VIC: Q&A Who’s Responsible? A Guide to Common Property

The information in this article will assist when reading strata plans. It discusses who’s responsible, and provides a guide to common property boundaries when it comes to VIC apartment repairs and common property defects.

Table of Contents:

• QUESTION: My intercom is broken but I’m not sure if the fault is with my handset or the entire unit. Who pays and how do I get this fixed?
• QUESTION: If the OC owns the external face of the buildings, how can they make lot owners pay for the cost of painting the building?
• QUESTION: Is it the responsibility of each unit owner to make sure the internal wiring and switchboard are safe and serviceable?
• QUESTION: We have two issues with noise due to the poor design of pipes and gutters around our unit. Is the owners corporation responsible for fixing these issues?
• QUESTION: My strata plan seems to suggest the roof space is within the upper boundary of my lot. If so, can I use this space as part of my lot?
• QUESTION: If our old building doesn’t comply with current building requirements, is the owners corporation required to carry out repairs?
• QUESTION: Is the Owners Corporation responsible for emergency lighting fitting maintenance on my unit lot?
• QUESTION: Who is liable for the repair of the subfloor of the ground floor unit? The unit owner or owners corporate?
• QUESTION: Is the waterproof membrane on my balcony my private property and therefore my responsibility to repair, or common property and the responsibility of the Owners Corporation?
• QUESTION: The townhouses in our strata appear not to have waterproofing in the upstairs bathrooms. Who is responsible to fix this?
• QUESTION: Are boundary fences on a property considered to be ‘common property’ or, if they are on only one lot owner’s property, is the lot owner responsible for the boundary fence?
• QUESTION: Our OC Committee wants to arrange external window cleaning for our building of levels 1 and 2. This common property maintenance will require access to several lot courtyards. If a resident does not give permission, what steps are available to the OC Committee in order to carry out required maintenance?
• QUESTION: The cement render on my balcony ceiling is crumbling. Is this lot owner responsibility to fix? I am trying to understand what is common property and what is part of my lot.
• QUESTION: My hot water pressure in my apartment is very low. The hot water takes forever to heat up. Is the owners corporation responsible for fixing this?
• 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.

Question: My intercom is broken but I’m not sure if the fault is with my handset or the entire unit. Who pays and how do I get this fixed?

My intercom system is not working. I’m not sure if the problem is with my particular handset or an issue with the main system. I’ve reported the problem to the strata manager and they have stated it’s the unit owner’s responsibility to pay for the handset if it’s broken. If it’s is the complete unit downstairs that is the problem, who is responsibility to investigate and repair the problem?

Answer: The owners corporation can have the intercom repaired and then “may” on-charge the owner of the lot, if necessary.

When it comes to servicing an intercom system, it would be best to approach the owners corporation committee for direction. Committees can see (or do) things differently from one to the next (as long as they don’t breach their responsibilities or regulations).

The Owners Corporation Act 2006 section 49 (1) and (2) states:

Cost of repairs, maintenance or other works

An owners corporation may recover as a debt the cost of repairs, maintenance, or other works undertaken wholly or substantially for the benefit of some only of the lots from the lot owners, but the amount payable by those lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.

If a committee follows the letter of the law as per above, whenever a buzzer needs repairing, they can have it repaired and then “may” on-charge the owner of the lot that “owns” that specific buzzer. OR, seeing it’s the external head unit located at the main entrance of the building, the committee may have a “swings & roundabouts” approach knowing that at some point, all other owners may face the same issue. In this case, the committee may be happy to have the buzzer repaired and paid through the owners corporation. On the other hand, if the fault is with the handset INSIDE the private lot, then unless the committee instructs otherwise, it would be the lot owner’s responsibility seeing the faulty handset is only benefitting the one lot and no-one else.

To determine which piece of equipment is at fault will require a technician to visit the site and assess both units. The initial inspection or call out may need to be covered by the lot owner. Again, there’s no harm approaching the committee for their view on this. The subsequent repairs may be covered by the owners corporation if the committee approves.

In summary, prior to engaging a contractor, seek direction from your committee to determine how they approach any repairs relating to the building’s intercom system.

