Q&As from building format plan maintenance webinar

Building format plan maintenance

How do I get a copy of my survey plan?

To get a copy of the survey plan for your scheme, contact Titles Queensland – phone 07 3497 3479.

What is the boundary wall?

The boundary wall is usually defined by the dark line on the survey plan in a building format plan. The Land Title Act 1994 states the boundaries are the centre of the floor, wall or ceiling structures.

How is "good condition" defined?

Good condition is not specifically defined in the body corporate legislation. An owner or the body corporate could rely on an assessment or report from a qualified expert in the relevant area of maintenance for a definition of good condition.

How do I determine the boundary of my lot? - is the body corporate responsible for the front door??

To determine the boundary, look for the dark line on the registered survey plan. If the dark line marks the wall with the front door as a boundary wall, the doors, windows and associated fittings located in a boundary wall between a lot and common property are usually the body corporate’s responsibility.

Please define "private yards". Do you actually mean exclusive use?

Private yards and exclusive use areas are two different things.

Private yards are defined as a part of a lot, unlimited in height and depth, being open space at ground level and which immediately adjoins another part or parts of the same lot. The inclusion of a private yard in a building format plan has the effect of creating an extra part to the lot outside the walls at ground level. The boundary of the private yard, between another lot or the common property, is defined by survey marks or pegs on the ground. The walls that are normally the boundaries in a building format plan are no longer the boundaries on the sides of the building where the private yard is located. Private yards can only apply to schemes built after July 1997.

Exclusive use areas are still part of common property and are not part of the owner’s lot. They are defined by an exclusive use area sketch plan on the community management statement (or registered with the exclusive use by-law for pre-1997 schemes). The walls of the building remain the boundary walls. Under the Titles Queensland Registrars Directions for the Preparation of Plans, the boundaries in an exclusive use area are limited in height and depth from the ground up to the projected ceiling boundary height of the lot to which the by-law attaches.

If the walls are the owners responsibility in a lot with a private yard and deck, does that mean the owner might have to paint ground floor and the body corporate the upper levels of a two story lot?

Private yards are at ground level. A deck above the ground may be located within a private yard or marked as part of the lot using the balustrading as the boundary. If the scheme has a ground level private yard, the boundaries are unlimited in height and depth. In a two-story lot, the whole of the exterior building wall on the side with the private yard would be most likely located within the boundaries of the owner’s lot. The owner must paint the parts of the walls that are inside the boundaries of their lot (Section 211, Standard Module).

If the yard around the deck is an exclusive use area, refer to the wording of the exclusive use by-law. The upper limit of the exclusive use area is usually to the projected ceiling boundary height. Painting the full wall may be the owner’s responsibility if the wording of the by-law makes the owner responsible for maintenance (Section 192, Standard Module).

When there is a private yard, should maintenance of a building’s wall be excluded from sinking fund forecast, therefore lowering owners’ sinking fund contributions?

The body corporate must include reasonable and necessary expenditure for maintenance of common property in the budget. Painting the walls in a private yard is an owner’s responsibility and is usually not part of the body corporate responsibilities. Adjudicators have stated in multiple orders that lot owners’ maintenance should not be allowed for in the body corporate’s sinking fund budget. All owners could have lower sinking fund contributions if there is less to maintain by the body corporate.

In our Survey Plan we have a “Courtyard” inside the solid dark line. Does this means it is a private yard. Or does the act require the words private yard?

A courtyard is defined separately from a private yard but is also part of a lot. The Titles Queensland Registrars Directions for the Preparation of Plans states a courtyard is a part of a lot, predominately paved and usually at ground level, and which immediately adjoins another part or parts of the same lot on the same level and usually no greater in area than that lot. The features bounding a courtyard need not be a wall but must be sufficient to clearly define the area.

Where there is an unroofed courtyard that is part of the lot, is the projected ceiling line considered to the top boundary line for the courtyard?

