As a general principal maintenance of common property is the body corporate responsibility.
However, from above if the common property is to a single lot owner then it is the responsibility of the lot owner.
So,for example, work maintenance of tap to the back of a lot is the cost of the owner, because (1) is a utility (water) supplied to one lot.
A lot owner is responsible for maintenance for of there lot, they own the lot.
Lot owners can get improvement they get authority to make on common property (from the regulations)
Note that this applies
- If authority has been given
- To the “an owner who is given authority”
The implication are that (1) if authority has not been given or (2) the owner of the lot is not the owner who is given authority, that being that the owner give authority ahs sold, then the liability is not passed to the next owner, unless it was a condition on which the owner was given authority (which to be help in law would require a signed deed and notification to the next owner, and signing if another deed).
This has been supported in adjudicator’s decision, in Belle Court [2006] QBCCMCmr473 (29 August 2006) (‘Belle Court’) the adjudicator noted:
“there was nothing to be found in the body corporate records (as now shown to me) which shifted responsibility for it onto the Applicant. … even if the purchaser could see that the railing was falling apart, it still remains a body corporate responsibility”
Like wise adjudicators have consistently held that bodies corporate are entitled to issue contravention notices to the current owner of a lot for breaches caused by a previous owner. This would then allow the body corporate to impose condition on approval.
For example, in The Peninsula [2021] QBCCMCmr 121 (17 March 2021), the Adjudicator relevantly stated:
“[139] I agree with the applicant’s arguments that a lot owner may ‘inherit’ a situation that may constitute a by-laws [sic] contravention. My position is formed after considering the earlier precedents. My position is also formed on the basis of logic.
[140] There is no logic to an argument that if one lot owner is found to breach a by-law today by erecting an unapproved fence (where approval is required), for example, but another who purchases a neighbouring lot tomorrow with an identically unapproved fence already in place could enjoy its use without sanction. That would be contrary to the spirit and intent of the legislative regime. Owners need to be treated equally, for what they might see as good and bad. When owners purchase properties in such circumstances they are taken to be cognisant of the provisions of the CMS and by-laws and if their property, as in this instance, is non-compliant, they must remedy the situation”.
However, in Somerset Gardens the condition that can be put on an authorisation are governed by relevant by-law, 20.4 that states:
If would be a reasonable argument that any condition that passes responsibility of maintenance from one owner to the next does not ensure any of the factors listed in by law 20.4 (a) to (f).
Such an argument would have strength in the fact that the condition of responsibility of maintenance cost was considered relevant enough to be specifically addressed in that the by-laws in force before 2020, at the relevant parts, when those by-law state:
- (e) As a condition of the Applicant, the Applicant consents to the following terms:
(xiv) reference to the Applicant, includes the Applicant’s assigns, attorneys, agents, and successors in title (including, but not limited to future owners of the lot).
27.1(i) The Proposed Works shall only be commenced upon the written approval of the Committee, and on execution by the Applicant of such written documentation required by the Committee (including, but not limited to a Deed of Undertaking, binding the Applicant and its successors in title to the conduct of the conditions required of the Committee’s approval of the Application).
27.1(j) If the Committee approves the Application, the Committee shall record a copy of the written approval with the Body Corporate records.
27.1(k) It is and shall remain the obligation of the Applicant and its successors in title to ensure any potential purchasers and/or successors are informed and understand the conditions of any approval given.
27.1 (l) Any costs or financial obligations imposed by the Committee on an Applicant (or its successors in title) shall be limited to reimbursement of expenses or amounts incurred by the Body Corporate in dealing with the Applicant (such as advisor, inspector, certifier and Council fees) and/or rectifying (such as trade persons, products and alike) damage or impairments to the Body Corporate caused by the Proposed Works.
271.(q) Any monetary liability imposed as a consequence of the above, including but not limited to maintenance or other conditions associated with the Proposed Works, constitute a debt recoverable against the Applicant (and its successors in title), in accordance with section 173 of Accommodation Module.
However, the by-laws that relace it n 2020 did not include the relevant conditions.
Section 197(3) of the BCCM (accommodation module) Regulations 2008 required the body corporate to keep
“keep a register for recording each authorisation for the owner of a lot included in the community titles scheme to make an improvement to common property for the benefit of the owner’s lot.”.
Then section 197(4) (c)
“any conditions, including conditions as to use of the common property by other persons, stated in the authorisation”
The approval of any work in by-law 27.1(e) was conditional on factors, but none of those factors were the execution of the deed mentioned in by-law 27.1(i). The situation was that if, the committee did not asked for the Deed of Undertaking, binding the Applicant and its successors required in by-law 27.1(i) the work on the improvement should have not started. As it did start the only action would have been a notice of contravention under section 182 at the time. After that fact, when the work has been completed. This only “evidence” a “Deed of Undertaking, binding the Applicant and its successors”, was made. Would be the recordint in the “Register of authorisations affecting the common property”.
As, if it was a requirement of the Regulations to the Act and the by-laws to record any authorisation in the “Register of authorisations affecting the common property” it can only be assumed that the body corporate sought to comply with the Act and the committee acted to it’s code of condition to do the same.
This means that if “the register has a record of the authorisation”, but not record of any conditions of deed of “Deed of Undertaking, binding the Applicant and its successors”, then such a condition or deed was not requested and is not a condition of the approval.
The failure of the “the register has a record of the authorisation”, to not record of any conditions of approval could also be such that if a condition was made that the body corporate gave approval for the improvement to contravene certain by-laws, then the approval given would be in contravention of section 177(2)(c)
“ the body corporate is satisfied that use and enjoyment of the improvement is not likely to promote a breach of the owner’s duties as an occupier”.
Specific to the by-laws of Somerset gardens, the owner or occupier where there was an improvement , would be in contravention with the by-laws being
By-law 11 Garbage
Thus there be a challenge to any approvals that were made that without those body corporate approvals.
The situation can be complicated if “the register has a record of the authorisation” has not record of any authorisations.
Therefore any such improvements that are in existence are not authorised and the owners would have to have action to either (1) remove or (2) seek approval. That brings the body corporate back to the situation that in giving approval is cannot ask for conditions of a Deed of Undertaking, binding the Applicant and its successors, as that would be contrary to the existing by-law.