This article discusses owners corporation control over external appearance, explaining when an OC can set rules about how lots look and who pays for related maintenance.
Question: Our rules govern exterior fixtures and colours of curtains but do not explicitly mention outward appearance. What are the OC’s rights to dictate appearance?
Boundaries on our plan of subdivision are typically exterior face, including apartment walls and fenced gardens backing onto a common area. Our special rules govern exterior fixtures, planter boxes, and colours of curtains but do not explicitly mention outward appearance (such as in the model rules 5.2(1)).
What are the owners corporation’s (OC) rights to dictate appearance, e.g. colours?
If the OC can dictate appearance, are they responsible for the cost of maintaining that appearance, e.g. the painting? In our case, we have included complex painting in the long-term maintenance plan approved at the AGM.
Answer: Each case must be assessed on its precise facts and according to what the plan of subdivision provides.
Whether or not an owners corporation has registered rules, the model rules will apply to the owners corporation to the extent that the registered rules do not cover the subject matter of the relevant model rule.
The owners corporation has the power to make rules concerning the external appearance of lots, and this is specified in Schedule 1 of the Owners Corporations Act 2006. This may include the colour palate. It is in the development’s interest to abide by registered rules concerning external appearance. An owners corporation can undertake work to private lot property (such as painting) only if:
- it complies with Section 48 of the Act (i.e. provides a notice to a lot owner because it is not properly maintained); or
- if it is in the course of providing a service to lot owners as authorised by Section 12 of the Act by special resolution; or
- if it considers it a service in accordance with Section 47 of the Act.
The Tribunal has decided cases where an owners corporation has undertaken repair works to private lot property in circumstances where the works were to items effectively deemed a service (i.e. something that contributed to the structure or support of the building). Owners corporations need to be careful that they incur the costs of completing private lot works in accordance with the Act and strike levies appropriately. In most cases, the private lot owner should bear the major responsibility for the costs of any works associated with private lot property. However, each case must be assessed on its precise facts and according to what the plan of subdivision provides.
This post appears in the March 2024 edition of The VIC Strata Magazine.
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