Damage to strata titled unit – Who is responsible?

Damage to strata titled unit – Who is responsible for the repairs? Disputes can arise between a body corporate and a lot owner in relation to damage sustained to a unit. The common issue is which party is responsible to repair the damage?

Identify the relevant survey plan

An important first step is to find out which plan of subdivision the scheme is registered under and what regulation module applies. The regulation module is set out in the community management statement for your community titles scheme. The regulation module for the scheme is set by the developer of the scheme. Once a scheme is built, the developer has to register it by recording the plan of subdivision, which is known as a survey plan. The survey plan shows the boundaries of the common property and lots in the scheme. The survey plan will allow you to distinguish what is common property and what falls within the boundaries of a lot. The two common types of survey plans are building and standard format plans.

1. Building format plans

Boundaries between common property and lots are measured from the centre of the floors, walls, ceilings, and doors. For example, the wall between your unit and your neighbour. The internal wall is considered to be within your lot, but the infrastructure between the internal wall that divides your unit, and the neighbouring unit will be common property.

2. Standard format plans

The boundaries are measured from pegs in the ground, the same way as a standalone house.

What is common property?

Common property is defined as all areas of the strata building and land that are not included in any individual owner’s lot. It generally consists of:

  • gardens;
  • lawns;
  • stairways;
  • lifts or ramps;
  • foyers;
  • basement or car parking areas;
  • access roadways;
  • roofs;
  • joint walls including doors, windows or other structures within a wall;
  • infrastructure such as water, power and sewerage;
  • floors;
  • balcony walls and doors;
  • pipes and electrical wiring;
  • foundations; and
  • outside of the building, railings, and facilities such as BBQs and pools.

What are lot owners responsible for?

  • doors and windows leading onto a balcony;
  • lawns and gardens within the boundary;
  • the inside of the lot, including all fixtures and fittings inside the lot;
  • any fixtures or fittings that were installed by the owner for their benefit;
  • exclusive use areas the owner has the benefit of;
  • pipes, cables, wires, drains, plans and equipment such as air conditioning, clothes dryer, hot water system that only services the particular lot; and
  • exterior walls, doors, windows and roof.

Who is responsible for maintenance and/or repairs?

The general principle is that the body corporate is responsible for maintaining common property and anything that falls within the boundaries of a lot is the lot owner’s responsibility. It is important to distinguish between a boundary of a lot and a boundary structure of a lot, as any infrastructure contained within a boundary structure will be classified as common property. Where one lot is separated from another lot by a floor, wall or ceiling, the boundary structure of the lot is the centre of the floor, wall, or ceiling.

However, there are exceptions to the above general principles of maintenance or repair responsibility. Utility infrastructure is NOT common property if it:

  • supplies a utility service to only one lot; and
  • is within the boundaries of a lot; and
  • is not within a boundary structure.

For the repair or maintenance of the utility infrastructure to be the lot owner’s responsibility, all three requirements must be satisfied. Additionally, utility infrastructure that is located on common property is considered to be the lot owner’s responsibility if it only services one particular lot.

Example 1 – Owner’s Responsibility

A gas leak was identified and repaired on common property. However, the cost of the repairs was billed to a specific lot. The pipe in question, although it was located on common property, only serviced one lot, and was the lot owner’s responsibility to repair.

Example 2 – Body Corporate’s Responsibility

A leak is identified in a cold water pipe that services only one lot is located in a concrete slab which forms the boundary between a lot on level five and level six of a building. Although the utility infrastructure only services one lot, it is located within a boundary structure and is the body corporate’s responsibility to repair.

Resolving the dispute  

The parties must attempt to resolve the dispute internally before proceeding elsewhere, which can include notifying the body corporate of the issue, notifying the body corporate committee in writing of an issue, or raising the matter for consideration at a general meeting.

If a resolution cannot be obtained at this stage, the matter can be referred to the Office of the Commissioner for Body Corporate and Community Management by application for a conciliation conference. And if the matter fails to be resolved at the conciliation conference, an application for an adjudication can be made. If the matter proceeds to this stage, the body corporate and any other lot owners may provide submissions.

Remedies

If an adjudicator is satisfied the lot owner has suffered damage to their property due to a body corporate’s failure to maintain the common property, they can order the body corporate to carry out the repairs or if the repairs have been carried out by the lot owner, order a reimbursement.

How we can help

If you have suffered damage as a result of body corporate’s failure to repair or maintain common property or are being held liable for damage that is not your responsibility, talk to us. At Cohen Legal, we’re here to help.