Guy Garreffa
StrataPoint
E: [email protected]
P: (03) 8726 9962

This post appears in the December 2021 edition of The VIC Strata Magazine.

Question: If the OC owns the external face of the buildings, how can they make lot owners pay for the cost of painting the building?

I am the chairman of the committee of an Owners Corporation. I cannot find where the OC’s Plan of Subdivision has any definition of building boundaries – it only shows the lot boundaries and common property.

There are 25 lots, 6 of which are duplexes sharing one common wall, and the rest are stand alone homes.

I’m having a hard time understanding where the boundaries of the buildings belong to the lot owner for the purposes of painting. One lot owner wants to paint their lot in a completely different colour than the existing colour of the complex and she is in one of the duplexes.

I assume that Section 53 of the Owners Corp Act applies.

I also think that since the Plan of Subdivision doesn’t appear to define any building boundaries (the complex was built in 2007), then the boundaries of the buildings are deemed to be the “Median”, which if I understand right, means the OC owns the external face of the buildings.

If this is correct, then why is it that the OC makes the lot owners pay to paint their own buildings?

Answer: As a general rule, where there are no defined notations, the median boundary applies and the exterior wall would be common property.

Plans of subdivision vary greatly and expert advice and a thorough review is necessary as different regulations apply depending on when the plan was registered.

It is difficult to provide an answer without viewing the plan of subdivision. As a general rule, where there are no defined notations, the median boundary applies and the exterior wall (if the wall is on the lot boundary) would be common property and the Owners Corporation would have an obligation under Section 46 of the Owners Corporations Act 2006 to maintain it including the painting.

Section 53 of the Act would not usually apply to painting works.

However, if the painting wholly or substantially is for the benefit of one or some, but not all, of the lots affected by the owners corporation then the Owners Corporation must apply the benefit principle under Section 49 of the Act and the amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more. The Owners Corporation needs to undertake an assessment to work out the appropriate calculation.

As for the colour that must be painted, unless there is a covenant or an enforceable Owners Corporations rule which is registered on title, the Owners Corporation may have difficulty forcing the lot owner to have a particular colour.

The advice above is of general nature only and does not constitute legal advice. Suitable advice will depend on the particular plan of subdivision, the rules that apply and relevant circumstances. It’s always best to obtain fulsome legal advice from an expert in the area.

Phillip Leaman
Tisher Liner FC Law
E: [email protected]
P: 03 8600 9370

This post appears in the December 2021 edition of The VIC Strata Magazine.

Question: Is it the responsibility of each unit owner to make sure the internal wiring and switchboard are safe and serviceable?

I am on the owners corporation in a block of 12 strata title units in Melbourne. We have just had the mains power to all units upgraded.

Is it the responsibility of each unit owner to make sure the internal wiring and switchboard are safe and serviceable? Can the committee write requesting that all unit owners check the safety and serviceability of their internal electrical systems? Is there legislation on this?

Answer: A lot owner must maintain any service that serves that lot exclusively.

Section 129 of the Owners Corporations Act 2006 states the following:

Care of lots

A lot owner must—

1. 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
2. maintain any service that serves that lot exclusively.

There is no reason why a Committee can’t write to Lot owners informing them of the above obligation and requesting that they check the safety and serviceability of internal wiring to ensure they comply.

Gregor Evans
The Knight
Email
P: 03 9509 3144

This post appears in Strata News #522.

Question: We have two issues with noise due to the poor design of pipes and gutters around our unit. Is the owners corporation responsible for fixing these issues?

We have two noise issues.

We live in an apartment with a unit directly above separated by a steel and concrete composite slab. As a result, waste services travel through the slab and enter airspace (enclosed in a bulkhead) in our bedroom. When our upstairs neighbours urinate, we hear the whole thing throughout the house. It is louder than someone using the toilet in our own apartment. Given that the pipes are common property, is it the Owners Corporations responsibility to adequately soundproof these pipes?

We also have common property box gutters that sit inside our apartment, once again enclosed in a bulkhead. The gutter is the main collection for three large sections of roof on our apartment complex so it receives large quantities of water when it rains. The bulkhead is just metal bracing, plasterboard with minimal loose weave synthetic insulation that appears to offer no acoustic benefits whatsoever. When it rains the sound that the gutter makes is deafening—you cannot have a conversation near it without raising your voice significantly. Once again given that the gutter is common property, is it the Owners Corporations responsibility to adequately soundproof the gutter?

