Q&A Responsibilities
Question: Certain important areas of general maintenance are not covered within our Management Agreement. Can this regular maintenance be included within our Bylaws?
I write from a 27 lot Gold Coast complex. Are there limitations as to what can be included within By-laws, as certain important areas are not covered within our Management Agreement? This includes general maintenance such as regular pest control, regular cleaning of our three indoor common areas, carpeted stairwells plus stairwell walls/windows/fire doors; window washing of difficult-to-reach windows from outdoors. The windows were finally cleaned about two years ago and it was the first time in over 20 years!
Answer: The maintenance issues you are discussing would not ordinarily be covered in the by-laws.
By-laws have to conform with the body corporate act and be voted on by owners to be approved.The issues you seem to be discussing would not ordinarily be covered in the by-laws. They seem like scope of work issues to establish with your building manager/relevant contractors. The extent of items like cleaning and pest control can vary from building to building and will mostly be decided by the committee and within your annual budget. If you want to see these items conducted more regularly you should raise the item with the Committee or join the Committee to influence the decision. There are always cost factors to consider but generally, well-maintained buildings have regular schedules in place for maintenance of items like this.
William Marquand – Tower Body Corporate
Question: Who is responsible for the painting the exterior of our villas? Is it the Body Corporate or the lot owners?
We have 165 Villas which are all ground floor duplexes. We are Building Format, Standard Module. The exterior of the Villas is due to be painted, including Eaves, guttering & downpipes. Who is responsible for the painting? Is it the Body Corporate or the lot owners. Does this include the eaves, fascia, gutters? Also the window are corroding and need replacing. I have been told that, as we are Building Format, it is the Body Corporate’s responsibility to maintain the exterior of the duplexes.
Answer: Yes, generally speaking.
Yes, generally speaking, in a building format plan the body corporate would be responsible for maintaining common property, including the exterior of the building. Here is an adjudicator’s order which talks about how fascia might be regarded in at least that circumstance. Every situation is different and you’d need to carefully consider the adjudicator’s logic here, and in other orders on the topic, to get a feel for how things would be considered in your particular case. Think of it this way: there are over 50,000 schemes in Qld. Each one of those schemes is different from the other. It’s the job of committees and owners to discuss, consider and hopefully, resolve as to how things will be treated when it is not abundantly clear. If that can’t be done, then it’s the role of the adjudicator to determine.
Question: Who is responsible for the repair, replacement or installation of electrical safety switches in common areas? The unit owner or body corporate?
Answer: Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot.
Your general rule of thumb is that the body corporate is responsible for common property and the owner is responsible for things within the boundaries of their lot. That said, section 159(3) of the Standard Module provides that despite this, and I quote: the owner of the lot is responsible for maintaining utility infrastructure, including utility infrastructure situated on common property, in good order and condition, to the extent that the utility infrastructure—
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- relates only to supplying utility services to the owner’s lot; and
- is 1 of the following types—
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- hot-water systems
- washing machines
- clothes dryers
- another device providing a utility service to a lot;
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So if there is utility infrastructure on common property and it relates only to the particular lot and it’s actually a utility service, then it would be the owner’s responsibility.
My suggestions are:
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- keep the above in mind and be clear about where the connections are for your lot and
- have a look at past adjudicators’ orders to see how they’ve regarded safety switches.
What constitutes ‘utility services’ can be quite a vexed issue.
Question: I don’t use some facilities so why should I have to pay for maintaining them?
I am in QLD and live in a 7 lot acreage BC community. Our lots are accessed by 2 electronic gates/intercoms and 2 common property bitumen roads. One 200 metre road services 2 lots exclusively. The other 700-metre road services the other 5 lots exclusively as well. Do the owners of the 2 lots have to contribute to the costs of fixing the road servicing the other lots.
Answer: Your body corporate could look into exclusive use provisions although it’s going to be difficult.
Take a look at this page from my former Office regarding Standard format plan maintenance. Your scheme sounds like a standard format plan and for such a plan, the page says the following:
The body corporate is usually responsible for maintaining –
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- roads, gardens and lawns on common property
- facilities on common property (like swimming pools and barbeques)
- utility infrastructure (link utility infrastructure – https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance/utility) (like equipment, pipes and wiring) that is on common property, or in a boundary structure, or services more than 1 lot.
