Strata title property: Who pays for maintenance?

by The FindLaw Team

The University of New South Wales, through the City Futures policy research centre, recently completed a survey of 1,550 strata owners, managers and peak body representatives focusing on strata titled developments, with the results released in a study titled, Governing the Compact City. Some of the more interesting findings from the Report found that 51 percent of owners in strata titled developments have had a dispute with a neighbour; 39 percent had some issue with strata management relating to repairs and who should pay – and if we take into further account that approximately 3 million Australians currently live in strata developments, some of the conclusions of the Report highlights some of the challenges associated with strata property, and in particular, a lack of understanding of the general duties of everyone residing in strata titled developments.

What are the responsibilities and duties of strata title owners?

Some of the findings of the Report underscore that many of the disputes surrounding strata property relates to maintenance and repair issues and in particular, who should pay. First, maintenance for the common property is the responsibility of the body corporate who must manage, control and care for the property that benefits all owners – not just a few.

On the other hand, when a dispute arises between an individual proprietor and the body corporate in regards to the repair and maintenance of the property, the courts must firstly identify the common property, and then take it from there.

In Allen v Proprietors of Strata Plan 2110 [1970] 3 NSWR 339 the issue before the Court related to whether or not the rising damp on the lower ground unit was the responsibility of the owner, or the body corporate. What the Court had to determine was the origin of the dampness and whose responsibility it was to carry out the repairs. The plaintiffs argued that the repairs were the responsibility of the defendant, and that the common boundary was at the centre of the external wall between the unit and the common property. On a related aside, because each jurisdiction requires that the boundaries are set out regarding each lot, and the relationship to the common property – the Court then had to determine whose duty it was to repair the rising damp.

Ultimately, the Court held, with guidance from the relevant legislation, that it was the duty of the body corporate to maintain the common property and to keep it in serviceable repair. So the cleaning of the drains after a heavy downpour was the domain of the body corporate, while in terms of the common boundary, the courts would need to refer to any relevant State legislation which can outline that the common boundary may be outside, the middle, or inside of walls, floors and ceilings.

Financial contributions in strata titled property

Issues relating to financial contributions towards the maintenance and repairs necessary to the common property may be an area that is particularly fraught, and in Julian-Armitage v The Proprietors Astor Centre [1988] QCA 111 the issue put before the Court was whether the owner of the lower ground unit (the appellant) had to share the maintenance costs in relation to the operation of the lifts servicing the other units in the plan – despite the appellant having no use for the lift.

The Court held that the appellant did have to make a contribution to the body corporate for the upkeep and maintenance of the common property – which included the sharing of the costs of the electricity used to operate the lifts, despite not having any use for the lifts, personally.

How are disputes resolved in strata titled property?

As noted earlier, 51 percent of owners in strata property have had a dispute with a neighbour, therefore, the appropriate dispute resolution procedures must be in place to ensure that disagreements are appropriately dealt with.

Jurisdictions such as New South Wales will have a process in place that begins with mediation or a hearing conducted before a relevant body, with the goal of resolving any disputes before the absolute final step of conducting a hearing in the Supreme Court, who can only deal with questions of law. While in Victoria and South Australia, a matter will first be heard by the Magistrates Court, and in Queensland, the first stop for disputes will be before a Commissioner.    

The UNSW Report highlights that matters involving property can regularly give rise to disputes. Therefore, if you do find yourself in a difficult position relating to a property matter, please seek the help of a lawyer who’ll be able to assist.



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