The information in this article will assist when reading strata plans. It discusses common property boundaries and who is responsible for what when it comes to apartment repairs and common property defects.
Table of Contents:
- QUESTION: What are the rules regarding cleaning of the external windows (common property) in Victoria?
- QUESTION: The common wall in my townhouse moved and the Gyprock is damaged. Who is responsible for repairing this wall?
- QUESTION: The air conditioners for all 3 townhouses in the complex are located on common property. If one of the air conditioning units needs replacing, who is responsible for the repairs?
- QUESTION: Our mailboxes are located on common property. They were broken into again last night. Is their repair the responsibility of the Strata Manager?
- QUESTION: Our roof is leaking and is in need of repair. In a detached unit on a strata title in Victoria, can the responsibility for the repair be shifted to the lot owner if the repair benefits only one lot?
- QUESTION: My window/sliding door leaks and my Owners Corporation say this is not their responsibility to repair. Why would they not be responsible for this maintenance and repair?
- QUESTION: A number of lot owners are having problems with leaking windows within their apartments. Where are the common property boundaries? Is this an owners corporation or individual lot owner issue?
- QUESTION: For some time we have had water ingress through the walls and windows of our investment unit. The body corporate say it is my cost to repair. Is this correct?
- QUESTION: Who is responsible for repairing roof tiles on my single storey strata unit?
- QUESTION: My concrete balustrade on my balcony is cracking severely and I’m not sure who is responsible for the repair.
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Question: What are the rules regarding cleaning of the external windows (common property) in Victoria?
Answer: There are no “rules” for cleaning of external windows which are designated as common property in Victoria.
There are no “rules” for cleaning of external windows which are designated as common property in Victoria. However, the Owners Corporation does have a responsibility to repair and maintain common property:
Section 4 (b) of the Owners Corporation ACT 2006 sets out one of the primary functions of an Owners Corporation, which is to repair and maintain the common property.
You would expect that maintenance of windows in the form of cleaning would fall under this obligation.
Often members of the Owners Corporation or Committee will agree to put a schedule of cleaning in place, where the window cleaning occurs every six months, or quarterly (depending on the circumstances).
However, frequency can also be determined by cost, which usually stems from the size of the building and difficulty of the windows being cleaned. For example, a building with 20 floors will be difficult and costly to clean (often thousands) as the access to the windows requires specialist height access equipment and contractors. For a building with only 2-3 levels, most windows can be cleaned with booms or extensions from the ground, so the cost is less significant.
In cases where windows are private property, but are inaccessible, the Owners Corporation may also choose to include those inaccessible windows in their scheduled cleaning, at the same time they attend to the common property windows. Or, in the case where windows are still common property, but are (for example) on a balcony, and it is difficult for a contractor to enter all private lots, the Owners Corporation may take the view that each lot owner cleans their own windows to make life easier for all.
Your Owners Corporation should discuss and look at a cost-effective solution that is in the best interests of the building to undertake regular cleaning of windows.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in the November 2020 edition of The VIC Strata Magazine.
Question: The common wall in my townhouse moved and the Gyprock is damaged. Who is responsible for repairing this wall?
I live in a townhouse with 3 townhouses attached together. The common wall between my unit and next door unit moved. The wall is crack and the Gyprock is hanging and looks it is going to fall.
The owners corporation says I have to fix the Gyprock on the wall however our strata manager has previously said that anything on common walls is covered by strata except for the painting .
Who must fix the falling Gyprock on the common wall?
Answer: First you need to confirm ownership of the wall.
There are a few factors here which you must consider and are difficult to answer without all the facts.
Firstly, you need to confirm ownership of the wall. Is it common property, or is it privately owned and shared 50/50 between your neighbour and yourself?
By the way the manager has responded, it sounds like it is a common property wall. This may also indicate internal face boundaries. However, it would help if you ascertained the ownership of the wall before you take any further steps.
Another factor to consider is what has caused the wall to move. This might be the ground settling or contraction/expansion of the earth around the house. Whatever the issue, it needs to be investigated so you can determine how to resolve the issue. There’s no point in working out who should fix the wall until you fix the problem which has caused it to crack in the first place.
I would suggest finding out how the crack has occurred, who’s responsible for resolving that issue first. Then you can fix the crack in the wall.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in the September 2020 edition of The VIC Strata Magazine.
Question: The air conditioners for all 3 townhouses in the complex are located on common property. If one of the air conditioning units needs replacing, who is responsible for the repairs?
I live in a group of 3 townhouses with the air conditioners for all 3 townhouses on common property (they actually sit on my roof but are placed on an elevated platform, so I am told by other owners it is common property).
If one of the air conditioning machines breaks down and needs to be replaced, is this something that the owners should split costs in considering it is on ‘common property’? Or are owners responsible for their own machines?
Answer: The repairs and maintenance of each unit should be the responsibility of the relevant lot owner to which it is connected.
Good question, and one which is often asked due to confusion around where it is located or who owns the asset or service.
The first overarching detail which must be applied to a circumstance like this is the fact these units or condensers represent a service. In particular, they appear to service each separate townhouse exclusively.
The Act is quite clear about services and their maintenance. In particular, refer to Section 129 of the Owners Corporation Act 2006.
129. Care of lots
A lot owner must—
- properly maintain in a state of good and serviceable repair any part of the lot that affects the outward appearance of the lot or the use or enjoyment of other lots or the common property; and
- maintain any service that serves that lot exclusively.
This sets out that any service which serves a lot exclusively, must be maintained by the relevant lot owner.
A ‘service’ generally falls under the description specified in the Subdivision Act 1988, Section 12(2). Air conditioning usually falls into the category of ‘air’ in terms of a type of service.
Your comments regarding common property and where the units sit is also one covered by Section 12(2). This talks about implied easements which are quite normal with plans of subdivision.An easement is a section of land registered on your property title. This gives someone the right to use the land for a specific purpose, even though they are not the land owner. The most common easement you will encounter will be drainage, which often exists along the boundary of your property. Typically, a drainage easement is in place for your council or water company to maintain sewerage or drainage on your land and access it when required.
In this case, it is safe to say all lot owners have an implied easement for a provision of air services to their lots, which are located on or in common property.
See Section 12(2) set out below:
(2) Subject to subsection (3), there are implied—
- over—
- all the land on a plan of subdivision of a building; and
- that part of a subdivision which subdivides a building; and
- any land affected by an owners corporation; and
- any land on a plan if the plan specifies that this subsection applies to the land;
- for the benefit of each lot and any common property—
all easements and rights necessary to provide— - support, shelter or protection; or
- passage or provision of water, sewerage, drainage, gas, electricity, garbage, air or any other service of whatever nature (including telephone, radio, television and data transmission); or
- rights of way; or
- full, free and uninterrupted access to and use of light for windows, doors or other openings; or
- maintenance of overhanging eaves—
and
if the easement or right is necessary for the reasonable use and enjoyment of the lot or the common property and is consistent with the reasonable use and enjoyment of the other lots and the common property.
So, to circle back to your question(s). The repairs and maintenance of each unit should be the responsibility of the relevant lot owner to which it is connected.
