The provision of a service to inspect the inside of owners lots is not a function of the body corporate under section 94 and 152 of the Act, as the inspection is of an owners property not common property. The body corporate should not provide that service to lot owners.
The body corporate should inspect the body corporate asset the terminate barrier on the common property and it required “top it up” and maintain things that may affect the barrier.
Summary Section 163 of BCCM Act cannot be used to get access to a lot for the purpose of an inspection of the property to see if the effects of a lot owner’s actions have resulted in conditions that may attract pest.
The lot owner can be reminded of their obligation to maintain their lot and keep it in a clean and tidy condition and can utilise the service at a competitive price at the same time that the body corporate provide a check on the termite barrier. But that service should not be compulsory, or even if paid for by the body corporate.
The precedent is, in Regency Place Lakeside [2002] QBCCMCmr 702, the adjudicator noted that:
An owner might be considered to have contributed to termite damage if [they] fail … to notify the body corporate of evidence of internal termite infestation. In the case of a non-resident owner, this requires that [they] ensure that internal inspections of the lot are undertaken on a regular basis … If there was evidence of termite damage to a lot over a sustained period of time which was not reported to the body corporate, I would have no hesitation in finding a form of contributory negligence on the part of the owner of [that] lot, and determining compensation accordingly.
Reasoning:
The body corporate has a requirement to maintain the common property (section 94 and 152 of the Act) and have to do that requirement in accordance with section 170 of the Regulations.
The body corporate may carry out work if the owner does not do thigs under section 202 of the regulations
(1) This section applies if the owner or occupier of a lot included in the scheme does not carry out work that the owner or occupier has an obligation to carry out under—
(a) a provision of the Act or this regulation, including a provision requiring an owner or occupier to maintain a lot included in the scheme; or (section 210 see below)
(c) the community management statement, including the by-laws; or
(2)The body corporate may carry out the work, and may recover the reasonable cost of carrying out the work from the owner of the lot as a debt.
Owner have an obligation not to
- “ with support or shelter provided by the lot for another lot included in, or the common property for, the scheme.” (Section 165) and
- “ either within or outside the lot, interfere, or permit interference, with utility infrastructure or utility services in a way that may affect the supply of utility services to another lot included in, or the common property for, the scheme.” (section 166)
- And a requirement under section 210 of the Regulations to:
- must keep in a clean and tidy condition the parts of the lot readily observable from another lot or common property.
- maintain the lot in good condition[1].
- The owner of a lot included in the scheme must maintain in good condition the utility infrastructure within the boundaries of the lot, and not part of common property, and, if the utility infrastructure is in need of replacement, must replace it.
Who’s responsible for preventing pests?
Working out who is responsible for pest prevention in a community titles scheme can sometimes be tricky. An adjudicator considered the issue in Pannorama [2011] QBCCMCmr 461, as it related to termites:
Owners are normally responsible for their own termite management when schemes are registered under a standard format plan, and the body corporate is normally responsible for termite management when schemes are registered under a building format plan.
However, the division of legislative responsibilities … mean[s] the individual configuration of schemes can affect this.
The division of legislative responsibilities that the adjudicator refers to are as follows:
an owner’s duties to maintain the following things in good condition:
- their lot
- any areas of common property over which their lot has exclusive use rights, excluding
- common property utility infrastructure (e.g. plumbing and electrical wiring), and
- any other things that the by-law establishing the exclusive use area identifies as the body corporate’s responsibility.
The body corporate’s duties include to maintain the following things in good condition:
- common property
- the following elements of building format plan lots:
- railings, parapets and balustrades on (or for all intents and purposes on) the boundary of a lot and common property
doors, windows and associated fittings in a boundary wall separating a lot from common property - roofing membranes that provide protection for lots or common property
The body corporate must also maintain the following elements of building format plan lots in a structurally sound condition:
- foundation structures
- roofing structures providing protection
- essential supporting framework, including load-bearing walls
According to the adjudicator in Tea Tree Grove At Hendra [2010] QBCCMCmr 518, maintenance responsibilities extend beyond the rectification of damage, to include work that may be reasonably expected to minimise the need for future maintenance. Therefore, it includes a responsibility for reasonable pest prevention, as well as rectification of any damage caused by pests.
