These Q&As cover questions we have received in from ACT lot owners about common property boundary lines and who is responsible for repairs and maintenance in strata buildings in Canberra.
Table of Contents:
- QUESTION: In the ACT are apartment balconies considered part of common property or part of the unit entitlement? Who then is responsible for the maintenance of say, damage to the balcony’s tiles?
- QUESTION: For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?
- QUESTION: Residents in our complex have reported seeing rats in areas like our terraces. Should the committee deal with this common area issue?
- QUESTION: Who is responsible for replacing and repairing FOBs to our underground car park gates and entry doors into my building? Is it up to the body corporate to make sure I can access the building with a working fob?
- QUESTION: There seems to be some varying views about what is the owners’ property and what is common property and where the boundaries are. Can you please clarify this?
- QUESTION: Due to a water leak at our building between the internal walls of two units, we are trying to locate the common property boundary lines. Is there a resource to assist for ACT Strata Schemes?
- QUESTION: In our older Class A building, the windows need replacing due to failing locks. Would this be an owners corporation or lot owner responsibility to fix?
- QUESTION: Who pays for fence replacement in a townhouse complex? Are strata management companies in ACT responsible for covering the full cost?
- QUESTION: Who Is responsible for the repair of common property pipes?
- QUESTION: Who has ownership and therefore responsibility for repair of the lock up garage doors in an apartment? Would this be common area maintenance or up to the lot owner to fix?
- QUESTION: Replacement of the roofs in our scheme’s Class B townhouses, in my view is not within the definition of roofing repairs or maintenance of common areas. Is this a roof repair or replacement?
- QUESTION: My double size sloping drive strip has many areas of broken concrete creating a tripping hazard. The Owners Corporation says it is not covered. As I’m 80 I’m terrified of falling.
- QUESTION: Should strata funds be used to improve the front verge especially as there was no formal motion presented at the AGM about this expenditure for work outside of the Strata Plan?
Question: In the ACT are apartment balconies considered part of common property or part of the unit entitlement? Who then is responsible for the maintenance of say, damage to the balcony’s tiles?
Answer: Balconies are generally considered a unit subsidiary by the registered site plans.
Balconies are generally considered a unit subsidiary by the registered site plans. Under the Unit Titles Act 2001, a unit subsidiary is a part of a parcel identified as a unit subsidiary annexed to the unit. As a result, the balconies of each individual unit are owned by the respective owner of that unit. However, under the Unit Titles (Management) Act 2011, balconies are also considered a defined part and are, therefore, the responsibility of the Owners Corporation to maintain. Simply put, the balcony is owned by the owner of the unit while it is the Owners Corporation responsibility to maintain it.
Mark Zezulka
ACT Division Manager
Civium Communities
E: [email protected]
This post appears in Strata News #466.
Question: For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?
I understand that in the ACT for class B units under the Unit Titles legislation, the Common Boundaries Act applies to common boundaries between two lots.
For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?
Answer: Where you have a class B development with a boundary between two lot properties, then the owners do still need to comply with the applicable rules. However, the Common Boundaries Act could still apply to that situation.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #462.
Question: Residents in our complex have reported seeing rats in areas like our terraces. Should the committee deal with this common area issue?
Myself and others in the complex have reported seeing rats in the common area. These rats are entering our terraces and leaving droppings.
The committee states that we need to obtain a pest investigation report for inside our apartment before they decide to do anything. We believe that the committee will not do anything as there is no pest control of any type in any of the 7 apartment blocks and they avoid taking responsibility. This is a common property issue and we certainly do not have rats inside our apartment.
If other people see them does that mean everyone needs to get a pest control report?
Not sure what to do here, so any advice would be appreciated. We currently personally use poison etc to stop them but we are just 1 unit and this is a bigger issue.
Why should we be having to deal with this common area issue?
Answer: Owners can undertake action in relation to pest control to their homes and yards.
From the description we would understand that this is a Class B complex.
The Owners Corporation can only take responsibility for areas of common property unless the required resolution has been passed at a general meeting allocating responsibility to areas of individual units to the Owners Corporation.
Owners can undertake action in relation to pest control to their homes and yards.
- The first step would be to eliminate entry points
- Before you put down any traps or bait, investigate where the rodents are entering
- Try to determine where the rodents are living and building nests and set traps around these areas.
If nests are found to be on common property then the Owners Corporation would be responsible.
The owners could request a general meeting with written notice to the secretary of the Owners Corporation with the relevant motions for pest control on common property areas.
