- Thursday, 19 July 2012 15:47
Article Read: 704
Bodies corporate have a duty under section 159(1) of the Body Corporate and Community Management (Standard Module) Regulation (Standard Module) to maintain common property in good condition.
Under section 20 of the Body Corporate and Community Management Act 1997 the common property includes utility infrastructure, except where explicitly excluded by section 20.
'Utility infrastructure' is defined in the BCCM Act as cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots or common property are supplied with utility services and devices for measuring the reticulation or supply of utility services.
A 'utility service' includes:
• water, gas or electricity supply
• air conditioning
• telephone, computer, data or television services
• garbage, sewerage or waste services
• drainage, or
• any other system or service designed to improve the amenity of lots or common property.
Utility infrastructure is excluded from the common property, under section 20 of the BCCM Act, in the following circumstances:
• where the utility infrastructure is solely related to supplying utility services to a lot; and it is within the boundaries of the lot; and it is not in a boundary structure for the lot (such as a floor, wall or ceiling that forms the boundary between the lot and another lot or common property)
• where the positioning of the common property is the subject of an agreement to which the body corporate or the original owner is a party and under the agreement the body corporate or the original owner does not acquire ownership of the utility infrastructure (such as cable television wires which remain the ownership of the cable television provider), or
• water meters installed after 1 January 2008 in a community titles scheme that was established after 1 January 2008 which remain the property of the water service provider.
Installation - From time to time owners may wish to install utility infrastructure, such as an air conditioner or a hot water system, in such a manner that all or part of the equipment is on common property.
Generally, any improvements to the common property by a lot owner must be authorised by an ordinary resolution of the body corporate unless the improvement is a minor improvement (an improvement with an installed value of $3000 or less), in which case it could be approved by the committee.
However section 68 of the BCCM Act provides for the exercise of rights under a statutory easement. Section 115O of the Land Title Act 1994 establishes statutory easements over lots and the common property of a community titles scheme. Section 115O provides that an easement exists in favour of a lot, and against other lots and common property, for supplying utility services to the lot, and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.
Essentially, these provisions give lot owners the right to establish and maintain utility infrastructure to supply a utility service to their lot, on or over other lots and the common property. The exercise of the rights under this statutory easement must not interfere unreasonably with the use or enjoyment of the lot or common property. Moreover, the party benefiting from the statutory easement must give reasonable written notice before entering another lot or common property to establish or maintain the utility infrastructure.