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.
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.
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.
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—
- 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—
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.
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.
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.
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.
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.
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.
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.
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.
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.
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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