by-laws. They seem like scope of work issues to establish with your building manager/relevant contractors.

The extent of items like cleaning and pest control can vary from building to building and will mostly be decided by the committee and within your annual budget. If you want to see these items conducted more regularly you should raise the item with the Committee or join the Committee to influence the decision. There are always cost factors to consider but generally, well-maintained buildings have regular schedules in place for maintenance of items like this.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #438.

Question: Who is responsible for the painting the exterior of our villas? Is it the Body Corporate or the lot owners?

We have 165 Villas which are all ground floor duplexes. We are Building Format, Standard Module.

The exterior of the Villas is due to be painted, including Eaves, guttering & downpipes.

Who is responsible for the painting? Is it the Body Corporate or the lot owners. Does this include the eaves, fascia, gutters? Also the window are corroding and need replacing.

I have been told that, as we are Building Format, it is the Body Corporate’s responsibility to maintain the exterior of the duplexes.

Answer: Yes, generally speaking.

Yes, generally speaking, in a building format plan the body corporate would be responsible for maintaining common property, including the exterior of the building.

Here is an adjudicator’s order which talks about how fascia might be regarded in at least that circumstance.

Every situation is different and you’d need to carefully consider the adjudicator’s logic here, and in other orders on the topic, to get a feel for how things would be considered in your particular case.

Think of it this way: there are over 50,000 schemes in Qld. Each one of those schemes is different from the other. It’s the job of committees and owners to discuss, consider and hopefully, resolve as to how things will be treated when it is not abundantly clear. If that can’t be done, then it’s the role of the adjudicator to determine.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #418.

Question: Who is responsible for the repair, replacement or installation of electrical safety switches in common areas? The unit owner or body corporate?

Answer: Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot.

Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot.

That said, section 159(3) of the Standard Module provides that despite this, and I quote:

the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure—

1. relates only to supplying utility services to the owner’s lot; and
2. is 1 of the following types—
• hot-water systems
• washing machines
• clothes dryers
• another device providing a utility service to a lot;

So if there is utility infrastructure on common property and it relates only to the particular lot and it’s actually a utility service, then it would be the owner’s responsibility.

My suggestions are:

1. keep the above in mind and be clear about where the connections are for your lot and
2. have a look at past adjudicators’ orders to see how they’ve regarded safety switches.

What constitutes ‘utility services’ can be quite a vexed issue.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #406.

Question: I don’t use some facilities so why should I have to pay for maintaining them?

I am in QLD and live in a 7 lot acreage BC community.

Our lots are accessed by 2 electronic gates/intercoms and 2 common property bitumen roads. One 200 metre road services 2 lots exclusively. the other 700-metre road services the other 5 lots exclusively as well.

Do the owners of the 2 lots have to contribute to the costs of fixing the road servicing the other lots.

Answer: Your body corporate could look into exclusive use provisions although it’s going to be difficult.

Take a look at this page from my former Office regarding Standard format plan maintenance. Your scheme sounds like a standard format plan and for such a plan, the page says the following:

The body corporate is usually responsible for maintaining:

• roads, gardens and lawns on common property
• facilities on common property (like swimming pools and barbeques)
• utility infrastructure (link utility infrastructure – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance/utility) (like equipment, pipes and wiring) that is on common property, or in a boundary structure, or services more than 1 lot.

You mention the word ‘exclusively’ a couple of time so perhaps what you are angling at is whether there should be some exclusive use provisions. Your body corporate could look into that although it’s going to be difficult: if you went ahead and divvied things up as you suggest, some people are going to end up paying a lot more in levies and some a lot less. It’s (nearly?) impossible to think anyone would vote to pay more levies and you would need a resolution without dissent for it.

The argument that “well I don’t use such and such facilities on my body corporate so I shouldn’t have to pay for them” is one that gets advanced a lot. I’d always direct people to consider the name of the legislation, in response to that argument: its body corporate and community management (my emphasis added). You’re part of a community and you participate and contribute as a member of that community. You aren’t an island in a body corporate, even if you want to be. It’s a critical concept to always keep in mind.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #403.

Question: The electricity meter within my strata unit recently exploded. The Body Corporate says it has to be replaced at my cost. Shouldn’t the Body Corporate pay for my electricity meter replacement?

The electricity meter within my strata unit recently exploded. The Body Corporate says it has to be replaced at my cost.

Just recently, the Body Corporate replaced many faulty water meters in the development at their cost.

