This article discusses who maintains exclusive use car parks when the by-law is silent on maintenance obligations.
Question: Does an exclusive use car park by-law that is silent on maintenance make the lot owner responsible for keeping the car park clean and tidy?
Our 126 lot body corporate in Queensland is regulated under the accommodation module and recorded as a building format plan. All 250 plus basement car parks are common property subject to an exclusive use by-law.
The exclusive use by-law does not mention maintenance or require the car parks to be kept clean and tidy. Do general maintenance responsibility passes to the lot owners who benefit from the exclusive use? If so, does maintenance include keeping the car parks clean and tidy?
Answer: Where the exclusive use by-laws are silent concerning maintenance conditions, the owner of the lot to whom exclusive use or other rights are given is responsible to keep the area in a clean and tidy condition (and otherwise in good condition).
Where a portion of the common property for the scheme is subject to an allocation of exclusive use, the legislation sets out the general maintenance obligations for both the owner of the lot with the benefit of the allocation and the body corporate. Generally speaking, the owner of the lot with the benefit of that allocation of exclusive use must maintain in good condition that portion of the common property, and bear the operating costs incurred in respect of that portion of the common property. The body corporate has separate obligations in respect of other elements of the scheme that are captured in the area allocated for exclusive use.
The general obligations of the owner of the lot with the benefit of the exclusive use allocation will be displaced where the exclusive use by-law imposes any obligation with respect to maintenance of, or operating costs associated with, the exclusive use area.
Accordingly, where the exclusive use by-law is silent on the maintenance responsibilities (or operating costs), the owner of the lot to whom exclusive use or other rights are given is responsible for the maintaining the exclusive use area in good condition (and for the operating costs for that part of the common property) pursuant to section 182 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020.
Good condition includes and goes beyond that of clean and tidy and has been considered to mean:
- in a state which enables the item to serve the purpose for which it exists;
- include requirement to take preventative measures to ensure that there will not be a malfunction of the item; and
- be contravened as soon as the item is in disrepair or no longer operating effectively at all.
Relevantly, the Court in Oceana on Broadbeach Community Titles Scheme 24163 v Searle [2003] QCA 283 explained (our emphasis): … It does no violence to language to apply it to the state of cleanliness of the common property. Cleaning the windows is one activity which may constitute maintaining the common property in good condition…. Perfect cleanliness is both unattainable and unmaintainable. What amounts to good condition must be determined by reference to the circumstances. I make no finding of fact in asserting that the obligation to maintain the exterior of windows in good condition includes the obligation to clean them from time to time.”
Accordingly, where the exclusive use by-laws are silent concerning maintenance conditions, the owner of the lot to whom exclusive use or other rights are given is responsible to keep the area in a clean and tidy condition (and otherwise in good condition).
Katya Prideaux Mahoneys E: kprideaux@mahoneys.com.au P: 07 3007 3726
This post appears in Strata News #774.
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