3.5 General meetings other than annual general meetings
- The executive committee of an owners corporation may call a general meeting, by notice under section 3.6, whenever it considers appropriate.
- Subsection (3) applies if the executive committee of an owners corporation receives a written request (a meeting request), stating the matters to be considered at the meeting, from people who are entitled to vote on all motions for units whose combined unit entitlement is at least 1/4 of the total unit entitlement in the units plan.
- The executive committee must hold a general meeting, by notice under section 3.6, within 28 days after the day it receives the meeting request.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #453.
Question: Who is responsible for replacing and repairing FOBs to our underground car park gates and entry doors into my building? Is it up to the body corporate to make sure I can access the building with a working fob?
Recently the fobs stopped working so I replaced the batteries. They still open the doors to the building but no longer work on the underground parking gates. I’ve contacted our body corporate to organise replacing the fobs so I can access the building. I was told that I would have to pay $300 for the fobs to access the underground parking.
Are replacement fobs a lot owners cost when they seem to be faulty? I’d understand if I lost a fob and the issue was my fault. If the fobs were supplied when I purchased the property, surely it is up to the body corporate to make sure I can access the building with a working fob.
Answer: The Owners Corporation is responsible for the maintenance and upkeep of the system but the unit owner would be responsible for paying for the replacement of lost, damaged or non-working units.
The life span of remotes/fobs/swipes can be limited and sometimes depends on closeness to other devices, water/moisture and physical damage etc.
Usual cause for non-working remotes are batteries. But if batteries are replaced and still not working to capacity then this would indicate that said remote needs replacing.
Although it does seem strange that both remotes have gone at the same time. Need to determine if any other resident is having an issue. If so then this would indicate a possible issue with the transmitter, pairing issues or the sensor.
The Owners Corporation is responsible for the maintenance and upkeep of the system but the unit owner would be responsible for paying for the replacement of lost, damaged or non-working units.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #448.
Question: There seem to be some varying views about what is the lot owners’ property and what is common property and where the boundaries are. Can you please clarify this?
I live in a recently completed townhouse development in the ACT.
There seem to be some varying views about what is the lot owners’ property and what is common property and where the boundaries are.
I noted in a recent newsletter there was a reference to a Plan of Subdivision in Victoria and I wondered if there was a similar document for developments registered in the ACT.
Your advice would be much appreciated.
Answer: This will depend if Class A or Class B. Most townhouse developments are Class B.
This will depend if Class A or Class B. Most townhouse developments are Class B.
Definitions of A and B Class under Unit Titles Act 2001
The boundary of an A-Class unit is midway between the walls, floors and ceilings.
The boundary of a B class unit has boundaries unlimited by height unless there is an encroachment above or below ground level by another part of the parcel.
(This means that the B class unit is a piece of land identified in the Units Plan upon which buildings (townhouse/garage/carports) have been erected.)
The boundary of a unit subsidiary lies along the centre of the wall. Everything outside that central line is common property.
Responsibility for Repair and Maintenance
Owners corporation is responsible for repair and maintenance of common property.
Owners corporation is also responsible for repair and maintenance of load-bearing structures and balconies in A-class developments.
Unit owners are responsible for repair and maintenance of their unit.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #385.
Question: Due to a water leak at our building between the internal walls of two units, we are trying to locate the common property boundary lines. Is there a resource to assist for ACT Strata Schemes?
We have a water leak in our building between the internal walls of two units. We are trying to locate the common property boundary lines. Is this part of a water pipe “common property” or “within boundary walls”, and hence who is responsible for fixing the problem? Is it the Body Corporate’s responsibility?
We located this link to NSW Fair Trading: Repairs and maintenance in a strata scheme. Is there a similar resource for strata schemes in the ACT?
I’m looking forward to hearing your advice.
Answer: There has been a set of Fact Sheets developed by Justice and Community Safety (JACS).
See FactSheet #4 Class A Units and FactSheet #5 Class B Units in ACT. For detailed information on Class A & Class B Units in the ACT, take a look at this page from the Environment, Planning and Sustainable Development Directorate – Planning: Unit Titles. Class A is traditionally units and Class B is Town House developments. One development is vertical, the other horizontal.
Hopefully, in time a booklet similar to NSW Strata Living could be developed by ACT.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #194.
Question: In our older Class A building, the windows need replacing due to failing locks. Would this be an owners corporation or lot owner responsibility to fix?
We own a Class A apartment on the ground floor in a multi level apartment complex. The complex is around 20 years old.