The Titles Queensland Registrars Directions for the Preparation of Plans states for part of a lot like a courtyard or balcony where there is no upper structural element, this shall be defined by the extension of the ceiling of the adjoining part of the lot.

Although I am responsible for the plasterboard inside my unit, should the body corporate pay for damage to my plasterboard ceiling caused by a leaky roof? The roof has been repaired by the body corporate?

In a building format plan, the roof structure and roofing membrane is the body corporate’s responsibility to maintain in good condition. However, if the roof leaks due to an event causing damage like a storm, the body corporate’s building insurance may cover water damage inside the lot.

If the leak was caused by a failure to maintain the roof in good condition, the body corporate may be liable to repair any owner’s damage to their property that is not covered by the building insurance. An owner can seek that the body corporate either carry out the repairs or reimburse them for the repairs. If there has been a contravention of the Act or the by-laws, an adjudicator can make an order about the repair of damage to property under Section 281 of the Act.

Do the lot owners always have to provide written reports or proof that the maintenance is structural or roof leak?

If an owner wants the body corporate to carry out a structural repair, it is a good idea for them to obtain a builder’s report or other evidence that the repair is required. This may assist in demonstrating the owner’s attempts at self-resolution (ie asking the body corporate to take the action the owner wants supported by the builder’s report) and evidence of a breach of the legislation. If the body corporate refuses to carry out the maintenance, this evidence may also provide supporting grounds if the owners lodges a dispute resolution application with our Office.

If you need access to an upstairs lot to get an engineers report how can you do that against the upstairs owners wishes?

If areas of another lot or common property need to be accessed to provide a report, the owner may consider submitting a motion to the body corporate to ask them to vote to obtain a structural assessment or engineering report. The body corporate can give notice to enter lots or exclusive use areas under Section 163 of the Act if they need to get an inspection done to obtain the report.

This may also assist in demonstrating the owner’s attempts at self-resolution (ie asking the body corporate to take the action the owner wants) if they lodge a dispute resolution application.

If an owner breaches a membrane on a roof top garden by changing tiles, etc, does the owner then become responsible for leaks resulting from that breached membrane.

In a building format plan, a roofing structure and an original roofing membrane providing protection for lots and common property is normally the body corporate’s responsibility to maintain in good condition. However, if the owner damages the roofing membrane, they may be liable for any damage from water leaks.

If there has been a contravention of the Act or the by-laws causing damage to property, an adjudicator can make an order about the repair of damage to property under Section 281 of the Act.

Are the maintenance responsibilities for a patio the same as for a balcony?

A patio can be the same type of structure as a balcony, whether ground level or higher up in the building. The same maintenance provisions apply.

Is a deck sub-floor that is within a lot the responsibility of the BC?.

The body corporate is only responsible for load bearing walls and supporting framework inside the boundaries of the lot. The owner is responsible for the non-structural maintenance of the deck if it is located inside the lot boundaries.

Is there a definition of what qualifies as ‘structural’ maintenance (and what does not)?

Structural maintenance is not specifically defined in the body corporate legislation. A qualified expert in the relevant area of maintenance may be able to give a definition of structural maintenance.

Is the owner responsible for maintenance of solar panels erected on the roof a 2-storey townhouse, for benefit of that one owner? Is the BC required to take out insurance as part of its structural insurance policy?

Owners are responsible for the maintenance of their improvements to common property unless excused by the body corporate (Section 187, Standard Module). An owner must report the nature and value of any improvements to their lot or common property so the body corporate can add the improvement to the body corporate’s building insurance (Section 202, Standard Module). The owner who makes the improvement will have to pay for any difference in the insurance premium resulting from the improvement.

If there are no existing waterproofing membranes in an older building does one need to be installed for any new renovations to wet areas??

You can confirm the requirement for waterproof membranes in wet areas with Building Codes Queensland by contacting them through the Queensland Government call centre on 13 74 68. This is not part of the body corporate legislation.

Is the BC responsible for removing the tree roots from a tree on common property causing damage to pipes in an exclusive use area, and repair the damage?