If it is not practical for the owner(s) to carry out the maintenance, then the Owners Corporation may do this on their behalf. The costs of any maintenance carried out can still be recovered from the lot owner(s) that benefit. This is covered under Sections 47, 48 and 49 of the Owners Corporation Act 2006.
My advice would also be to check your plan of subdivision to confirm the units do in fact sit in or on common property. It’s unusual to mount all units in one area, especially if they are for separate townhouses.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in Strata News #390
Question: Our mailboxes are located on common property. They were broken into again last night. Is their repair the responsibility of the Strata Manager?
Our mailboxes are in the main entrance to our building between an external sliding glass door and the sliding glass door to the foyer.
This morning the mailboxes were found to have been broken into again. The mailboxes are Not listed as part of the lot property and are in the common area.
Do that then make them the responsibility of the strata management company.
Answer: Technically no, but yes
Technically no, but yes.
This is a key function of the owner’s corporation pursuant to section 4(b)(i) of the Owners Corporation Act 2006 [the Act] and a very clear maintenance requirement pursuant to section 46 of the Act.
The responsibility of the mailboxes on common property is with the owners corporation itself. If an owner feels the mailboxes are not properly maintained then yes, they only need raise this with the appointed owner’s corporation manager, or any on-site facilities manager who will investigate and organise for any required repairs to be carried out.
Michael Darby
Quantum United Management Pty Ltd
E: [email protected]
P: +61 3 8360-8800
This post appears in Strata News #386.
Question: Our roof is leaking and is in need of repair. In a detached unit on a strata title in Victoria, can the responsibility for the repair be shifted to the lot owner if the repair benefits only one lot?
Our sliding door/window forms and is flush with the wall exterior on the east side of our building.
We own a fully detached unit on a strata title in Victoria. There is a block of 6 apartments on the title along with our unit. The roofs are defined as Common Property.
We would like to have our roof repaired as it’s leaking and has cracked tiles. We understand this is the responsibility of the Owners Corporation. We believe there is a clause along the lines of ‘if the repair/works benefit a single lot owner then that lot owner becomes responsible’. Is this lawful? If so, would we have to pay for any roof repairs even though it’s classified as common property?
We pay around 30% more Owners Corporation levies than other lot owners due to the size of our lot. If the roof is no longer included as really being “common property” and we pay any maintenance/repair costs, can we reduce our lot liability, therefore reducing our fees?
Answer: What you are referring to is the “benefit principle” noted under Sec 49 of the Owners Corporation Act 2006
This is interesting, given that you have a fully detached unit, but the roof is specified as common property. It’s unusual but can happen. Two main questions, and two answers.
The works are calculated on the basis that the lot owner of the lot that benefits more, pays more. Works may also be to common property or a lot.
Given what you have described, it would appear the benefit is wholly to your lot, and therefore the Owners Corporation may be taking this approach to recover the cost of any works from you. Even when the works are to common property.
Secondly, the calculation of your lot liability for fees is done prior to the completion of the build. This is determined with a fairly basic formula and one which surveyors generally use when constructing plans and drafting schedules.
Without unanimous consent of the Owners Corporation (all owners in favour) of the change, you are not able to alter the lot liabilities of any lots on the plan of subdivision. However, if you believe that the calculations are unfair, there is provision within the Subdivision Act 1988 to apply to VCAT and have the matter heard under Sec 34D.
Be prepared to have a surveyor review your plan and provide a report as to why the liabilities or entitlements are disproportionate to what they should be. This will be a cost you will need to incur if you wish to establish a strong basis for your position.
There have been plenty of successful Sec 34D applications for this very reason, and quite likely some which have failed. However, if you believe it is grossly unfair, then it’s worth discussing your options with a solicitor.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in Strata News #384.
Question: My window/sliding door leaks and my Owners Corporation say this is not their responsibility to repair. Why would they not be responsible for this maintenance and repair?
Our sliding door/window forms and is flush with the wall exterior on the east side of our building.
The subdivision shows that on the west side of the property the sliding door/window is under an awning/balcony. The east side of the building the doors are built into the wall, hence forming the exterior.
My east side window leaks and my Owners Corporation say this is not their responsibility to repair. My understanding is they are responsible for the maintenance and repair of the east side door/window.
Is this correct?
Answer: The most obvious answer is that you own the window where the leak is coming from.
The most obvious is that you own the window where the leak is coming from.
With these types of issues, the first question must always be, who owns the property in question?
Further, where is the leak originating from and who owns the property.
From the information you have provided, it is not clear as to what type of boundary exists where the window is located.
The easiest way to identify who is responsible is by referring to the plan of subdivision. This sets out the boundaries in the plan and can be interpreted to define ownership. Although most plans do not show specific detail like windows and doors, they provide the basics like walls, ceilings, and floors.
Depending on the type of plan, this will determine where to look for the information relating to the boundaries. The information can be on the front page of a plan under the section – notations, or on an older plan, the information is often two or three pages in.
One of the best guides to interpreting boundaries is set out in the Subdivision (Registrar’s Requirements) Regulations 2011 – Reg 10
I highly recommend checking out this regulation. Not only does it explain how to read and interpret boundaries, it also includes relevant diagrams which show how windows and doors fit into these boundaries.
In your case, the boundaries of the lot may be noted as exterior face, which would typically mean you own the wall and everything in it. This is only one example of many, so it is essential that you identify ownership as the first step.
Once ownership of the window has been clarified, this should assist with who is responsible for rectification of the leak. Of course, the issue could be the seal of the window has failed, or it could be something like the flashing requires attention. Whatever the problem, it needs to be investigated and resolved by the party who owns the window.
Alternatively, if the leak is originating from another location, it may be the duty of that party to resolve. Leaks can be difficult to solve, as water flows in all kinds of directions when it wants to.
Another thing to keep in mind is your Owners Corporation could have an agreement in place which stipulates each lot owner takes care of their window maintenance (repairs or replacement).
Sometimes Owners Corporations take this route in older style buildings, even when the boundary is noted as ‘median’.
Median boundaries are shared 50/50 ownership of a specific boundary. One party is responsible for one side, and the other party is responsible for the other. An example is when you have a boundary fence with your neighbour. Both of you will end up paying 50% of the cost of any work required to the dividing fence.
A significant majority of older buildings have median boundaries. Generally, the inside half is owned by the relevant lot owner, and the outside half is common property.
Owners Corporations sometimes deem it a fairer way to deal with windows in particular if the owner who benefits from that window takes care of the maintenance entirely. You might liken this to a”service” which benefits that lot exclusively. So, when maintenance is required to a lot owners window, the Owners Corporation may advise the relevant owner to deal with the repairs or replacement themselves, on this basis. This is even in the event the outside boundary is common property. While this approach may not be entirely correct given the ownership, it can be a fairer method for owners, in what is often a limited and not necessarily practical style of plan.
The above may be some of the main reasons why the Owners Corporation has advised you need to resolve the issue yourself. Whatever it is, you should seek clarification from them as to why it is deemed your issue before you take the next step.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in Strata News #364.
Question: A number of lot owners are having problems with leaking windows within their apartments. Where are the common property boundaries? Is this an owners corporation or individual lot owner issue?
We live in a block of 4 units in Victoria.
A number of the other owners are having problems with leaking windows within their own apartments. Our units are side by side not over the top of each other.