Answer: At the end of the day, the OC is only responsible to repair and maintain services, not to “improve” them.

The short answer is, no. But you may have a case to present……

Firstly, it would be beneficial for the owners affected by the excessive noise levels to investigate whether other lots are experiencing the same issue.

It’s true, the Owners Corporation must repair and maintain (common) services. Section 47 of the OC Act 2006 states: An owners corporation must repair and maintain a service in or relating to a lot that is for the benefit of more than one lot and for the common property.

What needs to be determined in this case, is whether the waste and other (internal) drains are actually serving their purpose as intended. It may simply be a case of poor building design, a lack of soundproofing or both. The case of excessive noise could be dismissed seeing the drains together with the external box gutters are functioning as intended.

It really sounds more like poor design and workmanship that is causing the excessive noise, whether it’s from the waste drains or similarly from your external box gutters.

A suggestion to tackle this concern would be to approach your owners corporation committee and raise the issue with them. This is clearly affecting your quality of life and enjoyment of living at the property. If you have obtained similar complaints from other owners, this will strengthen your argument. Present your case to the committee in the hope they investigate options for a resolution to this noise concern. A sympathetic committee (or OC) may consider improving what is causing owners a great deal of anguish. At the end of the day, the OC is only responsible to repair and maintain services, not to “improve” them.

This situation is unique seeing what is causing the noise isn’t “broken or damaged” and in need of repair. They are obviously poorly designed or inadequately enclosed. Having said that, there’s certainly no harm in asking. As mentioned, it would be an advantage to determine if residents in other lots are experiencing the same thing.

If you are due to have an AGM soon, it could be a good opportunity to raise this issue as an agenda item and discuss the matter at the meeting.

Guy Garreffa
StrataPoint
E: [email protected]
P: (03) 8726 9962

This post appears in the October 2021 edition of The VIC Strata Magazine.

Please seek legal advice or instructions prior to proceeding with any extensive works relating to either private or common property.

Question: My strata plan seems to suggest the roof space is within the upper boundary of my lot. If so, can I use this space as part of my lot?

Is the roof space in a strata property common property? On my strata plan subdivision (under Strata Titles Act 1967) the upper boundary is described as ’10 metres above the relevant lot’. This would be higher than my roof. If the roof space of my lot is part of my property, am I within my rights to use this as part of my lot for storage?

Answer: You must make sure that you read the boundaries description as a whole to obtain the accurate boundaries description.

Boundaries definition of strata plans governed by Strata Titles Act 1967 includes a description of the depth of limitation of private lots, which subsequently identifies the common property.

If you are certain that your roof is situated less than 10 metres above your lot, and that description does not include the measurement from the surface to the ground below, then it seems that the storage is part of your property and you are entitled to use it.

That said, you must make sure that you read the boundaries description as a whole to obtain the accurate boundaries description and not read descriptions in isolation from the whole context.

Rochelle Castro
RC & Co Lawyers
E: [email protected]
P: 1300 072 626

This post appears in Strata News #515.

Question: If our old building doesn’t comply with current building requirements, is the owners corporation required to carry out repairs?

A builder doing some maintenance at our units stated that the building doesn’t comply with building requirements. There are no gutters on the upper floor outdoor spaces and water just runs off the upper decks onto common driveway and parts of some individual units below. What should be done in this case, given the building was approved by Council when completed years ago? Is there a retrospective obligation to ‘fix’ this and would it be the owners corporation’s responsibility?

Answer: Engage a building surveyor to inspect the property and provide advice as to whether the building is compliant.

If a building isn’t compliant then works should be undertaken to ensure that it is compliant. It’s suggested that a building surveyor is engaged to inspect the property and provide advice as to whether the building is compliant.

In terms of who is liable for the works it depends on the location of the non-compliant section(s) of the building. If it is deemed that gutters should’ve been installed to the roof and the roof is common property (refer Plan of Subdivision or Strata Plan) then the Owners Corporation would be liable. If sections of the building that are deemed non-compliant are located on private property then the respective Lot owner(s) would be liable.

