Requirements of both parties
The Owners Corporations Act 2006 (Vic) (‘OC Act’) (ss 46, 47) requires an owners corporation to repair and maintain the common property and common services. The Act (s 129) also requires each owner to properly maintain the externally visible part of their private lot and any service that serves that lot exclusively. For example, in the event of a burst water supply pipe, the owners corporation must maintain the main line that serves all lots, but the lot owner must maintain the branch line that serves that lot exclusively, irrespective of whether the branch line is located on common property or private property. The location of the meter is not relevant to the issue of liability.
It is important to refer to the plan of subdivision to determine responsibility for maintenance. The location of boundaries is set out on the plan. Note that in all plans of strata subdivision the boundary between a lot and common property, or a lot and another lot, is the median of the wall unless the plan indicates otherwise (reg 31 SRR Regulations). In later plans of subdivision, the boundary between common area and an individual lot is often the building line.
The OC Act (ss 52, 53) enables the owners corporation to make significant alterations to common property by way of capital works. A special resolution of the owners corporation is required where:
- the total cost of the works is estimated to be more than twice the total amount of the current annual fees; or
- the works require a planning permit or a building permit before they can be carried out but does not 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.
Under section 16 of the Water Act 1989 (Vic), 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 and maintenance 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).
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 about fences, see ‘Fences’ in Chapter 6.4: Neighbour disputes.
Although an owners corporation may make rules about amenities on common property and the external appearance of lots, section 12 of the Subdivision Act 1988 (Vic) 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.
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.