Where are the common property boundaries? Is this an owners corporation or individual lot owner issue?
Answer: The way to identify ownership of the area in question is to refer to the Plan of Subdivision.
This is a common question, but one that requires several pieces of information before a definitive answer can be provided.
When we look at repairs and maintenance, the first question is always “who owns the property”? Once we know the owner, we can then determine who has the responsibility to repair and maintain that property or service.
The way to identify ownership of the area in question is to refer to the Plan of Subdivision.
A Plan of Subdivision is a document that is automatically created when a plan containing common property is registered at Land Use Victoria. The Plan sets out the boundaries between lots and common property but also indicates other components such as roads, easements and services that are relevant to that subdivision.
There are various types of plans, and they fall under different Acts. Most commonly they would be associated with the more recent Subdivision Act 1988 or the one prior, the Strata Titles Act 1967.
Plans registered under STA.1967 bear the prefix RP (Registered Plan) or SP (Strata Plan). Later Plans that are registered with the SA.1988 bear the prefix PS (Plan of Subdivision).
Each of these types of plans has their unique quirks and, in most cases, (especially with the later Plans) they will note where the boundaries are.
To obtain a Plan of Subdivision, the cost is minimal, usually less than $20. This is done with Landata Victoria and is obtained through their website in under 5 minutes.
Once you have the document, you should read through and understand the boundaries. These are typically on the first page under notations, or in the older Plans, they are often a couple of pages into the document.
Understanding boundaries is the first step to working out whether your issue is the Owners Corporation responsibility or yours as a lot owner.
If the Plan identifies the boundary for the windows as private property, then absolutely, each owner has a responsibility to repair and maintain their respective windows. Wording on the Plan might state that “all other boundaries are external face”. If the boundary is noted as “median” or possibly “interior face”, then the Owners Corporation may have some or all of the responsibility.
Boundaries as a topic, unfortunately, can’t be covered briefly, because there is a significant amount of information that you need to be across. But this should give you the base to determine what you need to answer your question.
Once you identify who owns the windows, you will then know who is responsible for the maintenance of that piece of property.
Bear in mind though, and not to complicate the matter, an Owners Corporation also has the ability to on charge the cost of works to you if the work is for substantial benefit of one or some of the lots. This work can be to private or common property. Refer to Sec 49 of the Owners Corporation Act 2006. Put simply; we call this the benefit principle.
Windows are a perfect example where the benefit principle is often applied. Applying this principle can be a fairer way to apportion cost(s) for significant works.
If your lot has windows that benefit only your lot, then it is fair that you repair and maintain those windows. Where it becomes tricky, is if the window or windows are identified as common property. That is where the benefit principal comes in and can be applied under Sec 49 of the Act.
All these things need to be considered, and from the information you have provided, it sounds like your situation is relatively simple.
It might be worth asking your Owners Corporation Manager to clarify who owns the windows and take it from there.
Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788
This post appears in Strata News #339.
Question: For some time we have had water ingress through the walls and windows of our investment unit. The body corporate say it is my cost to repair. Is this correct?
I own an investment property in Melbourne. I have for some time been getting water into the unit through the walls at ground level from the rear courtyard and also through the windows. The Owners Corporation say the water ingress is my problem because it’s not common property.
Could this be true?
Answer: A difficult one without access to the plan of subdivision.
In response to the question, it is very difficult to give a definitive answer without reviewing the plan of subdivision.
However, in order to assist, I provide the following.
If the courtyard is a private courtyard incorporated in his title and the lower boundary is a specified depth below the ground surface which would indicate the foundations are included in his title as well, then it is likely that it is the owner’s problem. Particularly if the boundary is defined by the fence of the courtyard it follows the external wall may be incorporated in the title also. This is not always the case though and it depends on what is drawn on the plan.
In the event, there is one unit over another it is usually determined the upper level is a plan within the ceiling and the lower boundary is within the floor. This means the roof and the foundations are common. This is easily justified in that all units above the foundations benefit from the support of these the same as all units benefit from the protection the roof above provides.
External walls can be defined in many ways such as internal surface, median (middle of the thickness of the wall) or external surface. It is further complicated by whether the wall is a boundary or wholly contained within a lot. That is the boundary follows the fence of an adjoining courtyard and therefore the external wall is private. This can also vary in that the wall may be defined as common with the area inside the unit being private along with the area that forms the courtyard also being private but the structure of the wall being incorporated in the common property. This would be shown on the plan but may not be easily identified if you are not familiar with plans of subdivision.
It is also an issue if the water is originating from above and this is the common roof or another apartment when it would follow that the Owners Corporation needs to stop the water ingress in the case it is a common roof issue or the owner of the apartment above if there is a problem in their apartment, such as a burst pipe in the wall or leaking shower recess or bath or even a washing machine leaking. There can be many causes.
I would suggest I have sufficiently complicated the situation but any good manager should be able to define the boundaries and put the owner’s mind at ease.
Stuart Mellington,
Select OwnersCorp Management
E: [email protected]
This post appears in Strata News #186.
Question: Who is responsible for repairing roof tiles on my single storey strata unit?
Who is responsible for repairing roof tiles on my property? Do roof tiles fall within the common property boundaries? I believe the cost of repair should fall to my strata / owners corporation.
My strata managers are saying it is my cost. I have previously seen other resident’s tiles fixed at a cost to the strata so would like some further information in regards to this issue.
What is the next step I should take to get these repairs underway?
Answer: The responsibility of maintaining and repairing roof tiles is that of the owner of those roof tiles.
You could assume that if other Lot owners have had their roofs fixed at the cost of the Owners Corporation then at some point it may have been determined the roofs are within Common Property boundaries and therefore repairs are paid for from the accumulated Owners Corporation funds.
A precedent may have been set in your Owners Corporation if this is the case, however, I would suggest you refer to the Plan of Subdivision to identify the Lot boundary before proceeding.
If you would like to send in a copy of your plan I’m happy to review it on your behalf to advise you where the Lot boundary lies and who is the responsible party.
The Knight
https://theknight.com.au
T: 03 9509 3144
E: [email protected]
This post appears in Strata News #158.
Question: My concrete balustrade on my balcony is cracking severely and I’m not sure who is responsible for the repair
I have a query in regards to balcony concrete cancer and maintaining concrete balustrade on the balcony.
My concrete balustrade on the balcony is cracking severely and chipped concrete is starting to fall out both on the outer side and inner side of the balustrade.
I have contacted the body corporate in regards to the cracking issue. My body corporate manager informed me that “the boundaries within the plan of subdivision for this property are interior face, which means the lot owner is responsible for the inward facing part of their lot”.
Does this statement apply to the balustrade of the balcony which serves as a safety feature? I feel it is not logical to have 2 different tradespeople to come and work on the same section of the concrete balustrade to repair the balcony concrete cancer.
Answer: This may be one of those rare cases where a surveyor or concrete cancer expert will need to be called in to determine responsibility.
Plans of subdivision are quite strict. The inward facing part of the balcony is considered the Lot Owners responsibility. However, if the internal wall of a concrete parapet has visual signs of concrete (‘spalling’) cancer, then there’s a very good chance that it may be on the exterior of the wall as well.