Who’s responsible for fixing damage caused by pests?
As you’ve seen, it can be difficult to work out who’s responsible for maintaining things that pests might damage, let alone who’s responsible for rectifying any damage caused by pests. Having said this, there are generally only three alternatives.
- The party with the maintenance responsibility
The party that is responsible for the maintenance of the part of scheme land that has been damaged will generally be responsible for fixing it, where:
- they could have prevented the damage by doing reasonable maintenance
- no reasonable maintenance could have prevented the damage
- reasonable maintenance was done by everyone with a responsibility to do it, but the damage occurred anyway
- no-one else will repair the damage and it needs to be repaired to fulfil their maintenance responsibility.
(Note: this does not stop them pursuing another party for all or part of the costs.)
2. Another party
Another party may be held responsible for fixing damage caused by pests, where:
- they failed to do something that they had a legal responsibility to do, and that failure directly caused the damage (e.g. an owner failed to take reasonable steps to maintain a tree on their lot, and termites from that tree ended up damaging common property—see: Tea Tree Grove At Hendra [2010] QBCCMCmr 518).
- they intentionally did something that caused the damage (e.g. encouraging pigeons to roost in common areas by continually feeding them—see: Mosman Court [2005] QBCCMCmr 393).
3. More than one party
Where multiple parties have contributed to the damage caused—whether by failing to do something they had a responsibility to do, or by intentionally doing something—those parties may all be held responsible for fixing it. The proportion of their responsibility should be calculated by referring to the extent to which their actions caused the damage.
As an example, in Regency Place Lakeside [2002] QBCCMCmr 702, the adjudicator noted that:
An owner might be considered to have contributed to termite damage if [they] fail … to notify the body corporate of evidence of internal termite infestation. In the case of a non-resident owner, this requires that [they] ensure that internal inspections of the lot are undertaken on a regular basis … If there was evidence of termite damage to a lot over a sustained period of time which was not reported to the body corporate, I would have no hesitation in finding a form of contributory negligence on the part of the owner of [that] lot, and determining compensation accordingly.
The commissioner perspective is that termite treatment is the realm of where is occurs[2]
- Inside the lot the cost of the owner
- From outside the cost of the body corporate
There have been adjudication decision that say if the body corporate maintain a barrier and an infestation occurs that cannot be linked to a breakdown of the barrier it is the owner responsibility[3]
The issue is explained in the following
Section 163 of BCCM Act
Gives authorisation of a person to enter must pass a test that “while it is reasonable necessary” to either
- to inspect the lot or common property and find out whether work the body corporate is authorised or required to carry out is necessary
- carry our the work, authorised or required to carry out is necessary
For an inspection to be “while it is reasonable necessary” the work the body corporate has to inspect for must be authorised or required to carry out is necessary. In terms of doing work if a lot owner does not maintatin 220(2) only say the body corporate ”may” carry out work, so that is not being “required”. For the work to be “authorised”it would have to be as a result of a motion and that involves if that motion wa a reaonable decision if there is not “evidence” that the owner has not maintained the lot.
The owner is required to maintain at lot in good condition, but what would be reasonable necessary to allow body corporate to inspect if the lot has been maintained?
Some evidence that the lack of maintenance is causing a problem, like water leaking out and a professional stating that in their opinion the cause of the leak is in a lot.
There is no evidence in an “inspection” to see it there are any problems.
[1] The owner’s obligation does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
[2] https://smartstrata.com/termite-damage-whos-responsible/
[3] https://belllegal.com.au/body-corporates-termite-infestations-takes-blame/