Also it is to be noted that if the building is less than 10 years old and the original builder hasn’t disappeared, died or become insolvent then there may be recourse against them to rectify. Refer following link: Implied warranties and domestic building insurance – checklist

Gregor Evans
The Knight
Email
P: 03 9509 3144

This post appears in Strata News #514.

Question: Is the Owners Corporation responsible for emergency lighting fitting maintenance on my unit lot?

Currently, my Owners Corporation claim that they are not responsible for emergency lighting fitting maintenance on my unit lot which is located in an apartment building. Does the ruling of Fair Trading NSW, Owner Corporation are being responsible for the maintenance of light fitting which recesses into the ceiling, applied in Victoria?

Answer: You must first determine if your plan of subdivision states that the emergency lighting fitting in your apartment forms part of the common property.

In Victoria, the Owners Corporations Act 2006 (Act) provides that the owners corporation is responsibility to repair and maintain the common property. In that regard, you must first determine if your plan of subdivision states that the emergency lighting fitting in your apartment forms part of the common property. If it is, then the owners corporation is definitely required to repair and maintain it according to the Act.

Rochelle Castro
RC & Co Lawyers
E: [email protected]
P: 1300 072 626

This post appears in Strata News #509.

Question: Who is liable for the repair of the subfloor of the ground floor unit? The unit owner or owners corporate?

Who is liable for the repair of the subfloor of the ground floor unit? The unit owner or owners corporate? The damage was caused by a leak years ago prior to our purchase of the lot. Can this repair be claimed with building insurance?

Answer: The liability for the damage depends on where the boundary of the ground floor lot is located.

The liability for the damage depends on where the boundary of the ground floor lot is located. You will need to review the Plan of Subdivision of Strata Plan to determine the location.

Insurance typically covers damage that occurs from an insurable event which generally includes damage resulting from a water leak. If you can demonstrate that the subfloor was damaged due to a leak then I would suggest lodging a claim against the Owners Corporation’s insurance policy.

Gregor Evans
The Knight
Email
P: 03 9509 3144

This post appears in Strata News #508.

Question: Is the waterproof membrane on my balcony my private property and therefore my responsibility to repair, or common property and the responsibility of the Owners Corporation?

I am the owner of an apartment in a five-story building. The Plan of Subdivision notes that the location of boundaries defined by buildings are all the interior face of the lot.

Does this mean that the waterproof membrane on my balcony, which has turned out to be not-so-waterproof after all, is my private property and therefore my responsibility to repair, or common property and the responsibility of the Owners Corporation? The sub-par membrane has also caused a couple of the tiles on my balcony to rise. Other lot owners in the building have similar issues.

Answer: When it comes to waterproofing, it really comes down to the boundary

When it comes to waterproofing, it really comes down to the boundary and as mentioned, it is the internal facing scenario.

However, despite it being the internal face of the lot, there may be other conditions on the plan of subdivision or the strata plan that make reference to the location of waterproofing and tiles and that type of thing. So it is really important to look at the plan of subdivision and strata plan in its entirety. If there’s no conditions, then typically speaking, if the boundary is internal face/interior face, the lot owner is responsible for the membrane.

There is the subdivision registrar’s requirements regulations 2011, which actually properly define the boundaries of a lot. So it talks about the interior face, the medium face and the external face. It actually provides diagrams, and it goes into a bit of depth in regards to what is actually included and what’s not. So whether it’s the horizontal boundary being the membrane, or whether it’s the vertical being the window boundary, it’s really helpful, actually. So my suggestion would be to consider that.

There’s also, the view that those regulations that were created in 2011, may not be retrospective. However, if there is any, uncertainty about the boundary previously, my understanding is that lawyers do look upon those regulations and try to apply the logic retrospectively at VCAT, if it goes to there.

Again, typically yes, the owner would responsible for the replacement of the membrane, however, there’s a few other I guess, tick boxes to check to make sure that’s the case.

Gregor Evans
The Knight
Email
P: 03 9509 3144

This post appears in the June 2021 edition of The VIC Strata Magazine.

