Question: Our building is mixed-use with a commercial CMS and residential BMS. The BMS and CMS are silent on the roof maintenance. Commercial does not want to contribute but residential do not think it should be only their cost. How do we resolve this?
We are in a building format plan. Commercial shops on the ground level are a separate commercial Body Corporate. The eight floors above are a separate accommodation Body Corporate.
Our main roof needs fixing and think both BCs should pay their share.
Our common charges are split but the BMS and CMS are silent on the roof maintenance. The accommodation BC believes the commercial BC should be paying its percentage share, but the commercial lot owners are reluctant. The accommodation BC is saying this is common property for all BCs and not just the residents. What do we do now?
Answer: The only right the residential lot would have to seek recovery of those maintenance costs from the commercial scheme is if the BMS included such a right.
The rooftop would seemingly be the common property of the residential body corporate. It, therefore, has a statutory maintenance obligation to maintain the rooftop.
The only right the residential lot would have to seek recovery of those maintenance costs from the commercial scheme is if the BMS included such a right. This would need a specific review of the terms of the BMS. Generally, such a right would not exist unless the commercial lot made use of the rooftop area (but it is still possible that a reimbursement rights exists).
To confirm the position, the body corporate should seek legal advice and provide a copy of the BMS.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
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