Generally speaking a Body Corporate is responsible for a repair relative to common property. The Body Corporate and Community Management (Standard Module) Regulation 2008 (“the Regulations”), Section 159, provides:
A Body Corporate’s obligation to repair and maintain common property, extends as well to structures bordering the common property, such as railings, fencing, doors, windows and associated fittings separating a lot from the common property. There are exceptions to the above; however, limited.
Utility infrastructure is not necessary a “common property” matter for which the Body Corporate is liable. If the infrastructure is on common property, but solely supplies an individual lot – the owner of the lot is liable. An example of such an infrastructure includes air conditioning units, hot water systems and other devices supplying a utility or service to a lot.
Whilst Body Corporate liability as to “common property” and “boundary” matters are readily understandable, significant ambiguity follows from an incident arising within an individual unit which is traceable to matters associated with common property.
One such example arose in the matter of The Palms Apartments [2009] QBCCMCmr 428 (30 October 2009). In this case, a water pipe burst in the wall of an owner’s bathroom. Both the owner and the Body Corporate disputed responsibility. The Body Corporate argued that the pipe was within the boundary of the lot and was a utility infrastructure (and referred to Section 159 of the Regulations in support of the position that the owner was liable). The owner disputed this argument producing a plumber’s report, which stated that the water pipe did not supply water solely to that unit (referring liability back to the Body Corporate). The adjudicator determined that the dispute related to a utility infrastructure, subject to Section 20 of the Body Corporate and Community Management Act 1997, and held that the pipe was considered “common property” for which the Body Corporate was responsible to maintain. The Body Corporate was required to compensate the owner of the damages arising from the water pipe leak.
The last three years have been brutal on Queensland body corporate owners, in terms of environmental damage and retraction in the property market generally. Following from the storm surges, cyclones and flooding, many Queensland bodies corporate have been dealing with disputes between insurers and owners as to liability for repairs and maintenance. This is especially difficult in circumstances where the bodies corporate are willing to make repairs, but skilled labour and/or services are not available. Owners lacking appreciation for the difficulties faced by Body Corporate Managers and Committees balancing between insurers, assessors, occupiers (including displaced tenants) and alike, cause further delays in processing and can clog the Body Corporate Commissioner’s Office with complaints.
The best strategy to adopt is one of information dissemination to all owners, on an annual basis, at least. The information sheets should identify the difference between common property/body corporate obligations and those associated with an owner specifically. Owners need to be encouraged to adapt proactive efforts at minimizing damages following environmental events, such as seeking approval from insurers to organize their own repairs (even if the repairs need to be paid out of pocket initially by the owner) so as to protect the properties from further and continuing damage.
The Nautilus Team is experienced in a wide range of body corporate disputes, and in the last three years have been engaged in negotiating with insurers, owners and Committees regarding recovery and restoration of properties following the environmental events.
If you require assistance in resolving property damage matters, please do not hesitate to contact our team to arrange a meeting on (07) 5574 3560. Our solicitors regularly travel between Port Douglas, Cairns, Townsville, Mackay, the Sunshine Coast and the Gold Coast offering assistance to Committees along Eastern Queensland.
We thank you for considering Nautilus Law Group.
