Recently, a client in a building format plan found her townhouse egged. Missiles had also been directed towards a neighbouring townhouse in the Body Corporate. Her townhouse is surrounded by an exclusive use allocation, apart from an adjoining wall to another townhouse in the Body Corporate. This messy event led the impacted lot owners and the Committee to question whether the cleaning, including the cost of cleaning, is a Body Corporate responsibility given that egging is known to quickly deteriorate painted surfaces.
According to the small schemes module regulation, s107 – Conditions and obligations under exclusive use by-law:
(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.
(3) However, if the lot was created under a building format plan of subdivision, in the absence of other specific provision in the by-law, the owner of the lot is not responsible for …
(b) maintaining in a structurally sound condition any of the following elements of scheme land that are part of a structure that is on the part of the common property to which the by-law applies and is not constructed by or for the lot owner—
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including load-bearing walls.
The external cladding, which in this case was not constructed by or for the lot owner, are an essential supporting framework and are the structural maintenance responsibility of the Body Corporate as the by-law did not specify otherwise. The potential for paint deterioration from the egging could be a vector for structural degradation of the framework. If this is true, then perhaps the Body Corporate should bear the cost of clean-up. However, if the egg happened to splatter against a window in the same wall, cleaning would be a lot owner responsibility, as the window is not an essential structural element. However, does the external cladding actually form part of the exclusive use area?
Another consideration is that the townhouse has two levels. The exclusive use area on this scheme has only been defined with respect to the structures on the ground level and this only begins at the edge of a patio on the street facing side. The wall on the upper level facing the street is recessed from the patio and therefore should be classified as common property but not classified as exclusive use. If the impact was on this wall, then the responsibility rests entirely with the Body Corporate.
Lastly, exclusive use sketches typically have an annotation such as – exclusive use boundaries defined by structural features are external face of wall … . As such, the walls are boundaries and could be construed as not forming part of the exclusive use proper but remain unallocated common property. There are clear adjudications that identify that doors and windows in such walls are a lot owner’s maintenance responsibility because they exist only for the benefit of the owner –
We think that the boundary walls, excluding the doors and windows, remain unallocated common property unless specified explicitly as part of the exclusive use area. However, we have been unable to find any adjudication with regard to the wall as just described. If you know the answer for sure, please let us know.
In summary, it can be far from trivial when examining maintenance obligations on schemes with Building Format plan of survey.