The Bane of a Body Corporate
When driving up and down the Gold Coast Highway, you would be remiss to overlook the many towering high-rise buildings that sprawl the coastline. What may be less discernible, however, is the balconies that extend from these buildings – and which provide a vantage point for owners and occupiers to marvel at the seashore.
However, the responsibility for maintaining balconies and the balustrades that enclose a balcony is a contentious issue in community titles scheme living. The (significant) costs which may be involved in the repair and maintenance of balconies and balustrades only add to the issue.
Is a lot owner responsible, at their cost, for undertaking repairs to a balcony, given they enjoy its use? Or is it the body corporate’s responsibility to complete these repairs?
Format Plan Maintenance
The responsibility for maintaining balconies and balustrades is largely dependent on the type of survey plan with which a body corporate is registered, being either a:
- building format plan (“BFP”); or
- standard format plan (“SFP”).
This is because the survey plan will define the boundaries of a lot, which in turn, determines the responsibilities for maintenance within a lot.
Building Format Plan
For lots registered under a BFP, lot boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. In the event a lot is separated from another lot or the common property by a floor, wall, or ceiling, the boundary is the centre of the floor, wall, or ceiling.
Similarly, a balcony area is defined by floors/ceilings, walls and balustrades. Where there is a railing or balustrade, the boundary of the lot will be the outer face of the railing or balustrade.
In the case of a balcony with no upper structural element (i.e. there is ‘open’ airspace above the balcony), the upper boundary will be defined by the extension of the ceiling of the adjoining structure on that lot.
The regulation modules provide that a body corporate is responsible for maintaining, in a structurally sound condition:
- foundation structures;
- roofing structures providing protection; and
- essential supporting framework, including load-bearing walls.
There have been adjudicator orders (see Portside Noosa Waters [2019] QBCCMCmr 623) which have confirmed that a balcony that extends over an area of common property or lot property is considered a “roofing structure that provides protection”.
The effect of this is that a body corporate is generally responsible for maintaining, at its cost, the balcony structures for lots registered under a BFP where they provide “roofing protection” to lower level lots.
However, a lot owner is responsible for maintaining all fixtures and fittings within the lot boundary, including the balcony area, which comprises part of the lot property. This may include any balcony tiles and lights.
In terms of maintaining balustrades, the regulation modules provide that a body corporate is responsible for (among other things) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property.
Where lots are enclosed (i.e. there is a railing or balustrade which encloses or provides a barrier to a balcony area), the boundary of the lot will be the outer face of the railing or balustrade, as confirmed by the Registrar of Titles Directions.
As a result, a body corporate is generally responsible for (among other things):
- maintaining the foundation structures of a balcony, this may include the concrete slabs and balcony columns;
- the waterproofing cavity underneath a balustrade; and
- replacement of the railings, balustrades and parapets which are situated precisely on the boundary of a lot and the common property.
Standard Format Plan
For lots registered under an SFP, land is defined horizontally using marks on the ground or a structural element of a building. The boundaries of these lots will be defined by the measurements shown on the survey plan. The effect of this is that a lot owner is generally, responsible for maintaining (among other things):
- the inside of the lot, including all fixtures and fittings;
- the outside of the building within the lot boundary, including exterior walls, doors, windows and roof; and
- balcony and balustrades, if contained within the surveyed lot boundary.
The first step in determining whether a body corporate or a lot owner is responsible for maintaining a balcony or balustrade is therefore to identify the survey plan with which that lot is registered.
OMB – Specialist Strata Professionals
OMB Solicitors’ specialist body corporate lawyers team has recently seen a number of committees seek advice on the responsibilities for maintaining balconies and balustrades within community titles scheme living.
To ensure bodies corporate understand their statutory obligations and take appropriate action in maintaining the common property in good condition, including any balconies and balustrades which are the responsibility of a body corporate, strata managers and committees should consult with Gold Coast lawyers at OMB solicitors.