Usually, the body corporate would be responsible for maintaining a tree on common property in good condition. Under the ground in a building format plan is common property, including in an exclusive use area. Pipes located under the ground would be common property in most cases in a building format plan. The body corporate may be responsible to repair any damage to common property (eg foundations) caused by lack of maintenance to a common property tree. If any damage is caused to an owner’s property within their lot boundaries or in the exclusive use area, the body corporate may be liable to repair that as well.

Should the body corporate reimburse an owner for the cost of a report required for a defect on the common property?

An owner should always attempt self-resolution first. If they then have to get an expert’s report about the defect, they may wish to consider submitting a motion to the body corporate to be reimbursed.

Does a lot owner need body corporate permission to use roof space for storage or other uses?

The roof cavity in a building format plan is usually considered, common property. The owner would usually need to seek authorisation to make an improvement to common property. The by-laws for the scheme may regulate storing items on common property as well, and may require an occupier to seek approval. Fire safety regulations must be complied with if they apply to what is being stored.

Is an owner responsible for the damage caused by a leaking patio cover on a rooftop area when they have previously been advised there is an issue?

If the patio cover was installed by the owners, and is their responsibility to maintain as an improvement, the owner may be liable to repair any common property or damage to another owner’s property. Other owners or the body corporate could request the owner of the patio cover either carry out the repairs or reimburse them for the repairs. If there has been a contravention of the Act or the by-laws causing damage to property, an adjudicator can make an order about this under Section 281 of the Act.

The roof of our patio is the underbelly of the floor of the patio above. Who is responsible for the painting of the ceiling?

If the patio is part of the owner’s lot (within the boundaries shown on the survey plan), the non-structural maintenance of the patio like painting walls and the ceiling area would usually be the owner’s responsibility.

If owners have installed pergolas on the top floor and ground floor and there is damage by a storm, who is responsible?

Body corporate building insurance will usually cover damage to the building or fixtures and fittings if the damage is caused by an insurable event. If the event caused damage to only one lot, the owner may have to pay the insurance excess.

Damage from an event which is covered by insurance is different from the owners being responsible to generally maintain their improvement to their lot or common property in good condition.

Who is responsible for maintaining fences in a community titles scheme?

The boundaries are usually the floor, walls and ceilings in a building format plan. Land outside the walls is usually common property unless the area is marked on the survey plan as a private yard.

If the fence is between two exclusive use areas (which are not part of the lot), maintenance would usually be shared between the two owners. The wording of the relevant exclusive use by-law may state maintenance responsibilities. If the by-law wording is silent, the owner is responsible for non-structural maintenance. Fences around exclusive use areas are usually the owner’s responsibilities unless the wording of the by-law states otherwise. (Section 192, Standard Module).

If the area of land outside the wall is marked as a private yard (ie it is part of the owner’s lot) on the survey plan, dividing fences (installed by the builder at establishment of the scheme) are 50/50 shared maintenance expense between the two parties on either side of the fence. EG two lot owners or lot owner and common property.

The fence around the whole scheme land is the body corporate’s responsibility under Section 311 of the Act and the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Where a significant majority of front doors are on the boundary wall, for consistency and simplicity, would it be acceptable for the body corporate to maintain all front doors (i.e. including those that are inside the boundary)?

The body corporate must include reasonable and necessary expenditure for maintenance of common property in the budget. Doors located in a boundary wall between the lot and common property are the body corporate’s responsibility (Section 180, Standard Module). Adjudicators have stated in multiple orders that lot owners’ maintenance should not be allowed for in the body corporate’s sinking fund budget.

If lot owners on upper floors hose off their roof/patio area and the water falls onto other lot owner’s patio windows etc, what do you do?

You can enforce the by-laws if there is an applicable by-law registered for the scheme.

Otherwise, you may be able to attempt to resolve the issue directly by attempting self-resolution with the other occupier under the nuisance provision (Section 167, Act).

How do you know what the builder installed when the building is an older one and not documented?

