Maintenance

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There is still considerable confusion about who is responsible for maintaining which parts of owners corporation buildings.  Unit Plans fall into two categories.  Class A is usually a multi-story apartment building in which the boundaries of the private property units are defined as the centre point of their walls, floors and ceilings with the OC owning the roof and exterior walls. Class B units are usually townhouses standing on their own land, and the owner owns the roof and the external walls and all of the interior. If the unit shares one or more walls with adjacent buildings that boundary falls along the midpoint.

Sometimes units which externally look like townhouses (Class B units) have shared basement garaging and storage, in which case they are usually Class A units.  In a small group of cases townhouses that appear to be Class B are classified as Class A for no observable reason.

Either class of unit may own other areas called subsidiaries, not necessarily physically attached to the main part of the unit, that  nevertheless form part of the unit. These most often are garages, parking spaces, storage areas and balconies.

Under S24 of the UT(M)A the OC must maintain:

  • the common property

  • other property that it holds

  • the defined parts of any Class A building,/which means load bearing structures, walls, columns, footings, slabs, beams (whether or not the defined parts are common property)

  • any part of a balcony on the building/even though they are owned by individual owners

  • if a utility service is the subject of an easement for the potential benefit of all units, facilities associated with the provision of the utility services including utility conduits

  • any building on the common property that encroaches on a unit that is the subject of an easement or

  • as authorised by a special resolution all buildings on all class B units on the units plan.

S146 of the Legislation Act says the use of the word must in S24 means that the OC does not have a discretion to maintain, but is required to maintain.  Another description is a ‘mandatory obligation’ to maintain.

Maintenance of utility services is often misunderstood.  That provision is regularly misread to delete all reference to easements and is taken to mean that if a utility service is for the benefit of a single owner or a small group of owners maintenance is the sole responsibility of the owner/s, whether or not it is possible for the individual owner to undertake the maintenance.  ACAT Presidential Member Daniel in Riley v UP706 explained the meaning of that part of S24.  Riley’s unit, at the low point of the site, is subject to an easement for the benefit of the OC, whereby water can drain to a sump on his property and from there to storm water.  The sump was inadequate, pipes were damaged and Riley’s unit was subject to flooding. The EC refused to rectify the problem.

Presidential Member Daniel took the view that the OC was benefitted by the sump at the low point of the site and the OC was required to maintain and improve the sump and the associated drainage lines so the common property was effectively drained and the unit was not subject to flooding.

So it appears that based on S24(1)(e) the OC cannot claim that owners are required to maintain utility services on common property that service only their unit. The answer in any case will depend on careful reference to the plans.  Many OCs have taken the view that it is in the interests of the OC to take a very generous view of the maintenance of utility lines that lie on the common property and service a unit to ensure the integrity of the common property and common property utilities and minimize damage to the common property.  One the service is restored, the EC can work out whether the unit owner contributed to the event and seek compensation or whether the fault lay on the common property.

Owners are required to maintain their own units by the Default Rule 3

1.3  Repairs and maintenance

(1)   A unit owner must ensure that the unit is in a state of good repair.
(2)   A unit owner must carry out any work in relation to the unit, and do anything else in relation to the unit, that is required by a territory law.

Maintenance Plans

S24(1) was added to the UT(M)A from 1 November 2020 and requires that an OC must prepare a Maintenance Plan that takes into account the developer’s maintenance schedule and includes matters prescribed by regulation.

The theory is that the Maintenance Plan provides the hard data on the projected life of a components of the property, and feeds into the Sinking Fund Plan.

The Unit Titles (Management) Regulations requires at S4A that a Maintenance Plan must include:

  • a plan for the maintenance and inspection of systems, equipment, structures and other things on the common property if the maintenance and inspection is reasonably required to avoid future damage to, or failure of, the thing including

    • exterior walls, guttering, downpipes and roof;

    • pools and surrounds, pool fencing and gates;

    • air conditioning, heating and ventilation systems;

    • lifts;

    • fire protection equipment including sprinkler systems, fire alarms and smoke detectors;

    • security access systems;

    • electric vehicle charging stations and associated infrastructure;

    • embedded networks and micro-grids;

    • solar panels and associated equipment and any other sustainability infrastructure;

  • as provided by the developer or as reasonably available:

    • the warranties for systems, equipment or other things mentioned in the plan; and

    • any manuals or statement of maintenance requirements provided by the manufacturer of the system, equipment or other things mentioned in the plan; and

    • the name and contact details of the manufacturer and installer of the system, equipment or other things mentioned in the plan.

S25 requires the developer of a units plan must prepare a schedule for maintenance of the common property.  However, the owners corporation is not required to comply with the developer’s maintenance schedule in meeting its maintenance obligations for the common property under section 24.

In any legal proceeding the developer’s maintenance schedule may be considered for the purpose of determining whether or not a defect in, or damage to, a building could have been avoided by taking stated action but the provision of the developer’s maintenance schedule to the owners corporation does not affect any obligations of the developer in relation to structural defects, warranties or similar matter in relation to the building.

The Unit Titles (Management) Regulations (S4B) provides the developer’s maintenance schedule must include

  • a schedule for maintenance and inspection of systems, equipment, structures and other things on the common property

  • the warranties for systems, equipment or other things referred to in the schedule

  • any manuals or statement of maintenance requirements provided by the manufacturer of the system, equipment or other things referred to in the schedule

  • the name and contact details of the manufacturer and installer of the system, equipment or other things referred to in the schedule.

The developer must give the first AGM the developer’s maintenance schedule and any plans, specifications, diagrams or drawings that relate to the design or service of the units or common property of the units plan, including the development approval and any condition to which the approval is subject.

S168 provides that OCs in existence before 1 July 2021/have until after the second annual general meeting of the owners corporation after 1 November 2020 to develop a Maintenance Plan.

Many older OCs are in a quandary about how to construct a Maintenance Plan, especially Class Bs.  They have a Sinking Fund Plan that recognises all their common property components and the average life of those components.  They can’t see what a Maintenance Plan consequently records, how it informs the Sinking Fund Plan and what it does to assist them.  Some are actively trying to ensure that instruction books, warranties, invoices etc for new components are centrally recorded but that does not seem to accord with the new requirements in the UT(M)A.

Some managers have drawn up a check sheet called a Maintenance Plan on which minor maintenance tasks are recorded and later checked off.  Some owners are already complaining the check sheet has become a focus of activity rather than organising a handy man to actually fix the minor maintenance issue. 

While for many new OCs and those still under construction the Maintenance Plan has a clear role.  For older OCs the Maintenance Plan is a matter of ongoing confusion.