Over the last 12 months the locks on our external sliding windows have begun to fail. Some will not lock (meaning that the windows cannot be secured except using dowel rods in the tracks), and some will not unlock (meaning we cannot open the windows).
We have had a window expert come to assess the problem. Because of the style of window locking mechanism, the whole window including the frames will have to be replaced.
My initial read is that the windows and all their moving parts are part of the common property and therefore the responsibility of the owners corporation, but am not 100% sure. I would be grateful for advice on whether this is an owners corporation or lot owner responsibility to fix.
Answer: Definitely lot owners responsibility for the locks. And owners normally pay for any upgrades to windows.
Definitely lot owners responsibility for the locks. And owners normally pay for any upgrades to windows. It would also depend if other windows are in a similar state. The first step is to determine the boundary.
A Class
- If a window forms part of the common property (ie boundary of the unit) then replacing or repair and maintenance – 50/50 unit owner and owners corporation (unless owners corporation resolves otherwise)
- If window does not form boundary of unit then – unit owner
- If window treatments are inside the boundary of the unit – unit owner responsibility
- If window treatments on common property windows (ie entrance foyer, gym, library) – owners corporation
- All windows require replacement or double glazing – owners corporation responsibility or may resolve 50/50 unit owners/owners corporation (if boundary of unit)
- Architraves
- inside the unit boundary – unit owner
- external to the unit on common property wall/entrance foyer/garage/Communal laundry/cabana/gym/sauna/spa/poolroom – owners corporation
- Fly screens/security screens – unit owner responsible. (unless owners corporation resolves otherwise)
- Locks – unit owner (unless owners corporation resolves otherwise)
- Sash cord replacement – unit owner as it is inside the unit boundary and not located on common property
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #285.
Question: Who pays for fence replacement in a townhouse complex? Are strata management companies in ACT responsible for covering the full cost?
Who pays for fence replacement? Are strata management companies in ACT responsible for covering the full cost? I have been told by a friend that fencing and roof repairs in my townhouse complex should be paid for by the strata company. Is this correct? I have asked my strata company for a copy of the by-laws.
Answer: Who pays depends on where the fence is located and whether the units plan is for A or B class units.
In short, it depends on where the fence is located and whether the units plan is for A or B class units.
Firstly, if the fence is located on the boundary between:
- common and lot property;
- lot and lot property; and
- common or lot property and a neigbouring property,
the Common Boundary Act 1981 applies.
Otherwise, if the fence is common property, the owners corporation must repair and maintain the fence.
It is also possible that the fence is lot property and if so, the lot owner must repair and maintain the fence.
Finally, if a rule has been passed and is in place in relation to fences, it could affect the application of the above principles. In addition, the units plan should be referred to to determine how the above principles might apply as notations on the units plan may affect the application of the above principles.
In order to determine which of the above scenarios apply, I would need to see the rules, the units plan and have the particular fence identified.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #179.
Question: Who Is responsible for the repair of common property pipes?
The pipes from my property to the common stormwater system are blocked on the border of the land and the drive. I have had this checked by a plumber. This causes my three downpipes to overflow each time it rains, causing flooding in my yard.
I have brought this issue to the attention of the Body Corporate who are claiming it is my responsibility to pay for any repairs. I am not sure about this as the issue is not on my property. Can you please advise me?
Answer: If the blockage is found to be in a common pipe servicing more than one unit then it will be the responsibility of the Owners Corporation.
If the blockage is in the branch line from the owners property to the common (Owners Corporation) pipework then will be the owners responsibility, irrelevant whether within the boundary of the unit or the common property. The branch line services one unit only and therefore that owners responsibility..
If the blockage is found to be in a common pipe servicing more than one unit then it will be the responsibility of the Owners Corporation.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #395.
Question: Who has ownership and therefore responsibility for repair of the lock up garage doors in an apartment? Would this be common area maintenance or up to the lot owner to fix?
I am wondering if you can tell me who has ownership and therefore responsibility for repair of the lock up garage doors in an apartment basement. Would this be common area maintenance or up to the lot owner to fix?
We live in a Class A building and have a lock up garage which is in very close vicinity to a small car parking spot. Our garage door has been bumped twice by someone reversing out of that small car parking spot and we are trying to ascertain whether it is our responsibility to fix the garage door or whether it is common area maintenance and therefore corporate body responsibly.
Answer: The repair to the door would normally be the responsibility of the unit owner.