The body corporate should keep minutes of decisions authorising owners to make improvements to their lot or common property or the body corporate being authorised to make improvements. Since 2008, the body corporate has been required to keep an improvements register listing owners’ improvements to the common property (Section 228(3), Standard Module)

The development approval at the local council may also provide information about the original installations by the builder.

Original local authority building approval allowed 2 bedroom plus garage. The garage has since been changed to use as a 3rd bedroom, without structural change.

You can check with the local council whether changing the garage requires council approval.

Check the body corporate by-laws which may regulate whether an owner needs permission to make an improvement (change) the lot.

If an upstairs lot owner installs a spa in their bathroom and then a crack appears in the suspended slab, what is the action the BC needs to take to be able to recover the cost of repairing the slab from the owner of the spa?

The body corporate may need to obtain qualified assessment (engineer for example) to check what caused the cracks.

If the body corporate has evidence that the owner’s improvement to their lot has caused the structural or other damage to the slab, the body corporate can obtain a quote for the repairs. They firstly should attempt self-resolution with the owner. If there has been a contravention of the Act or the by-laws causing damage to property, an adjudicator can make an order about this under Section 281 of the Act.

Exclusive use areas

Who is responsible for the walls, roofing structures and door covers etc that are not associated with common property and are part of an exclusive rooftop area which is part of a lot.

Firstly you need to be sure whether the rooftop is part of the lot or common property under an exclusive use by-law, by checking the plan and the registered by-laws.

The body corporate is only responsible for load bearing walls, supporting framework and roofing structures and roofing membranes inside the boundaries of a rooftop lot installed by the builder when the scheme was built. The owner is responsible for the non-structural maintenance of the rooftop area inside the lot boundaries.

If the area is exclusive use common property, the owner must maintain the area unless the by-law says otherwise (Section 192, Standard Module). However, if the by-law does not state otherwise, the owner is not responsible for:

• roofing membranes that are on part of the common property to which the by-law applies and give protection for other lots or common property
• maintaining in a structurally sound condition structural parts that are on the common property to which the by-law applies and were not built by or for the owner. These are
  • foundation structures
  • roofing structures providing protection
  • essential supporting framework, including load-bearing walls.

You can read more about exclusive use by-laws on our website.

If an owner did not maintain their exclusive use backyard and the BC later discovered that there are tree roots encroaching into and under the unit, who is responsible?

The lot owner with exclusive use or other rights must maintain and pay any operating costs for the exclusive use area—unless the by-law says otherwise (Section 192, Standard Module). Under the ground is common property in an exclusive use area and foundations are usually the body corporate’s responsibility. The body corporate may have to demonstrate that the owner did not maintain the tree and that their actions caused the damage to the foundations.

You can read more about exclusive use by-laws on our website.

Who is responsible for maintaining trees in exclusive use areas? e.g. pruning or removal of tree that has grown too big

The lot owner with exclusive use or other rights must maintain and pay any operating costs for the exclusive use area—unless the by-law says otherwise (Section 192, Standard Module). This can include trimming and pruning trees. Under the ground is usually common property in an exclusive use area. Full removal of a tree might be a shared cost.

You can read more about exclusive use by-laws on our website.

If exclusive use rooftop areas access doors are not fire doors, and the entire frame & door needs to be fully replaced, should the owner pay 50% of the costs as 50% of the door is in the lot.

Whether or not the door is a fire door, the body corporate must maintain doors, windows and the associated fittings located in a boundary wall between the lot and common property in good condition. If the exclusive use by-law wording is silent about maintenance, the owner is usually responsible for non-structural maintenance of doors. Structural maintenance of loadbearing walls or framework usually remains the body corporate’s responsibility.

You can read more about exclusive use by-laws on our website.

Utility infrastructure questions

Please explain why dot point 2 says within the lot and dot point 3 says outside the lot in the information below:

All utility infrastructure in a community titles scheme is part of common property except for utility infrastructure that:

• supplies a utility service to only 1 lot

and

• is within the boundaries of the lot

and

• is not within a boundary structure for the lot.