The exterior of the parapet is the responsibility of the Owners Corporation. This may be one of those rare cases where a surveyor or concrete cancer expert will need to be called in to determine responsibility. Therefore I am of the opinion that the costs would need to be shared by the lot owner and Owners Corporation.
Concrete Cancer
Older buildings can get concrete cancer. The reo can be damaged by rust which affects the capacity of the balcony. A good example of this is a building we inspected were there was cracking of tiles along the support joint external cantilever balcony. Further investigation of this area by breaking out of the broken concrete revealed the following issues:
The depth of cover (distance between the top of the concrete and the top of the first reinforcing steel bar) was only 10mm which is less than the required 40mm cover for this type of marine environment as determined by AS3600 and AS3610.
The upper reinforcing steel bar (designed as distribution steel to prevent shrinkage cracking in the concrete after construction) shows signs of rust such that more than 50% of steel has already degraded.
The second layer of steel bar (running perpendicular to the door frame) which is the main design reinforcing steel also showed significant signs of rust.
The concrete around the bars was easily broken out, demonstrating the degradation of the reinforced concrete slab element. As illustrated by the simplified diagram, concrete cancer at the base of the cantilever element is extremely serious and if it is not repaired, the element will fail.
In this case, concrete cancer has spread to other parts of the balustrade and this would mean that the Owners Corporation is just as responsible for it as the individual lot owner is.
Concrete cancer is a common problem with strata property, though there are methods to combat it and repair work should commence ASAP. It is important that both the lot owners and Owners Corporation take proactive steps to avoid having to do expensive repairs, such as using high-quality paint, early reporting and regular inspections.
I highly recommend a 10 year Maintenance Plan be created by a suitably qualified inspector and utilised so that “preventative” maintenance/repairs can be undertaken in a timely manner thus avoiding costly repair work after concrete cancer has taken hold. Currently, 10 year Maintenance Plans are only required for “prescribed schemes”.
A prescribed Owners Corporation is a development with more than 100 lots or total annual fees exceeding $200,000. Currently (with the exception of WA) Victoria is the only mainland state that doesn’t require a maintenance fund for all schemes. This has led to more and more committees not putting away funds for further capital works maintenance. Consequently, as the buildings age, more major repair work will be needed as regular preventative maintenance goes unchecked.
This post on appears in Strata News #122.
Peter Berney
National Business Development Manager
Solutions in Engineering
P: 1300 136 036
E: [email protected]
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 about common property boundaries or something to add to the article? Leave a comment below.
Read next:
- VIC: Q&A Expenses Recovery and Benefits of Common Property
- Why are Strata Managers so difficult to get along with?
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I live in a townhouse unit which 3 unit attached together and common wall between my unit and next door unit moved and got crack on wall and gyprock hanging and looks it is going to fall.Strata says I have to fix the gyprock on the wall .But manager of strata used to say any thing on common wall covered by strata except the painting .Who must fix falling gyprock on common wall?
We have replied to this question in the article above.
Hi, We own a fully detached unit on a strata title in Victoria. There is a block of 6 apartments on the title along with our unit. The roofs (tiles etc) are defined as being Common Property (I assume due to following the same standard as the apartment block).
We would like to have our roof repaired as it’s leaking and has cracked tiles. We understand this is the responsibility of the Owners Corp. The issue we have is that we believe there is a clause that if the repair/works benefit a single lot owner then that lot owner becomes responsible (or something along those lines) meaning we’d have to pay for any roof repairs even though it’s classified as common property.
Can you confirm if this is the case?
And if so, we pay ~30% more in OC fees than any other lot owner due to the size of our lot. If the roof is no longer included as really being “common property” (as we would pay any maintenance/repair costs), is there an avenue we can go down to reduce our lot liability to reduce our fees?
Thanks,
Cam.
Hi Cam,
We have responded to your question in the above article.
Hope this helps.
Regards
Joel Chamberlain
Thanks Joel.
I’m still a little confused though.
Are you able to confirm if there is a section in the OC Act which allows works that benefit a single lot owner to be charged to that lot owner even if the area being worked on is defined as common property?
Cheers,
Cam
Hi Cam
I believe that is the section of the Act Joel quoted:
OWNERS CORPORATIONS ACT 2006 – SECT 49
Cost of repairs, maintenance or other works
Hi Cam
If you want to go down this channel, you may want to get some legal advice re changing lot liability (probably needs a ballot, change of plan of subdivision – onerous etc). Best cause of action is probably to have a legal binding clause re common property (roof) – s/he who benefits, pays more (Section 49 of the Act). It can be costly getting a lawyer to draft it, but worth it in the long run in terms of transparency/fairness.
If you want to do more research, have a look at VCAT’s recent decisions (in their website). The clause in the ACT is vague. But VCAT have had a lot of cases regarding this.
Ask the OC Manager to organise a lawyer to attend the next AGM.
Do you want the OC to pay for maintenance of roof irrespective of who benefits or vice versa?
In Victoria, you can go after the builder (but I believe the time-frame is 7 years)
Totally depends on who did the works and when.
Because of safety concerns, I will fix first (litigation risk, further damage), whilst waiting for the matter to be brought up in the courts, which sadly I think these matters will end up.
You can speak to the surveyor who drew up the plan to advise whose responsibility it is. If surveyor is no longer alive, you can ask for any other surveyor to clarify and if that fails, I would go to your Tribunal to finalise the matter once and for all. It would probably be the interest of all lots to have this matter decided by the Tribunal.
LVC
Melbourne.
We are a strata plan of three units, town houses in NSW.. I finally received the Capital Works Plan and noticed that a fence bordering the private open space at the front of unit 3 with a public lane is included in the capital works plan. My understanding is that maintenance of this fence is not OC responsibility if I understand the article correctly. If there is no common space between the property and fence, it belongs to the unit owner. Our Strata Manager and I have arguments about the fact that the capital works plan is incorrect. The strata manager brought cubic space into the conversation which relates to pipes etc. The plan of the surveyor does not really give the answer either, except that it outlines common property and garden property of the owner. Who can help me putting this in the correct perspective please.
I have a property which is one of three units with a shared driveway with two other units. The driveway is the only shared land, with all services for the back two units running under the driveway. Our services (to the original property prior to subdivision) run on our property.
We have planning permission to have our own driveway, so we will no longer Have any need for the shared driveway. My question is, when we no longer share any property with the other units, Can we remove ourselves from the body corporate?
If the other 2 units agree, then yes you can. Though I think this would need to go to the legal channel for finalisation.
Hi,
I have a quick query regarding what I see as construction faults to multiple apartment within our 2 storey, 13 unit complex.
I had flagged with the body corporate manager previously that the front door step elevation was not to safety standards (in the common area as noted by my building inspector), have a very wide and deep storm water drain on my balcony that is a safety hazard and an incorrectly installed aircondlting unit that is apparently collecting and pooling water into the concrete below.
The body corporate has classed the latter two as my issue issue as an owner, but surely they are building/ construction based issues? I know for a fact that at least one neighbour has the same air-conditioning unit issue and two others with storm water or balcony leak issues with in the building.
Any suggestions?
