Take airconditioning. In the case of an air-conditioning system dedicated to one lot – the external condenser unit and cabling will usually be common property and owned by the body corporate whilst the internal unit is owned by the lot owner.  The maintenance of both the internal and external units are a lot owner responsibility.  The insurance on the whole system is usually a lot owner contents responsibility (check the specific policy terms of the body corporate building policy to be sure).

Take guttering and drainpipes. The guttering and drainpipes will be common property and owned by the body corporate. Maintenance will be a body corporate responsibility unless the guttering and drainpipes only service one lot. In a dedicated lot situation, the lot owner would be responsible up to the point where the drainpipe converges on a common drain point. The insurance responsibility is solely the body corporate although an excess might be payable by the lot owner if the insurance event is purely related to the lot.

It can be complicated. Tracsafe can help.

This process is not in accordance with the BCCM regulations and the body corporate treasurer correctly refused to pay the invoice.  The plumber and the lot owner were advised that the lot owner had no authority to contract the plumber in the name of the body corporate.

Electricity infrastructure is not body corporate common property.  The better cause of action for a hot water fault, if water is still running, is for the lot owner to call an electrician.  They would have identified the issue much quicker and could have taken some urgent temporary action until Energex were called to fix their fault.  Energex will reimburse a contractor call out where the issue was an Energex fault.

If the lot owner is unsuccessful in claiming the reimbursement from Energex, the committee could consider a motion for reimbursement of the lot owner for the expense.  However, it should be noted that the electricity infrastructure is not body corporate common property.  If other lots were affected by the issue, the other lot owners might choose to unilaterally directly contribute to any out-of-pocket expenses of the lot owner.

The insurer has approved the repairs for the consequential damage from the storm.  However, this will not commence until the Body Corporate provides evidence that the maintenance issue has been corrected.  A quote provided by a related party to the panel repairer was $11,000.  An EGM is required to approve a quote of that nature and additionally two quotes are required and a lengthy process to run an EGM in accordance with the legislation.  Repairers are hard to source because there are many properties needing repair in the area.  A second quote has been sourced.  A third contractor contradicted the expert’s report but unless the original expert withdraws their report commentary regarding the pointing, the insurer is unlikely to change their position.

A small body corporate does not have the time or money to invest in challenging expert’s reports, nor getting the insurer to modify their position.  Insurers have a lot of power!  Meanwhile the impacted lot owners worry whilst their lots remain unrepaired and the storm season continues.

You must inspect the survey plan for the lot and if the survey plan states that the plan is a building format plan, then each townhouse lot will be defined by the walls, ceilings, floors of the townhouse.  This means that the townhouse structure, foundation, roofing, guttering and cladding all form part of common property.  But his plan could have stated that it was a standard format plan, in which case the entire townhouse would form part of his lot and he could have freely installed the solar panels on his roof.

Making changes to common property can lead to issues if the committee or body corporate refuses to approve the improvement.  The lot owner would need to restore the common property to the prior state.  Avoid the issue altogether, and make sure to get approval.  Committees can approve a common property improvement by a lot owner where the cost of the improvement is less than $3,000.  Beyond that, only a general meeting may consider the motion for an improvement.

The committee included a special motion in the AGM notice of meeting since the proposed course of action was an improvement to the common property by the body corporate.  At the AGM, the votes were – three in favour, one against and one abstain.

According to the BCCM Act, in a special resolution, at least two-thirds of the votes cast have to be in favour of the motion and the number of NO votes must not exceed 25% of the number of lots or 25% of the total contribution lot entitlements.  At first glance, it might appear that the motion had not been lost – since 3 out of 5 does not make the threshold of two-thirds.  However, a careful reading of the Act with help from an adjudication –
http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QBCCMCmr/2007/451.html
– identifies that abstentions do not count towards the number of votes cast.  Therefore, the special resolution passed with three-quarters of votes cast in favour.  The lights were not replaced.

It is the experience of many schemes where lots are rented, particularly in the tourist areas, that tenants are prone to losing keys which provides access to the building and unit.  For this reason, most bodies corporate in buildings where a large number of lots are let charge a standard fee for providing replacement or additional keys.

This practice makes sense where the key has a function providing access to a common entry door.  The Body Corporate needs to control the copying of the key and if necessary the storage and integrity of the master key that is used to make the copy.

However, where the key is unique to the lot and has no other function, it does not make practical sense.  In these cases, the lot owner will usually have the authority to have the key copied.

In our case, the key only gave access to the lot.  Additionally, in this complex, the lot key can only be copied by the manufacturer.  A local locksmith places an order (referencing the number found on the key head) and the key is cut after the name and signature is found to match the manufacturer’s records.  In cases where there is no match, the lot owner will need to provide proof of ownership such as a rates notice.

The first townhouses were originally developed in the 1990s using a Standard Format Plan of survey.  The surveyor had defined a footprint for each lot following the contour of each townhouse with just a slight increase in dimension so that the townhouse footprint sat within the survey plan lot footprint.  The Community Management Statement included an ordinary by-law requiring the lot owners to maintain the exterior of their townhouse in good condition.  The by-law was a little superfluous since the Act already imposes that condition on lot owners to maintain their lot in good condition.  At the inception of the scheme, each townhouse was located within their respective lot.

Subsequent townhouses were developed in the following decade.  Times had changed and surveyors now commonly use a Building Format Plan of survey in new schemes.  They used a Building Format Plan of survey for the new townhouses.  In this arrangement, the townhouse structure was now common property and each lot was defined by the walls and ceilings within each townhouse.  So far, so good.

However, the by-law requiring the lot owner to maintain the exterior of their lot in good condition was left unchanged.  The by-law was invalid for these new townhouses.  The exterior of the lot (for the new townhouses) was common property and only the Body Corporate has that maintenance responsibility unless the by-law was an exclusive use bylaw (which it was not).

The bad news of the misunderstanding was that the Body Corporate had not been planning and saving in their sinking fund for the painting and other maintenance on the second set of townhouses for which they were responsible.  Oops – good thing we were there to help.

Our advice was for the Committee to write to each impacted lot with an offer of assistance.  The offer was conditional on all lots agreeing in writing to the letter.  Some of the conditions of the letter included

• Contractor evaluation and selection is a responsibility of one or more of the impacted lotowners.
• The Committee will only execute the contract once all lots have prepaid the full amount to the Body Corporate.
• The executed contract must be in the name of the Body Corporate.
• The selected contractor must be agreed as acceptable to the Committee.
• One of the impacted lot owners must be the nominee for supervising the contract.
• Progress payments to the contractor must be authorised by the nominee supervising the contract.
• Any consequential contractual issues that have a cost impact will be recovered as a lot expense from the lot owners.

The benefit for the lot owners was that a single contract for all four lots was cheaper than if the lot owners engaged with a contractor individually.  Additionally, the lot owners were happy in the knowledge that the full contract amount was collected upfront from all lot owners and held by a trusted party before the contract was signed.  The benefit for the Body Corporate was ensuring that the lots were brought to a good standard of condition using a contractor that was acceptable to the Committee.

You can read the full case here.