Dot point 2 – within the boundaries in a building format plan means located within the boundaries of the lot. The boundaries are the floor, wall and ceiling structures under the Land Title Act 1994. For example pipes in an internal bathroom wall backing onto a bedroom are inside the boundaries of the lot as the internal wall is not a boundary structure.

Dot point 3 – the Land Title Act 1994 states the boundaries in a building format plan are the floor wall or ceiling structures. Boundary structures have either common property or another lot on the other side of the structure. So when utility infrastructure is located within the boundary structure (ie in the middle of a floor/ceiling slab, or a wall boundary structure for example) it does not meet point 3.

All 3 points above must be met for the utility infrastructure to not be considered common property, and therefore the owner’s responsibility. Note the exceptions listed on the utility infrastructure maintenance webpage and in Section 180(4) of the Standard Module and Section 20 of the Act.

Individual mains water isolation valves are located inside the airspace of the lot, if these are faulty would this fall back to the lot owner or the body corporate?

If the isolation valves meet the three points in Section 20 of the Act, they are usually not common property utility infrastructure.

Is an intercom located inside the unit the body corporates responsibility to maintain?

The parts of the intercom system that meet the three points in Section 20 of the Act are usually not common property utility infrastructure. The parts that do not meet all three points are common property and are the body corporate’s maintenance responsibility.

Whose responsibility is it to maintain the grey water pipes that travel outside the lot but only service that lot only?

The parts of the grey water pipes that do meet the three points in Section 20 of the Act are usually not common property utility infrastructure. The parts that do not meet all three points are common property and are the body corporate’s maintenance responsibility.

The part of the pipe located outside a lot does not meet the three requirements for it to be the lot owner’s responsibility.

Do you have an FAQ or similar for the situation of a unit above flooding (washing machine hose breakage) leaking water into the unit below. We have much discussion about BC or lot owner’s responsibility and battle between insurance companies.

There is not a specific FAQ, but here are some steps to help the body corporate or owners clarify responsibility.

1. Was the water damage caused by an event covered in the body corporate’s building insurance policy? Water damage usually is covered by the insurance policy. The body corporate can vote to make the owner of the washing machine liable for the insurance excess.
2. If it is not an event covered by the insurance policy, then it is a maintenance question. An owner or occupier must maintain their lot in good condition, including utility infrastructure that is not common property or fixtures and fittings installed for the owner’s benefit. If there has been a contravention of the Act or the by-laws causing damage to property, the owner downstairs can seek that the owner of the washing machine carry out the repairs or reimburse them for the repairs (Section 281, Act).

Is utility infrastructure exclusive to a lot that is within a ceiling void considered to be within the lot and therefore the responsibility in the lot?

Some buildings have a non-structural false ceilings and the boundary structure can be located above that. In some buildings the boundary structure has a void between two slabs for example and pipes and cables may be located within the boundary structure.

Understanding where your building’s boundary structure is located will help you determine whether being located in a ceiling void means the utility infrastructure meets the three points in Section 20 of the Act. If it does meet all three points, it is usually not common property utility infrastructure.

Does the mid-point of the boundary wall extend to the guttering? If so is the body corporate responsible for half the cost of cleaning, painting, and repairing the gutters?

Remember that the boundaries are not just the walls, but the centre of the ceiling structure as well. Most gutters tend to be located outside the wall, sitting on the edge of the eaves, even if they are at the same position as the ceiling structure boundary. Most guttering would usually be located outside the boundaries of the lot. Every building is constructed differently.

If you believe the gutters are sitting on join of the wall boundary structure and the ceiling boundary structure, you would need to determine whether they are considered to be within the boundary structure or not.

For the gutters to be the responsibility of the owner, they must meet the three requirements in Section 20 of the Act – inside the boundaries of the lot, servicing only that lot and not located within a boundary structure. If you can determine that the gutters meet the three requirements then they may be the owner’s utility infrastructure.