Thanks, Erin
My brother(80 years old) has a electrical power problem. In the group of units the mains supply come in at the north end of the block of 10 units. From there a sub-main runs internally down to a fuse board in his lot at the southern end of the block. The circuit breaker intermittently trips especially after rain. An electrician has pulled the fuses and tested the wiring in his lot and found no fault. The electrician has run a temporary service from his circuit breaker at the north end of the building to his fuse box. My brother tells me that repairs including a window replacement was carried out on a lot in the middle of the block.
The management wants my brother to pay for investigating the source of the problem.
My question is who is responsible for this electrical sub-main.
Energy Safe Victoria holds the Body Corporate to be an electrical supplier with all the responsibilities of an electrical supplier.
Hi,
We have a burst water pipe running from our hot water system to our apartment. The pipes runs through the concrete floor (between the 2nd and 3rd floors) and the leak is in the floor. Is this a body corp responsibility? Thanks
Damon
Hi Damon
This article should assist: VIC: Q&A Water Ingress – The Body Corporate say it’s my problem to fix
Thanks
Did someone put a complaint in, Why has the owners Corp now asked you to remove it? If your on the committee hold a meeting to pass it, how many other units have the same, this inconsistency if is too common when it comes to management of properties. Lastly think about replace your management for not doing their job correctly.
Phil
Hi Phil, it is difficult to find a good strata manager. We changed last year. After the honeymoon period was over the service ebbed away. The portfolio manager left the company and the successor is inexperienced and snappy in her answers. I asked the owner to pass our portfolio on to another staff. Waiting for an answer.
If you have a contract that doesn’t expire until next year, and still no change of portfolio manager, you and the Committee will need to take a more active role until contract expires.
ie, get your own quotes, get them approved by Committee and ensure that you get the gutters cleaned etc.
If you are wanting advice, seek the answers from a different body corp. Knowing that you are looking for a change, they will help if they want your business. This approach will also allow you to try a number of body corp companies and you can find which one helps you the best.
We are in a block of 4 of a self managed OC in Victoria, we have 2 garden beds, on common property that lies between our property and a driveway that provides access to garages for 3 units, our interpretation of rule 4.2(1) where we are responsible for the area in and around our lot, …. this question has been moved and replied to in this post: VIC: Q&A Problems when a Resident is Appointed to Maintain Gardens
Owners Corp gave me written permission to my email asking them if i could put an air con unit on my outside wall,
They gave written permission without asking the commitee members fast forward 2 and a half years the owners corp are telling me to take it down because i never got permission.I am on the commitee another commitee member wrote back saying to leave it as he can see its the managements fault for giving me permission. But the management insist that i misunderstood their letter and what they wrote and i must take it down and ask permission still.
Many Thanks
If you had the proof, it should have been the OC costs to pay (as OC manager acts on the Committee behalf)
If the OC manager did not seek approval then it is up to the Committee to ask the OC manager to pay.
I live in a block of three apartments with no body corporate only shared water bill and insurance, I’m at street front on the ground floor, another lady above me, and unit three is at the rear, and they infect have another basement level in the same footprint as the unit. All the services water, gas and power run along the East side of the building including storm water and sewer etc.
All the land has been split and allocated to each unit from day one when it was built. I own the front courtyard (on the street), the lady above owns the West side courtyard and the unit at the back owns the majority of the land which wraps around from the east side/street, all along the building to the rear of the block and around the North side and again to the west side.
I share with the lady above the driveway/carport on the west side, and unit three has the East side carport. About 8 months ago unit three has installed a garage door in the carport for privacy, and refuse to give us the code in order to access our services such meter boards, hot water system, gas, windows and so forth without calling them to let us in. Now Ive had nothing but problems in my unit, its crumbling and now we are forced to do some extensive works like replace all the plumbing in and under the slab and walls which is a nightmare. I’ve had nothing but problems connecting power and gas services because there’s no access to the meter boxes, and unit three insists on calling the power company on our behalf to give them the code to the garage door etc. which in the meantime I receive letters from the power and gas companies that they have been there to take the reading but couldn’t access. I’ve had plumbers, engineers, electricians, builders all wait outside for more then an hour at a time so they will open the door on multiple occassions…
Unit 3 sewer and stormwater pipes run under the footpath from their unit to the rear of the block, and unit1 and 2’s run to the front of the block under the footpath in their property.
So a couple of questions here:
1. Is unit 3 allowed to lock away the area that has ALL the services that belong to the whole block from accessing them?
2. We are on a strata title so who owns what?? Do I own the wall from the outside of my unit? Can I restrict unit three from leaning piles of timber logs on my wall right on the cold and hot water pipes? am I liable to my sewer and storm water plumbing that run in the ground in unit 3 property?
I look forward to some advise.
Thanks,
Shay
See the case seiwa pty Ltd V owners corp
Hi
We are in a development with 60 units in VIC.
The letterboxes (accessible from the street) have been broken into in the last 6 months. The body corporate committee has decided to relocate the letterboxes to a completely different location within the development without consulting any of the owners.
New key to the letterbox together with a letter stating that new letterboxes have been made and they are to be installed at a new location in the next 5 days were dropped into all the units 5 days before the installation. The owners were informed of new letterboxes to be installed prior but this was the first time that the owners were informed of the decision of relocating the letterboxes.
My question is that does the body corporate committee has the power to make such decision of relocating the letterboxes without consulting any of the owners.
PS. Australia Post did approve the new location of the letterboxes but it is impossible for delivery/courier personnel to locate the letterboxes if they need to drop off delivery notice.
Thank you and I look forward to hearing from you.
Hello David,
I am interested in the outcome of your query. regards Sara
We are living in a loop style street. Each house has its own title. At the top or head of the street is an odd shaped parcel of land, due to gum trees the grass is scraggly and never mowed the primary use for the land is people living opposite park their cars on it. My question is. A resident is asking for monies to be paid to a body corporate for this land. Is this fair and reasonable or arecthey just pocketing a bit of money for themselves
Thank you for any responce
Phil
Hi Phil
We have received the following reply back from Daniel Hunt, Ace Body Corporate Management:
It is possible that there may be a genuine owners corporation in existence but it may not have been effectively managed or communicated to all owners in the past.
The easiest way to solve this situation is to ask the resident that is seeking money for a copy of the applicable plan of subdivision impacting this land.
The plan of subdivision will outline the applicable lot entitlement and lot liability of all members involved in the owners corporation.
If this person can’t produce this information, then ask to be provided with any documentation that establishes your financial commitments to this piece of land.
If this can’t be obtained and there are no official council rulings, then likely you do not have to comply.
You may like to check this information over with a strata lawyer or a conveyancer if problems persist.
Hi We live in a two unit lot in NSW we have an access road that serves us and our neighbours which there are two of, with a total of 4 all up, our boundary goes to the edge of the road,the access road has been built on Councils road reserve .
The road is in need of repair as with the retaining wall .
The Council insists that the road is for the access of the 4 residents and therefore is there responsibility to maintain the road , we where never informed of this when we bought our unit , can you confirm that we have to pay for the upkeep of the road and retaining wall .
I recently purchased an apartment with an enclosed rear yard in Victoria. It was purchased knowing full well that yard was not on title, however the fact that yard was not on title was not known to the BC and other owners until the sale eventuated.