Question: The townhouses in our strata appear not to have waterproofing in the upstairs bathrooms. Who is responsible to fix this?

Our home is one of many townhouses in our strata development.

It’s become apparent there is no waterproofing to the upstairs ensuites & bathrooms of many homes, with water eventually leaking through to the downstairs ceiling.

The estate was built in 2000, and I believe the builder is no longer in business.

Would the cost to remove floor/wall tiles and shower base to waterproof both ensuite & bathroom (to prevent ongoing leaking through to downstairs ceiling) fall towards the Owners Corporation, as it appears to be a structural defect that will only continue in time and possibly get worse? We are all concerned about mould developing from this defect.

Answer: Looking at the plan of subdivision is the first step to take to determine whether the Owners Corporation is responsible for these works

To determine if the Owners Corporation is responsible to remove floor/wall tiles and shower base to waterproof both ensuite & bathroom (to prevent ongoing leaking through to downstairs ceiling), the plan of subdivision of your development would have to be examined. The plan of subdivision defines what part of the building is common property (Owners Corporation responsibility) or private property (Owner responsibility). That is the first step to take to determine whether the Owners Corporation is responsible for these works.

Rochelle Castro
RC & Co Lawyers
E: [email protected]
P: 1300 072 626

This post appears in the June 2021 edition of The VIC Strata Magazine.

Question: Are boundary fences on a property considered to be ‘common property’ or, if they are on only one lot owner’s property, is the lot owner responsible for the boundary fence?

Answer: There is no uniform rule.

There is no uniform rule. It could be that the responsibility of the boundary fence is the Lot owners, the Owners Corporations or equal responsibility. It depends on what the Plan of Subdivision or Strata Plan stipulates is the boundary location of a Lot (i.e. internal, external or median).

If the fence is only benefiting one Lot owner then it may be argued that they are responsible for reimbursing an Owners Corporation for the cost of repairs or maintenance. Refer Section 49 of the Owners Corporations Act 2006 that states the following:

Cost of repairs, maintenance or other works

1. An owners corporation may recover as a debt the cost of repairs, maintenance or other works undertaken wholly or substantially for the benefit of one or some, but not all, of the lots affected by the owners corporation from the lot owners.
2. The amount payable by the lot owners is to be calculated on the basis that the lot owner of the lot that benefits more pays more.
3. The works referred to in this section may be to the common property or a lot.

Gregor Evans
The Knight
Email
P: 03 9509 3144

This post appears in Strata News #483.

Question: Our OC Committee wants to arrange external window cleaning for our building of levels 1 and 2. This common property maintenance will require access to several lot courtyards. If a resident does not give permission, what steps are available to the OC Committee in order to carry out required maintenance?

Answer: Section 50 and 51 allow the Owners Corporation to enter a lot in order to carry out required maintenance.

Section 50 and 51 allow the Owners Corporation to enter a lot in order to carry out required maintenance. The Owners Corporation must provide at least 7 days written notice, unless the occupant agrees to an earlier time, or it’s an emergency.

If the occupant refuses to provide access, they should be issued with a breach notice pursuant to Section 155. The occupant must then comply with the notice within 28 days. If they fail to comply with the notice, a final notice must be issued pursuant to Section 157. This allows them another 28 days to comply. If they again fail to comply, the Owners Corporation must apply to the Victorian Civil & Administrative Tribunal to obtain a formal order. Failure to comply with an order imposed by the tribunal is an arrestable offence, though they typically issue monetary penalties in the first instance.

Tristan Veurink
VIC Branch Manager
Civium Communities
E: [email protected]

This post appears in the April 2021 edition of The VIC Strata Magazine.

Question: The cement render on my balcony ceiling is crumbling. Is this lot owner responsibility to fix? I am trying to understand what is common property and what is part of my lot.

I am the owner of a ground floor apartment in a block of 7 apartments. Recently, the concrete render on the ceiling of my lot balcony has been crumbling. I have reported this to our body corporate who have advised this is not their responsibility to maintain. According to them, this is the lot owner’s responsibility. Is this correct?

