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Maintenance Responsibilities for lots and Common Property?

For the most part, the Body Corporate and Community Management Act 1997 provides that a body corporate must maintain the common property and owners must each maintain their lot.

This general rule changes for lots subject to a building format plan (the former building units plan) where the body corporate has the added responsibility for parts of the land and building that are not common property. This includes railings, balustrades, membranes, supporting framework and more.

In simple terms, a building format plan is where lots are defined by a building's structure and projections of that structure (such as floors, ceilings, walls). The boundaries of lots are found in the centre of those structural elements. Lots in high rise apartment buildings are usually created under a building format plan. A standard format plan (the former group title plan) is where lots are defined by marks in the ground (survey pegs) or edges of structural elements (buildings). Lots in townhouse complexes are usually created under a standard format plan.

The different body corporate responsibilities for these types of plans come into focus with two particular issues: termite damage and fixtures / fittings in a lot.

Termite damage: A body corporate for a scheme subject to a building format plan will almost always be responsible for termite damage, whether it is found on common property or a lot.

It is different for a body corporate subject to a standard format plan because it will not carry the same maintenance responsibilities for the structural elements of a lot. In that case, the individual owner will be responsible for termite damage found in their lot unless they could show that:

• the body corporate breached its duty to maintain common property by failing to undertake adequate pest control; and

• the termites came from common property and therefore caused the damage to the lot.

Of course, alleging these things is easy enough. Proving them is another thing entirely.

Fixtures/fittings: A body corporate for a scheme subject to a building format plan is obliged to take out insurance coverage for fixtures and fittings included in a lot, subject to a number of exceptions (such as removable fixtures, curtains, appliances that are not wired in).

This insurance obligation does not apply to schemes subject to a standard format plan unless a building on one lot shares a common wall with a building on another lot (like adjoining townhouses).

This insurance obligation fits in with a body corporate's duty to maintain its buildings in a structurally sound condition. If there is any breach of this duty (such as water ingress from a failed membrane), then any number of lots will suffer damage. That damage would likely include fixtures and fittings, most of which would be covered by the body corporate's insurer.

Frank Higginson
Hynes Lawyers