The Fence must be 30 years old at least and one owner has mentioned that the fence has been present since they purchased the property in the early 80’s
There has been infrequent, although consistent mention or pulling the fence down to return it to common ownership. Naturally I would like to keep the fence from a privacy perspective and also look to enter into a “Pepper corn” Lease for the use of the space.
The fence is in need of replacement which I would be happy to pay for as part of the arrangement and do landscaping etc etc to improve the quality of the yard.
Any suggestions on how to go about this? The fact that the fence has stood for so long does that give me any entitlement as the owner? Is this a legal matter where I should seek advice and if so any recommendations of solicitors in the CBD area or do I plead my case at the Annual BC meeting?
Thanks in advance for your responses.
The owner of a workshop has unregistered cars ready for wrecking parked in my parking space I have asked him nicely to have them remove ,his answer was ” I will within 6 months they will be removed ” I need to rent my unit and with these cars parked in my space it is impossible, strata manager told me it’s not up to him to send him a letter. What can I do to have these cars removed immediately I am loosing rent money?
Hi
I own a townhouse which l rent situated between two house owners. My current tenant is constantly bringing mangled cars and parking them outside the garage because he fills the inside of the garage with motorbikes and other cars. The cars that he drives and that of his son are mainly parked out on the street. The two other owners are calling me to have him remove these cars etc elsewhere. I went and saw the situation and the cars outside the garage are not obstructing the common area but they are fed up with the coming and going of these cars and late night work on the cars or bikes. I have approached my property agent who said nothing can be done as they are neatly parked etc. Can you please give me some advice on the situation?
Hi I am wanting clarification on the following matter I’m having regarding my tenant. I own a townhouse that is situated between two owner occupiers. My tenant is currently using my garage and the outside of the garage to park multiple cars and motorbikes on the common area. He uses the street to park his two cars and one other that belongs to his son. He oftens leaves these cars on both the street and my property for any length of time. The current home owners are complaining to me regarding this on going issue and in the mean time l have contacted my property manager who has informed me that the cars outside my garage is neat and tidy and nothing can be done.
Hello, this is quite an obscure comment, but wondering if anyone can give some advice.
I’ve found this article upon searching victorian strata plans and common property.
I’m a graduate architect with a focus on developing new housing solution for Melbourne’s Middle Suburbs to support plot agglomerations and collective development.
I’m currently in the process of trying to get a grasp of how ownership could work for a collective living model that we are proposing.
The design scheme has recently been recipient of an international design:
award https://www.domain.com.au/news/we-are-still-in-the-dark-ages-melbourne-twins-bold-new-proposal-for-middlering-suburbs-20171124-gzq05s/
And we are now talking with interested developers and residents.
My question relates to the fact that in our scheme, the ground floor is conceived as a kind of ‘common’ space that is collectively maintained.
This could be a shared garden or combine common uses such as laundries, parking, storage, workshops, services etc.
Amongst this common space, residents also have a private stair and entry space to access their private home which is on the 1st and 2nd level.
I was wondering, how ownership might be resolved to enable a situation in which the ground floor is common property,
but the floor space of the dwelling over the 2 upper levels and entry on ground floor can be privately owned.
Hope that this is a clear enough explanation to understand my query. Anyone have any insights?
This is not allowed under fire safety regulations, call Metropolitan Fire Brigade (MFB) if in doubt. Occupiers, owners and visitors may need to escape upstairs, including accessing the roof in a fire or emergency if lower storey on fire and they can’t escape via exits on ground level.
Under current Victorian building laws, no building surveyor will issue a building permit for sealing off common propert stairs unless they are not aware of the fire safety compliance (hope not).
My son owns a single storey villa in a 3 unit complex. While the Registered Plan indicates that the lower boundary of each unit is that part of the site which is within the vertical or near vertical boundaries of the respective units (presumably that means ground level) and the upper boundary is 8 metres above its lower boundary (which would no doubt include the ceiling space and roof), there is no reference to the boundary between the interior of the unit and the external face of the building interfacing with common property (unpainted face brick). Does this mean that the unit owner is responsible for all maintenance of the building structure within the lot including external repairs and also building insurance? If so, does the individual unit owner require approval from the Owners Corporation to make any changes to the external façade which don’t encroach on common property?
Hi Ray
We have received the following reply back from Tony Overell, The Knight:
My response to the question is partly address a previous Q&A post – VIC: Q&A Maintenance of Common Property – Decorative Paintwork
In addition I would add:
From your descriptions of the Plan, I would say the boundary of the Lot would fall within the exterior walls of the unit, i.e. Median – the inside half of the wall is the owners responsibility and the outside half of the wall is Common Property. However I would need to review the plan for confirmation.
As the outside of the wall is Common Property then the Owners Corporation is responsible to repair and maintain those areas. Any changes to the external areas of this would require Owners Corporation approval.
The roof and ceiling space however, as you correctly pointed out, would be the Lot owners responsibility up to the 8 metre limit.
We live in a block of 10 units and I am aware that there are Model rules and have been told if we wish to bring in new rules we need to go to engage a solicitor etc .
The rules would like to implement in are common courtesy:
a) All pets must be on a leash when in the common areas and owners responsible in cleaning up any mess.
b) Garage doors must be kept closed and rubbish bins not left in common area unless it is delivery pick up days.
c) Washing to be hung on clothes lines provided and not on privacy screens facing Common Property.
This article was replied to separately as a stand alone Q&A article. The full response can be seen here: VIC: Q&A Reasonable Implementation of By-Laws
Hi,
We recently purchased and moved into a unit in a block of 13 single level units (in Victoria). All lots are attached to each other. We are keen to explore the use of the roof space either for storage or office/bedroom. It’s a small dwelling with a reasonable back yard. There doesn’t seem to be any mention of height limitations on the Title Plan/Plan of Subdivision provided. It only states “Depth Limitation Does Not Apply” Followed by “Location of Boundaries Defined by Building. Exterior Face: All boundaries defined by the external walls of a building. Median: All other boundaries.”
The Owners Corp levy includes maintenance services to such things as the gutters and downpipes. We are referred to the Model Rules for the other restrictions/rules.
My question is, are we within our rights to pursue developing the space below (say for a cellar) and the attic space, with the understanding that the area in and above the roof is owned by us? I’ve looked into the council site and not sure where I would go to get further clarity on boundaries.
Any insight is much appreciated.
Thanks
We live in an apartment building with a Certificate of Plan number.PCS 12777041 – it is not a strata title plan. An internal to the apartment stair rail has detached – is this common property or our responsibility to repair?
Hi Anney
We have received the following reply back from Stuart Mellington, Select OwnersCorp Management:
If the “internal stair” is in a common hallway or shared area of the complex it would be a common (shared) feature and therefore the responsibility for the maintenance would be shared.
If it is inside an apartment and therefore limited to the use of the occupants of that apartment and their guests it would be a private item and the responsibility of that owner.
There are 36 units. Letterboxes for the units are erected on Common Property. They are selected, purchased and erected by the Owners Corporation.
Can a unit owner remove and replace a letterbox with his own choice despite the ruling of the Owners Corporation that all letterboxes are the responsibility of the Owners Corporation, including replacement of damaged ones?
