A familiar problem: rooftop structures that benefit only some
On my desk at the moment are three matters for three different bodies corporate, all with the same problem – whether to remove, replace or repair rooftop building elements that benefit only some of the lot owners.
The architects for their buildings (bless their creative cotton socks) had incorporated rooftop elements that would provide amenity (and thus sales value) to rooftop areas sold to penthouse owners, without breaching gross floor area / ‘habitable space’ restrictions.
Think part roofs, shade sails or even retractable blinds covering some of the ‘roof garden’ or rooftop exclusive use ‘courtyards’, to keep the sun off the champagne bucket (with matching flutes), artfully captured in the ‘off the plan sale’ marketing shots for said penthouses.
The issue of course is that, particularly in coastal environments, those rooftop structures get damaged by extreme weather (hell, they even get sun-damaged by ‘normal weather’!), they degrade over time, and eventually need to be repaired, replaced or removed. That deadline can approach even faster when routine maintenance is not performed.
In every one of these cases that I look at, there is an assumption that the body corporate must maintain the rooftop structures. Inevitably that has been done (a little bit) in the past, but when the big bill falls due to be paid, the issue is looked at seriously, and for the first time, properly.
Why has no one looked at this before?
What? You say, why has no one looked at this properly in the last 15 to 20 years?
Well, because nothing has fallen down in that time, the building has been painted at least once already, and a good paint job covers a lot of sins, even the red ferrous monster waiting to emerge.
The strata lawyer’s algorithm
The strata lawyer’s ‘algorithm’ in such cases is pretty straightforward:
- identify and locate the structures in question
- locate the boundaries between and among the relevant lots and common property
- check whether there is any grant of exclusive use
- determine who owns the structures
- determine what the maintenance obligations are, and who they fall on
- determine what maintenance has been done in the past, by whom and when
- determine (I should say ‘try to predict’) who an Adjudicator is likely to find responsible
- get quotes for the options to repair, replace or remove
- formulate sensible recommendations, consistent with the facts, the law, and the likely length of the Adjudicator’s foot (an old equity lawyers’ joke; look up the ‘Chancellor’s foot’ if you don’t get it)
As sure as night follows day, during that process, the strata lawyer scratches their head and says, ‘Why the hell was this not set up correctly in the first place?’, which statement of exasperation reflects an until then internalised professional assessment that the developer’s lawyers were twits.
Why it wasn’t set up correctly in the first place
Why? In almost all cases the ownership and maintenance obligations are not clearly planned for and then properly documented, so that they are clear. The most common result being that part of a structure is to be maintained by the body corporate, and another part by the penthouse owner.
Now, even if you don’t subscribe to the ‘user pays’ principle, the very least that a developer’s lawyer should do is to avoid that outcome, by ensuring that the titling and structuring arrangements resolve, or don’t give rise to, any ambiguity. This avoids fights later on, even if it is the body corporate (and thus all lot owners) who have to carry the can for replacing the ‘beautifully articulated’ rooftop structures.
A strata lawyer engaged by a developer would do that, and allocate the maintenance burden to the lot owner, where the rooftop structure concerned is only for that lot owner’s benefit. Why? Because that is the outcome least likely to cause expensive, time-consuming and socially divisive litigation later on, when the big maintenance bill falls due.
What a good strata lawyer actually does
Now, I know that developers’ lawyers (including BAGL!) operate in ‘red water’ (it’s competitive out there) and that they do their jobs, always, per the client’s instructions.
Having done this job for over a quarter of a century, I can tell you that the marginal cost of fixing issues like this, if the lawyer is involved early with the rest of the development team, is three fifths of stuff all.
A good strata lawyer knows where the lot and common property boundaries for a building will be, but more importantly, can be made to be, just as well as the surveyor does. A better strata lawyer can ask the architect about the maintenance regime and expected lifespan of the roof structures, and how they would be repaired or replaced (prompting a little architectural reflection, and revision, we hope). The best strata lawyers will then only have to check the draft survey plan, exclusive use plans and floor plans in the off-the-plan contract, as against what was thought about, planned for and presented to Council as part of the Development Application package, and then, if absolutely necessary, fix any little lacunas with a by-law tweak or two.
What it costs when nobody does
Why bother? Those three matters on my desk have repair, replacement and removal costs varying from $500K to $1.5m, and ranging from $10K per lot to upwards of $50K per lot. For that money, bodies corporate will hunker down, and they will fight, and they will expend great sums on legal expenses when doing so. All of which on the stated basis that ‘it is not fair that we pay to replace the shade sail over the penthouse owners’ rooftop BBQ areas’.
So, architects, developers and developers’ lawyers, please pay attention to this issue, and please get it right, in the beginning. It costs very little to do, and if you do it, you won’t leave a time bomb of confusion, stress, vitriol and disappointment behind you.
Final note: if you think you will be long gone by then, and no one will connect you with the problem at hand… I cannot speak for other strata lawyers, but inevitably I find that when advising on these matters, I always seem to end up pointing out, in my advice, who the original development team was. That is, who designed, who structured, and who sold the problem that my clients are now facing.
This article is general information only and does not constitute legal advice. It is written from a Queensland perspective, and the law differs between States and Territories. You should obtain advice specific to your circumstances before acting.
© 2026 Bugden Allen Group Legal Pty Ltd
This post appears in Strata News #813.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
This article has been republished with permission from the author and first appeared on the Bugden Allen website.
Leave a Reply