The Law Handbook 2024

Chapter 6.5: Owners corporations 599 include works that are provided for in an approved maintenance plan. If such works are part of the maintenance plan (above), a special resolution is not required. Windowsills and eaves The responsibility for a windowsill repair will be partly determined by the location of the boundary and by who benefits from the repair. For most lots, the overhanging eaves are the responsibility of the lot owner to maintain (s 131). The responsibility for external painting of the eave is therefore a private responsibility. Many owners corporations carry out external painting of privately owned windows and eaves by utilising section 12 of the OC Act, which allows for the provision of services to members provided a special resolution is obtained. Water leaks Under section 16 of the Water Act, a lot owner is responsible for the repair and maintenance of their unit to prevent any escape of water from the unit into any other unit within the plan of subdivision. Although the owners corporation is not a liable party and need not pursue a response, it must do everything in its power to fulfil its obligations responsibly to ensure that it cannot be implicated in the cause of the leak. This may involve undertaking investigations, repairs andmaintenance including new guttering, flashings and sealants and the clearance of storm water drains. In addition, under section 48 of the OC Act, an owners corporation may choose to be involved and may serve notice on the lot owner requiring the lot owner to carry out the necessary repairs, maintenance or other works and may recover as a debt from the lot owner any costs expended by the owners corporation for the rectification (s 49). Fences An example of a situation that can arise regarding fences is where a courtyard belonging to the front lot owner and enclosed by a fence borders a municipal council footpath on one side and a driveway that is common property on another side. Generally, the owner of the land that abuts a fence – including internal private lot boundaries and external perimeter boundaries – is responsible for a half share of the cost of its maintenance or replacement. In this case, as local government is exempt from maintaining the fence adjacent to the path, the lot owner has total liability for this expense and shares liability with the owners corporation for that part of the fence that borders the common property. The model rules require a lot owner to receive written approval from the owners corporation before making any changes to the external appearance of their lot – this includes changing the colour of a fence. (For more information on fences, see ‘Fences’ in Chapter 6.4: Neighbour disputes.) Implied easements Although an owners corporation may make rules regarding amenities on common property and the external appearance of lots, section 12 of the Subdivision Act provides the right of an implied easement for the infrastructure included in the fabric of a building and for it to be undisturbed. These items may include water and drainage pipes, electricity and telecommunication cables, exhaust flues, infrastructure for climate control and water meters. Additional installations may be permitted if the easement or right is necessary for the reasonable use and enjoyment of a lot or the common property and is consistent with the reasonable use and enjoyment of other lots and common property. Written approval from the owners corporation should be sought at first instance. Lifts Can an owner on the ground floor of a multi- rise complex legitimately claim dispensation from contributions for lift maintenance for non-use by the owner or his invitees? Perhaps, but not where underground car parking is provided. A further defence may exist if the air conditioning equipment that services the building is housed in a plant room on the roof. Should an owner pay more for running and maintaining the lift if that owner occupies the penthouse lot? The implication that costs correlate directly with the number of floors traversed is incorrect as the major expense is incurred during take-off and landing. The recurrent cost of inspections and testing is not substantially affected by lift usage.

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