Hi Melissa
Thanks for your question. Do you mind confirming the units are located in VIC?
Yes they are in Victoria
Hi Melissa
We have received the following reply back from Stuart Mellington, Select OwnersCorp Management:
I think the enquirer has answered their own question when they stated these are on common property and the Owners Corporation installed and maintains these items. It follows from this that a lot owner is not entitled to interfere with or replace the one allocated for their use without the consent of the Owners Corporation who collectively own and maintain this facility.
Your owners corporation manager should be able to advise you if the driveway is common property. If it is common property the model rules are quite clear :
‘3.2 Vehicles and parking on common property
An owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle or other vehicle or permit a motor vehicle or other vehicle—
(a) to be parked or left in parking spaces situated on common property and allocated for other lots; or
(b) on the common property so as to obstruct a driveway, pathway, entrance or exit to a lot; or
(c) in any place other than a parking area situated on common property specified for that purpose by the owners corporation.’
Many Owners Corporation Managers will not talk to tenants so you should ask your rental manager or owner to ask the Owners Corporation for clarification of the common property and if approval has been given for the persons to use this area of driveway.
Thanks for your comments, Brian.
Hi. After purchasing a unit several years ago, we have discovered that the terrace above was not sealed properly and the resulting water damage has caused extensive damage to our unit which is located below. The OC’s Insurance Company has advised the Policy does not cover balconies (or terraces). However, from my reading of the Plan of Subdivision, the terrace above is effectively the roof of our apartment and forms the Lot’s border which on the Plan only goes to the ‘underside of the ceiling’ and the ‘Interior Face’. I assume that this means the terrace is, like the roof of the building, regarded as Common Property, but would be interested in your views.
Also, for strata insurance purposes, you mention that, regardless whether the individual or the owners corporation own the walls, this will generally all be covered under the one strata insurance policy. In this case, it shouldn’t matter whether it is common property or not, but again would be interested in your views. (The insurance company’s initial comment was that the OC’s policy doesn’t cover terraces or balconies, although these are not specifically excluded in the Policy and are part of the Plan of Subdivision. .
Hi Glenn
You may be interested in reading a recent article dealing with a similar issue: VIC: Q&A Repairing Roof Tiles – Who is responsible for the cost?
We have received the following reply back from Daniel Hunt, Ace Body Corporate Management:
The article is intended to be provided as general advice and while we have attempted to cover as many commonalities as possible, specific questions like this will often need to seek legal clarification.
Interpreting the Plan of Subdivision can be incredibly difficult, but an expert strata lawyer should be able to lead you in the right direction and then determine if you have a case with the insurance policy.
Hi,
We are tennants renting a unit in a block of 4 units. Each unit has its own lock up garage. The driveway is a narrow straight route so the units and garages are in a st line. We are renting the third unit.
Our neighbors in unit four or the last unit own 2 cars. Even though they have a lock up garage they often park both the cars outside their unit. This makes it very hard for us as there is no space to maneuver our four wheel drive and park in our garage. We have tried speaking to them and requesting if they could kindly park one of the cars inside but they want their convenience and have suggested if we cannot maneuver we can park outside on the streets.
They seem to think as both the cars are in front of their unit they are well within their rights to park however they wish?
Is this correct? I thought the driveway was common shared space between four units.but they seem to think any space in front of their unit is theirs and we should figure out some other ways to park? Please advise where we stand in our rights and how can we explain to them if they are wrong. Having a conversation is not helping unfortunately.
Thanks
Hi Rupal
We have been supplied with this response from Stuart Mellington, Select OwnersCorp Management:
Perfect timing for this one as a VCAT determination has just been made in regards this matter and I have included this below for your reference. It is noted that there existed special circumstances for the parking on common property but not for extended periods.
Access this link for a copy of the Model Rules and I draw your attention to Rule 3.1 (1) which refers to the interference of the use of the common property such that it obstructs the use of others.
More specifically 3.2 is the Rule that deals with the parking of vehicles. This clearly deals with this matter and prohibits the inappropriate parking on common property.
The VCAT Ruling provides greater explanation in the determination as it refers to parking on common property even under special circumstances.
In situations such as these the manager should have been engaged to issue the appropriate breach notice prior to the commencement of proceedings in VCAT or the manager is deficient in their duties and this may require review of their appointment. Should the property in question not have a manger then the application to VCAT can be applied for directly by the people that are effected by the inappropriate behaviour. This independent action of a resident can also be initiated by an individual even if there is a manager should it be necessary to do so.
Morris v Lui (Owners Corporations) [2017] VCAT 1103 (28 July 2017)
VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
OWNERS CORPORATIONS LIST VCAT REFERENCE: OC37/2017
CATCHWORDS: Parking or leaving vehicle on common property – discretion to make a qualified order following a breach of rules – Owners Corporations Act 2006 s165.
APPLICANT: Elizabeth Morris
FIRST RESPONDENT: James Lui
SECOND RESPONDENT: Paul Bormann
THIRD RESPONDENT: Lara Bormann
WHERE HELD: 55 King Street, Melbourne
BEFORE: Senior Member A. Vassie
HEARING TYPE: Hearing
DATE OF HEARING: 21 June 2017
DATE OF ORDER: 21 June 2017
DATE OF REASONS: 28 July 2017
CITATION: Morris v Lui (Owners Corporations) [2017] VCAT 1103
Orders
1. The second and third respondents must not breach rule 3.2 of the model rules of the owners corporation by parking or leaving a motor vehicle in any place situated on common property, and in particular must not park or leave a motor vehicle on the common property which is the driveway in front of the garage of unit 2, except in the case of emergency and except that they may stand a motor vehicle on the driveway in front of unit 2 for no more than 6 minutes at a time for the purpose of assisting their child to board or leave the motor vehicle.
2. The second and third respondents must pay to the applicant $61.50 by way of reimbursement of the application fee she paid.
Appearances:
For the Applicant: In person
For the First Respondent: No appearance
For the Second and Third Respondents: Mr P. Borrmann
Reasons For Decision
1. The applicant Elizabeth Morris owns unit 3 on plan of subdivision no. PS327793M. The land is at 8 Boondara Road, Mont Albert North. The plan of subdivision describes common property. The first respondent James Lui is the owner of unit 2. The second and third respondents, Paul Bormann and Lara Bormann, are occupiers of unit 2 as tenants of Mr Lui.
2. In this proceeding Ms Morris asked for an order that the Bormanns not park or leave a motor car on common property. Originally she had named Mr Lui alone as a respondent. By an order made on 11 May 2017 the Tribunal joined the Bormanns as respondents.
3. I heard the proceeding on 21 June 2017. Ms Morris and Mr Bormann attended the hearing and gave evidence. At the end of the hearing I made an order that the Bormanns must not park or leave a vehicle on common property except that they may stand a motor vehicle on a driveway for no more than 6 minutes at a time for the purpose of assisting their child to board or leave the vehicle. I gave oral reasons for the decision.
4. By an email dated 3 July 2017 Ms Morris requested written reasons for decision. At the conclusion of the hearing I had handed back to the parties various documents, including photographs, that they had handed to me during the hearing. So I have to give these reasons without being able to refer to the exact contents of those documents.
