When an Owner Fails to Perform Required Maintenance in a Body Corporate Scheme

October 7, 2024

Home » Maintenance » When an Owner Fails to Perform Required Maintenance in a Body Corporate Scheme

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In body corporate scheme similar maintenance obligations exist for both owners and the body corporate.

Maintaining your lot in ‘good condition’ is not optional. Under the body corporate law lot owners must maintain their lot, and if they have exclusive use of common property, the exclusive use by-laws may assign responsibility for this area as well.

This article explores the consequences and processes in place when an owner in a body corporate fails to perform the required maintenance to their lot.

What does ‘good condition’ mean?

An owner typically is responsible for maintaining their individual lot in ‘good condition’ including replacing utility infrastructure when needed. This is the standard set by the Body Corporate and Community Management Act 1997.

The legislation also requires that owners keep all parts of their lots visible from another lot or the common property, ‘clean and tidy condition’.

The interpretation of ‘good condition’ depends on the individual case.

For a 30-year-old car to be in good condition today, it should have been regularly serviced with oil changes and new tyres, regularly cleaned with parts replaced as they break. For a car, ‘good condition’ is a higher standard than simply being roadworthy. ‘Good condition’ requires all its key features to work, including the radio and air-conditioning. It does not need to look in showroom condition, and it can have fair wear and tear.

What parts of the lot does ‘good condition’ apply to?

The ‘good condition’ law applies to all parts of a lot, even if the issue is not directly affecting other lots or the common property.

In practice, the body corporate often finds out about lot maintenance issues when they start to affect others

Some common examples of lot owner responsibilities include:

Electrical wiring, lights and switches, power points
Electrical RCD – safety switch
Built-in appliances – oven, cooktop, rangehood
Ceiling fans, bathroom or laundry exhaust fans
Plumbing – basins, showers, toilets, water meters, shut-off valves
Smoke-alarms
Balcony tiles and grout
Internal painting 
In a standard format plan lot – exterior walls, doors and windows, railings, roof, gutters
Gardens within exclusive-use courtyards, unless the exclusive use by-law requires the body corporate maintain the specific area.

Does the lack of maintenance need to impact others?

No. It is not relevant whether the issue of a poorly maintained lot impacts others or not.

If a toilet in the lot stops flushing, the lot owner must repair it, even if that toilet is in a guest bathroom and not regularly used. The lot owner cannot choose to leave the toilet in a non-functioning state.

As all owners jointly own the development, all owners are affected directly or indirectly if one or more lots are not in good condition. These impacts may be obvious, or they may be in the form of reduced property values, increased administrative cost or increased insurance costs.

What happens when an owner fails to perform required maintenance?

If a lot owner fails to maintain their lot in ‘good condition’, the body corporate may step in and carry out the maintenance on behalf of the lot owner.

The body corporate may then recover the reasonable cost of carrying out the work from the owner of the lot as a debt.

Example 1 – Leaking shower

Lot 5 has a large area of water damage on their apartment ceiling. The bathroom of lot 10 is directly above the stain area.

The body corporate committee brings this potential leak to the attention of the owner of lot 10. Bathroom and shower waterproofing is the obligation of the lot owner to maintain. The fact that water is leaking into the unit below indicates that some part of that system in lot 10 is not in ‘good condition’.

The body corporate writes to the lot 10 owner to ask them to satisfy their obligation to engage the necessary experts to bring lot 10 bathroom into ‘good condition’, identifying and fixing the leak within a reasonable time.

The owner of lot 10 will also be liable to repair any damage to lot 5 which is caused by the leak in lot 10, which increases the urgency of the situation.

If the owner of lot 10 does not respond, or if they fail or refuse to carry out the work, the body corporate may:

Issue an entry notice to the owner of lot 10
Gain access to lot 10 – including by locksmith if access is not provided by the owner
Have a plumber inspect lot 10 to determine the source of the leak
Make repairs which may range from a simple plumbing fix, to removal and reinstallation of the shower waterproofing, tiling and shower screen in lot 10 bathroom
Charge the cost of all of the work to the owner of lot 10.

Example 2 – Smoke detectors not working

Townhouse 1 is structurally independent from the other townhouses and was constructed with interconnected smoke-alarms to meet fire regulations.

Townhouse 1 owner carries out internal painting and removes the smoke alarms and reinstalls them in a different location which now does not comply with the fire regulation.

Even though this is not causing damage to townhouse 1, other townhouses, or common property, the smoke-alarm system is no longer in ‘good condition’.

The interpretation of ‘good condition” needs to take into account the purpose and function of the thing. For a smoke alarm system to be in “good condition” it must provide the interconnecting smoke and fire warning function for which it was installed.

The lot owner is required to reinstall the smoke-alarm system to meet the fire regulations. If they fail to do so, the body corporate may enter their lot and carry out the work and charge that cost to the owner.

Legal liability

Owners may face other legal liability, aside from the cost of the body corporate correcting the issue, for failing to keep their lot in ‘good condition’.

In a scenario where a relatively minor water leak causes a significant concealed black mould problem for a lot which shares a common wall, the instigating lot may be liable for:

Repairing damage to the affected lot – wall repair, mould treatment, decontamination
Relocation and temporary accommodation costs for the residents of the affected lot
Costs for damaged property and furniture of the affected lot
Loss of rent to the affected lot owner while the work is carried out
Medical expenses of the affected lot if illness or injury is caused by the mould

Even in cases where an insurance policy may respond, if an owner has failed to maintain their lot in ‘good condition’, the insurance company may seek to recover costs from that owner.

Protecting the integrity of the scheme

By carrying out maintenance that an owner fails to perform, the body corporate ensures that the overall integrity of the building and common areas is preserved.

This maintenance obligation and enforcement is a critical tool in managing risks to both property and residents, ensuring the safety and functionality of the community as a whole.

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