Do the same rules apply to electricity meters and water meters and should the Body Corporate pay for my electricity meter replacement?

The electrician has quoted about $1000 for the job.

Answer: Usually the replacement of electricity meters would be the Body Corporate’s or the electricity retailer’s cost.

Usually the replacement of electricity meters would be the Body Corporate’s or the electricity retailer’s cost, depending on who owned them – usually, the meters are located on common property.

It appears that the owner is saying that the meter is located within the boundary of their Lot. In that case, as the meter is only servicing one Lot and is located within the boundary of that Lot, I would agree that this would be an owner’s cost to replace.

Tammy Lynch
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #394.

Question: If an Owner requests an improvement to common property, who becomes responsible for the maintenance and upkeep of that improvement?

If an Owner requests an improvement to common property and that improvement is agreed either by Committee or at a General meeting, then who becomes responsible for the maintenance and upkeep of that improvement, the Owner who requested the improvement or the Body Corporate?

Answer: Refer to section 164 of the Regulations

Your answer is found in Section 164 of the Standard Module. It talks in terms of the body corporate authorising the improvement. The relevant subsections (3) and (4) are reproduced below:

3. An authorisation may be given under this section on conditions the body corporate considers appropriate.
4. An owner who is given an authority under this section—
1. must comply with conditions of the authority; and
2. must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #399.

Question: Several Lots have timber decks designated as “Common Property – Exclusive Use”. Who is responsible for maintaining the timber decking? Would it be up to each lot owner or the Body Corporate?

I have a question about maintenance of Common Property – Exclusive Use in our Building Format scheme on the Gold Coast.

Several Lots have timber decks designated as”Common Property – Exclusive Use” which are supported by timber posts. Who is responsible for maintaining the timber decking? Would it be up to each lot owner or the Body Corporate?

If it is the lot owners responsibility, does that extend to replacing any decking boards that may become unsound or only to applying suitable protective coatings periodically? Who would be responsible for maintaining the subfloor supporting timbers and their fixings?

Your help with any clarification would be most welcome.

Answer: This all depends on the by-law under which the grants of exclusive use were made.

This all depends on the by-law under which the grants of exclusive use were made.

In the absence of specific provisions to the contrary, the owners of the lots will generally be responsible for the maintenance of the exclusive use area and usually the improvements upon them. That can be changed by agreement and the key thing will be whether the installation of the improvements came with any conditions at the time they were built.

So the answer to the question (unfortunately) is that it all depends! There are no hard and fast rules.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #226.

Question: After the repair of a water main leak below my driveway, my drive has been left in a sorry state. At the AGM, the Body Corporate refused to fix the damage. What are my options?

I am in a block of five units. A mains water pipe spring a leak and they engaged a plumber to fix it. It was located under my driveway.

The finished repair of the driveway has not been done well. The body corporate took it to an AGM and decided not to repair my drive. I believe they are responsible for bringing my drive back to its condition before they dug it up but they are refusing to do so. What are my options please?

Answer: If a motion to repair your driveway went to the annual general meeting and was defeated, challenge that outcome through the Commissioner’s Office.

Based on your query it appears as though a motion went to the annual general meeting to repair your driveway and that motion was defeated.

Assuming that’s the case, your option now is to challenge that outcome through the Commissioner’s Office, potentially on the grounds that the decision was unreasonable. You may need to consider seeking legal advice at this juncture about that potential challenge and also to assess any further options you may have. For example, it’s unclear what motion went to the AGM and what material accompanied it or how it was framed, so legal advice may be able to look further at this point.

One point to keep in mind – was the initial pipe burst a body corporate issue or your issue, as lot owner? I know you say it was a mains water pipe and the assumption is that that is a body corporate issue, but sometimes it is not quite that obvious. Again, this is where legal advice may assist.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #430.

Question: We have a leak in the main water pipe which is located in an exclusive use area. The pipe services all units. Are repairs to a leaking pipe that services all units a Body Corporate expense?

We are a complex of 2 low set buildings each containing 2 duplexes in a Standard Format Plan in Queensland.

At the rear of each duplex is an area designated as exclusive use which works successfully.

The main water line servicing all four units from the footpath lies beneath and along the fence line with the neighbours in the exclusive use area. A leak has developed in the pipe connecting that water main pipe to the external and individual water meter in one of the units before distribution throughout that unit.

It is my understanding that although the main water pipe is located in all 4 exclusive use areas, because the pipe services all dwellings, any repair to a leak connecting that pipe to a dwelling would be at Body Corporate expense. Is this correct?