You mention the word ‘exclusively’ a couple of time so perhaps what you are angling at is whether there should be some exclusive use provisions. Your body corporate could look into that although it’s going to be difficult: if you went ahead and divvied things up as you suggest, some people are going to end up paying a lot more in levies and some a lot less. It’s (nearly?) impossible to think anyone would vote to pay more levies and you would need a resolution without dissent for it. The argument that “well I don’t use such and such facilities on my body corporate so I shouldn’t have to pay for them” is one that gets advanced a lot. I’d always direct people to consider the name of the legislation, in response to that argument: it’s body corporate and community management (my emphasis added). You’re part of a community and you participate and contribute as a member of that community. You aren’t an island in a body corporate, even if you want to be. It’s a critical concept to always keep in mind.
Question: In storms, water enters our apartment via the window frames and runs down the walls. Who is responsible to fix this and stop the windows from leaking?
We live on Level 5 in our building. We have basic residential sliding windows in 2 bedrooms which overlook common property air space ie. there’s no balcony. When we have a storm which blows at 35 knots or more, rainwater fills the internal channel of the window frame and then spills over the internal window sill and onto the carpet. Does the Body Corporate have an obligation to pay for new frames that will stop the rainwater coming in during a storm?
Answer: The body corporate is generally responsible for windows and their fittings in a boundary wall between a lot and the common property.
If you’re on level 5 then that suggests a building format plan of subdivision (you should double check that is the case against your own documents) and in that arrangement, the body corporate is generally – I stress, generally – responsible for windows and their fittings in a boundary wall between a lot and the common property. An owner under this arrangement is generally – again, I stress generally – responsible for windows leading onto a balcony that forms part of a lot, and is also generally responsible for the inside of the lot, including all fixtures and fittings inside the lot. Determining who is responsible for maintenance is one of the most disputed about issues in a body corporate. Which means I’m not prepared to say one way or the other on your case, other than to point you to my comments above. I’d also suggest you have a look at past adjudicators’ orders to see where decisions have been made on this type of matter before. If there are decisions supporting your situation then you might like to approach the body corporate about replacing the windows and you’d probably do with a quote so that a decision can be made. The body corporate of course may dispute your position and if between you, the matter can’t be resolved, you’d need to proceed to dispute resolution through the Commissioner’s Office.
Question: Our Exterior doors contain asbestos and are being replaced. We’ve been told we need to pay for the replacement of deadlocks and peepholes. Does this sound right?
Our exterior doors are being replaced as they contain asbestos. Most, if not all, unit doors have deadlocks and peepholes which will have to be replaced as, we’re told, they may not be removed to re-use. We have been told by the committee that owners need to pay for the replacement of the deadlocks and peepholes. There are some people who question this and believe that the replacement costs of these items are the Body Corporate responsibility. Can you help with a correct procedure?
Answer: The doors should be replaced like for like.
It depends on how the new door was approved but if it were approved as maintenance (as it sounds to be the case) then generally they should be replaced like for like – which would include the deadlock and peephole (assuming there are no fire safety restrictions surrounding that).
Frank Higginson – Hynes Legal
Question: Who is responsible for the exterior maintenance such as cleaning of the roof? Is it the Body Corporate or the lot owner?
The roofs on all Townhouses and villas in our complex are colourbond. They all need cleaning. Is exterior cleaning owner’s or the body corporate’s responsibility? Some roofs are badly stained due to overhanging trees on community property that the body corporate has refused to have trimmed. Additionally, the concrete fire barriers between dwellings that extend above roof height also need cleaning. Who is responsible for the exterior cleaning of the building?
Answer: This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show.
This will depend on whether the lots are created in a building format plan (BFP) or standard format plan (SFP) – which the survey plan will show. The body corporate manager should be able to confirm this.
If it is building format plan (BFP) – it will be the body corporate’s responsibility, and if it is a standard format plan (SFP) it will be the owner’s responsibility.
The threshold question though is whether the cleaning is required to ensure that they are in good condition. If they are in good condition notwithstanding they are not clean, there is no obligation to clean them.
Frank Higginson – Hynes Legal
Question: We were recently hit by a hail storm which caused damage to our apartment. Who would be responsible for exterior maintenance such as replacing and repairing our damaged fly screens?
Recently in Queensland, we were hit with a hail storm which damaged our fly screens on the southern side of our unit. As the window are the responsibility of the body corporate, wouldn’t fly screens be considered exterior maintenance and treated the same? Who would be responsible for replacing and repairing our damaged fly screens?
Answer: If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate.
The body corporate in a building format plan is responsible for windows and associated fittings situated in a boundary wall. That would include fly screens (as an associated fitting). If the fly screens were fitted on all windows from the outset, then the cost of maintaining them, or replacing them if necessary, should be borne by the body corporate. However, if the screens were installed by the owner, that is an improvement that they would be responsible for.
Frank Higginson – Hynes Legal