I am trying to understand what is common property and what is part of my lot. Or if it is a cosmetic issue, is it my responsibility to maintain but structural repairs are up to the owners corporation? I’m really not sure.

Answer: Is it private or common property? This can be determined with the Plan of Subdivision which identifies common and private property.

Knowing who is responsible is always the tricky when it comes to issues that are difficult to source where they originated.

It is a challenge to answer your question without having the plan of subdivision on hand. However, I would make some comments based on what you’ve indicated.

With issues like these, it almost always comes down to who owns the property in question. Is it private or common property?

That can be determined with the Plan of Subdivision which identifies common and private property.

I find it unusual to think that the underside of the above balcony is your responsibility. That is not unheard of, but it would be a rarer occurrence. Unless of course there is a median boundary between your lot and the above, which could be the case.

When you talk about the pipe overflowing, the reason that may have been attended to by the Owners Corporation is the pipe services more than one lot. So, in the event that a “service” serves more than one lot, there is provision within the Owners Corporation Act that stipulates the Owners
Corporation must repair and maintain the service. Sec 47 is quite clear on that.

However, if the Owners Corporation wishes, it can apply what is known as the “benefit principle”, where they would recover the costs from both lot owners for the works. It sounds like they didn’t in your case.

The recommendation would be to get hold of a plan of subdivision and determine who owns the area in question. Once you have that information, the rest of will flow from there.

Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788

This post appears in the February 2021 edition of The VIC Strata Magazine.

Question: My hot water pressure in my apartment is very low. The hot water takes forever to heat up. Is the owners corporation responsible for fixing this?

My hot water pressure in my apartment is very low. The hot water takes forever to heat up, and once it does, it’s very difficult to find a suitable temperature.

My owners corporation have advised that the hot water is my issue, as it is an electric issue. Is this true, or do they have some responsibility?

The hot water system for all of the apartments in the block are in the roof.

Answer: A plumber should be able to simply assess the issue at your end.

I assume this is possibly a gravity fed system, which many blocks of apartments used to have. They aren’t the best, but they do work for their intended purpose. It seems odd the Owners Corporation would indicate the issue is yours, if the hot water system is in fact shared by all – a common asset.

A plumber should be able to simply assess the issue at your end, test the pressure and hopefully advise as to why there is an issue. It may be that you’re apartment is located quite some distance from the unit, meaning the pressure drops over the length of run, which might also explain why it takes a while to heat up.

It doesn’t seem that difficult to resolve, and ultimately, if it can’t be determined, installing your own unit for your apartment might be an option.

Joel Chamberlain
Horizon Strata Management Group
E: [email protected]
P: 03 9687 7788

This post appears in the February 2021 edition of The VIC Strata Magazine.

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—

1. 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
2. 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—

1. over—
   
   1. all the land on a plan of subdivision of a building; and
   2. that part of a subdivision which subdivides a building; and
   3. any land affected by an owners corporation; and
   4. any land on a plan if the plan specifies that this subsection applies to the land;

and

2. for the benefit of each lot and any common property—
   all easements and rights necessary to provide—
3. support, shelter or protection; or
4. 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
5. rights of way; or
6. full, free and uninterrupted access to and use of light for windows, doors or other openings; or
7. maintenance of overhanging eaves—

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.

Mailboxes will be installed on the common property by the developer of the project, to ensure unrestricted access by occupants within the property. This also ensures the responsibility for their ongoing maintenance rests with the owner corporation.

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.

Firstly, what you are referring to is the “benefit principle” noted under Sec 49 of the Owners Corporation Act 2006. This sets out that the Owners Corporation may recover the cost of repairs, maintenance or other works as a debt, undertaken wholly or substantially for the benefit of one or some, but not all of the lots affected by the Owners Corporation.

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.

There are several reasons why the Owners Corporation may be stating the responsibility of the leak is yours to resolve.

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 defines 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.

The responsibility of who must repair and maintain the roof tiles is that of the owner of those roof tiles. To determine if the roof is within Common Property boundaries or part of your Lot you would need to refer to the Plan of Subdivision for your Owners Corporation (available from your Owners Corporation Manager if you don’t have a copy). The Plan will identify where the boundary to your lot ends and the Common Property begins.

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.

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