Damage to the door by persons unknown would be classified as an insurable event and therefore be part of the Owners Corporation insurance policy. However, the insurers would be unlikely to continue paying claims until such time as the Owners Corporation took some action to prevent ongoing issues. The insurers may also place a large excess on future claims.
Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700
This post appears in Strata News #244.
Question: Replacement of the roofs in our scheme’s Class B townhouses, in my view is not within the definition of roofing repairs or maintenance of common areas. Is this a roof repair or replacement?
Our Owners Corporation in Canberra has both Class A apartments and Class B townhouses.
In 2002, it was agreed by Special Resolution that the Owners Corporation would carry out roofing and structural repairs for Class B units, even though they are private property (Under Section 51 (3) (f) of the UTA 2001).
At the last AGM, it was assumed that this agreement would include total re-roofing of the Class B Townhouses at Owners Corporation cost using more expensive materials as well as other upgrades such as safety ladders and gutter-guards.
Is this a roof repair or replacement? In my view, this is not within the definition of roofing repairs or maintenance of common areas. The townhouse owners should be required to pay for the re-roofing of their own private property.
I would appreciate your views.
Answer: The question then is, what is the extent of the word “maintain”?
Assuming all the requirements of a special resolution have been met and the units plan does not contain any notation indicating otherwise, an owners corporation may resolve to maintain all buildings on all class B units on the units plan.
The question then is, what is the extent of the word “maintain”?
When completing repair work, the owners corporation need only repair the damaged item so that after the repair (or renewal or replacement if required) the damaged item then has the performance and functional efficiency at least equivalent to that prior to when the damage was caused. That is, an owners corporation is not required to upgrade that part of the property when conducting the repair, replacement or renewal of that part.
What would be classified an upgrade was considered by Justice Barrett in The Owners – Strata Plan No 50276 v Thoo [2013] NSWCA 270. Justice Barrett held that the replacement of a flimsy brushwood fence with a substantial brick fence was an upgrade. His view was that ‘[r]eplacement connotes no more than the installation of one thing in the place of another to achieve functional equivalence.’
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #176.
Question: My double size sloping drive strip has many areas of broken concrete creating a tripping hazard. The Owners Corporation says it is not covered. As I’m 80 I’m terrified of falling.
Answer: Assuming this is a B class unit development, then it is likely to be lot property and the responsibility of the owner of the lot. However, I would need to see the units plan to be definitive about this answer.
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #406.
Question: Should strata funds be used to improve the front verge especially as there was no formal motion presented at the AGM about this expenditure for work outside of the Strata Plan?
I have a question about strata funds being used for beautification works on a front verge, to prevent vehicles parking & to protect services pits.
A discussion about plantings on the front verge was held at a meeting following this year’s AGM. The minutes of the AGM have no record of the discussion.
The Executive Committee indicated that proposals could be submitted by owners & these would be circulated for owners comments etc. This did not occur, and we know a couple of owners submitted alternative solutions.
We have been informed via a newsletter that planting works will be undertaken on the verge which is ACT property. Expenses are to be funded from our Owners Corporation budget.
Does the strata management/Executive Committee have the authority to spend strata funds on works that are not within our building’s Strata Plan? We believe they don’t have this authority as there was no formal motion presented at the AGM about this expenditure for work outside of the Units Plan, as the boundary finishes prior to the footpath/verge. The newsletter states owners agreed, however, no vote was taken.
I’d appreciate advice as we’re concerned that this expenditure could blow out with ongoing maintenance costs, as well as not being a practical solution for preventing vehicles parking on the verge.
Answer: In short, the owners corporation would be acting ultra vires in spending money on the verge.
The nature strip is public unleased land and is governed by the Public Unleased Land Act 2013 (ACT). Consequently, while it may be the custom in the ACT that adjacent land owners maintain their nature strips (to a degree the owners see fit), the owners corporation has no legal obligation to maintain the nature strip.
Indeed, section 19 of the Public Unleased Land Act 2013 requires an application to be lodged if work is to be done to the nature strip.
I would need to know more about the specifics to advise on the particulars and would also need to be paid for that advice. However, in short, the owners corporation would be acting ultra vires in spending money on the verge.
For more on the powers of the owners corporation, I suggest you purchase my book – Kerin Benson Lawyers Guide to ACT Strata Law (see below for the link to the text).
Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060
This post appears in Strata News #311.
This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.
Have a question or something to add to the article? Leave a comment below.
Read next:
- ACT: CCTV Cameras and Privacy in Strata
- ACT: Q&A Bylaws to ban smoking in apartments
- Your Nature Strip: Guidelines for Use of Residential Nature Strips
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