5. The common property includes a driveway, which has a reverse L-shape, there being a point at which it turns at right angles, then runs past an entrance to Ms Morris’s garage then past her front door. It ends at the entrance to the garage which is part of unit 3, occupied by the Bormanns.
6. Ms Morris complains that the Bormanns park one of their cars on the driveway, outside the entrance to their garage, with the result that she is impeded when trying to drive her car out of her garage. She complains about the noise created when the door of the Bormanns’ car are slammed, several times a day, and the noise which the Bormanns’ child makes, screaming when taken into or from the car.
7. Both parties have medical issues. Ms Morris has had spinal surgery and cannot turn or twist her heard painlessly when driving into or out of her garage. Her car has a disabled person’s parking permit attached to it. The Bormanns’ 9 month old child suffers from a hip disorder, which means that helping the child into and out of a car is an ordeal for the child as well as for them. They have a disabled person’s parking permit too.
8. There was no dispute that the Bormanns do leave or stand one of their cars on the common property driveway outside their garage. They say that that is a necessity. Their garage is occupied by a “heritage vehicle”, according to Mr Bormann. At all events, according to Mr Bormann, they need to assist their child by helping him in or out of their car, wherever it is left or it stands.
9. Section 137(a) of the Owners Corporation Act 2006 (“the Act”) provides that a lot occupier must comply with the Act and with the rules of the owners corporation. The model rules set out in a schedule to the Owners Corporation Regulations 2007 are the rules of the owners corporation in this proceeding.
10. Model rule 3.2(e) provides that an owner or occupier of a lot must not, unless in the case of an emergency, park or leave a motor vehicle on common property in any place other than a parking area specified for that purpose by the owners corporation. Mr Bormann did not contend that the driveway in front of his garage door was specified as a parking area.
11. The hearing before me on 21 June 2017 was not the first Tribunal hearing that involved the Bormanns’ conduct in leaving the car where they do on the driveway. There had been a hearing on 28 October 2016 in the Residential Tenancies List in a proceeding on which Mr Lui had been the applicant and the Bormanns the respondents. Ms Morris had not been a party, but had attended the hearing and had participated in it in some way. At that hearing the presiding Member made an order which recorded an agreement that the Bormanns would leave or stand their car in the driveway for no more than ten minutes at a time. Before me, Mr Bormann argued that because of that order Ms Morris was debarred from making her claim in this proceeding for a different order. I rejected the argument. On a proper construction of the order made in that earlier proceeding, the agreement set out in the order was between Mr Lui and the Bormanns only; Ms Morris was not a party to the agreement. She was entitled to begin and pursue this second proceeding.
12. Clearly the Bormanns are in breach of model rule 3.2(c) every time they leave or stand a car on the driveway. Under s165 of the Act, the Tribunal has the power to require a person to comply with the rules of the owners corporations but, more generally, it has the power to make any order it considers fair. The discretion to make an order following a breach of a rule includes a discretion not to make any order at all, or to make an order with qualifications, if the Tribunal considers it fair to make such an order.
13. An aerial photograph of the driveway, which Mr Bormann showed me, persuaded me that Ms Morris, hampered as she is with her spinal injury, is inconvenienced whenever the Bormanns leave or stand their car where they do on the driveway and she drives her car out of her own garage. I was less impressed with her evidence about noise. I thought that her evidence about it was exaggerated. The breach of the rule was not so trivial or harmless that I should properly have exercised my discretion to make no order at all. On the other hand the need for the car to be left or stood on the driveway so that their disabled child could be assisted in or out of the car meant, in my view, that it would not be fair to make an order that they should not leave or stand the car there at all.
14. Accordingly I exercised the discretion in the way that appeared in the order I made, requiring the Bormanns not to breach rule 3.2 of the model rules but excepting that they may stand or leave a car on the driveway in front of their unit for no more than six minutes at a time. I accepted Mr Bormann’s evidence that he and his wife needed at least six minutes each time to do what was necessary to assist their child to board or to leave the car and then from or into their home.
15. Ms Morris had another complaint. She did not mention it in her written application but I allowed her to raise it for my determination, Mr Bormann not having objected to my doing so. The complaint was about litter in the area near the front door of unit 2. She produced photographs of the litter. There are only limited circumstances in which the Act or the model rules regulate what a lot owner or occupier may or may not do within the lot. The littered area was within unit 2. One of the limited circumstances is that model rule 1 provides that a lot owner or occupier must not use the lot so as to cause a hazard to the health, safety or security of an owner, occupier or use of another lot. There was no evidence that the litter created such a hazard. None of the other limited circumstances existed. The littering did not constitute a breach of the Act or of the rules.
16. Under s115C(1)(c) and (2) of the Victorian Civil and Administrative Tribunal Act 1998 there is a presumption that an applicant who has substantially succeeded against a party in a proceeding is entitled to an order under s115B that that other party reimburse the applicant the whole of any fees and paid by the applicant. Ms Morris paid a fee of $61.50 upon filing her application. There was no feature of this case which tended to suggest that the presumption did not apply. Ms Morris had substantially succeeded in the proceeding; I had made an order, albeit with a qualification, following a breach of the rules which she had proved. So I ordered the Bormanns to reimburse her for the filing fee.
A. Vassie
Senior Member
28 July 2017
Hello, do the external walls to a balcony on a strata property belong to the owner? Or Owner’s Corp? When there is something that needs attention?
Hi Sally
Thanks for your question. You may be interested in reading our recent article: VIC: Q&A Balcony Concrete Cancer – Who Fixes What?
If you still have questions, please let us know.
We received the following email over the weekend:
I live in an over 55’s complex in Victoria. We have villas within the complex and all have their own title deed. We have recently been advised that we are responsible for various section of the buildings on the outside. The verandahs on the back of the villas were built at the same time as the villas but these, we are led to believe, are our responsibility ie upkeep, painting etc.
Some of our villas have bay windows and small verandahs and some have porches at the front of the building. These too, we are told, are our responsibility. This gets a bit confusing when it comes to who pays for what. What I would really like to know is – is this information we have been given correct? I was always under the impression that the outside of the building is owners’ corporation and the inside is the owners responsibility.
If we are responsible for what is actually on the outside of the villa, it is going to get a bit tricky when it comes to insurance.
We have received a reply back from Ace Body Corporate Management:
Thank you for the question.
Firstly, it is always recommended that you reference the plan of subdivision for your property as this will explicitly outline what belongs to the individual and what belongs to the Owners Corporation. The Plan of Subdivision can often be difficult to interpret so we always recommend you seek a strata specific lawyer for guidance on who is responsible for payment. (If you would like, I can recommend some strata specific legal companies in Victoria).
It is important you also carefully read your retirement villages contract as there may be different types of contracts offered to residents in the same retirement village. For example, two residents living next door to each other in similar accommodation, who entered the village at different times, might have different contracts with different rights and responsibilities.
For strata specific insurance purposes, regardless if the individual or the owners corporation own the walls, this will generally all be covered under the one strata insurance policy. It is recommended that you read over your strata insurance policy and make sure this is the case. Please contact strata insurance experts for more information such as Whitbread Insurance Brokers (1300 424 627) or CHU (1800 022 444).