Answer: If it services all lots, the body corporate must fix the leak.

Utility infrastructure that services more than one lot is the maintenance responsibility of the body corporate.

It does not matter where the pipe is located. If the pipe services all 4 lots, the body corporate must repair the leaking pipe.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #304.

Question: In storms, water enters our apartment via the window frames and runs down the walls. Who is responsible to fix this and stop the windows from leaking?

We live on Level 5 in our building. We have basic residential sliding windows in 2 bedrooms which overlook common property air space ie. there’s no balcony.

When we have a storm which blows at 35 knots or more, rainwater fills the internal channel of the window frame and then spills over the internal window sill and onto the carpet.

Does the Body Corporate have an obligation to pay for new frames that will stop the rainwater coming in during a storm?

Answer: The body corporate is generally responsible for windows and their fittings in a boundary wall between a lot and the common property.

If you’re on level 5 then that suggests a building format plan of subdivision (you should double check that is the case against your own documents) and in that arrangement, the body corporate is generally – I stress, generally – responsible for windows and their fittings in a boundary wall between a lot and the common property. An owner under this arrangement is generally – again, I stress generally – responsible for windows leading onto a balcony that forms part of a lot, and is also generally responsible for the inside of the lot, including all fixtures and fittings inside the lot.

Determining who is responsible for maintenance is one of the most disputed about issues in a body corporate. Which means I’m not prepared to say one way or the other on your case, other than to point you to my comments above. I’d also suggest you have a look at past adjudicators’ orders to see where decisions have been made on this type of matter before. If there are decisions supporting your situation then you might like to approach the body corporate about replacing the windows and you’d probably do with a quote so that a decision can be made.

The body corporate of course may dispute your position and if between you, the matter can’t be resolved, you’d need to proceed to dispute resolution through the Commissioner’s Office.

Chris Irons
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #373.

Question: Our Exterior doors contain asbestos and are being replaced. We’ve been told we need to pay for the replacement of deadlocks and peepholes. Does this sound right?

Our exterior doors are being replaced as they contain asbestos. Most, if not all, unit doors have deadlocks and peepholes which will have to be replaced as, we’re told, they may not be removed to re-use.

We have been told by the committee that owners need to pay for the replacement of the deadlocks and peepholes. There are some people who question this and believe that the replacement costs of these items are the Body Corporate responsibility. Can you help with a correct procedure?

Answer: The doors should be replaced like for like.

It depends on how the new door was approved but if it were approved as maintenance (as it sounds to be the case) then generally they should be replaced like for like – which would include the deadlock and peephole (assuming there are no fire safety restrictions surrounding that).

Frank Higginson
W: http://www.hyneslegal.com.au
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #301.

Question: Who is responsible for the exterior maintenance such as cleaning of the roof? Is it the Body Corporate or the lot owner?

The roofs on all Townhouses and villas in our complex are colourbond. They all need cleaning.

Is exterior cleaning owner’s or the body corporate’s responsibility? Some roofs are badly stained due to overhanging trees on community property that the body corporate has refused to have trimmed. Additionally, the concrete fire barriers between dwellings that extend above roof height also need cleaning.

Who is responsible for the exterior cleaning of the building?

Answer: This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show.

This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show. The body corporate manager should be able to confirm this.

If it is building format plan (BFP) – it will be the body corporate’s responsibility, and if it is a standard format plan (SFP) it will be the owner’s responsibility.

The threshold question though is whether the cleaning is required to ensure that they are in good condition. If they are in good condition notwithstanding they are not clean, there is no obligation to clean them.

Frank Higginson
W: http://www.hyneslegal.com.au
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #234.

Question: We were recently hit by a hail storm which caused damage to our apartment. Who would be responsible for exterior maintenance such as replacing and repairing our damaged fly screens?

Recently in Queensland, we were hit with a hail storm which damaged our fly screens on the southern side of our unit. As the window are the responsibility of the body corporate, wouldn’t fly screens be considered exterior maintenance and treated the same?

Who would be responsible for replacing and repairing our damaged fly screens?

Answer: If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate.

The body corporate in a building format plan is responsible for windows and associated fittings situated in a boundary wall. That would include fly screens (as an associated fitting).

If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate. However, if the screens were installed by the owner, that is an improvement that they would be responsible for.

Frank Higginson
W: http://www.hyneslegal.com.au
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #231.

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