We often receive questions about who is responsible for the maintenance of utility infrastructure within community titles schemes. Working out this responsibility is not always simple as the circumstances of a specific scheme may change the answer. Below provides general information only. Lot owners or bodies corporate should seek their own advice from appropriately qualified people, as each situation is different.
What is utility infrastructure?
It is important to understand what utility infrastructure is when making decisions about responsibility for maintenance. Utility infrastructure can include the pipes, cables, wires, sewers, drains, plant and equipment which supply a utility service to the lots or the common property in a community titles scheme. Utility infrastructure can also mean a device for measuring the reticulation or supply of a utility service.
Adjudicators have stated that lifts are types of utility infrastructure.
How do you know if the utility infrastructure is common property or an owner’s responsibility?
Section 20 of the Body Corporate and Community Management Act 1997 (BCCM Act), provides that all utility infrastructure in a community titles scheme is common property except for utility infrastructure that:
supplies a utility service to only one lot; and
is within the boundaries of the lot; and
is not within a boundary structure for the lot.
Note that all three of these points must be met for the utility infrastructure to be an owner’s responsibility, not just one of them.
Water damage inside a lot
Water damage can come from various sources such as leaking roofs, leaking pipes, failure of a waterproofing membrane, drummy or old tiles. The source of the water leak needs to be determined before responsibility for the leak, and any resultant damage, can be ascertained.
Scenario
An owner or occupier of a lot has noticed water stains appearing on the ceiling of their bathroom. They suspect that there is a leaking pipe creating the damage. Not knowing where the leaking pipe is located creates some uncertainty about the responsibility of the repair.
Determining responsibility for the water leak
In the first instance, an owner may wish to get their own plumber’s report to check that there is nothing inside their lot causing the water damage. For example, there may be some form of utility infrastructure above a false ceiling that belongs to that owner and may influence where the responsibility falls.
If an owner reasonably believes that the leak is coming from the lot above theirs, they can:
Access the body corporate records to get a copy of the body corporate roll to determine the contact details of the lot owner above them; and
Directly contact the lot owner above and ask them to fix the leak. The owner may wish to explain the damage occurring to their lot and provide a reasonable timeframe for the other owner to fix the leak and any resultant damage.
If the lot owner above does not cooperate, the owner may consider submitting a motion to the committee to authorise an inspection of the lot above. The body corporate has the power to enter a lot to investigate a maintenance issue such as a water leak, to ascertain if the leak could be a body corporate responsibility to fix (section 163, BCCM Act).
Alternatively, if the owner reasonably believes the leak is the responsibility of the body corporate, they may submit a committee motion requesting that the body corporate repair the leak. This committee must act reasonably in considering any such request (sections 94 & 100, BCCM Act).
It is important that all parties act swiftly in relation to water leaks. A water leak that doesn’t get repaired could cause higher water bills for all owners, damage to common property or another owner’s lot, or issues with insurance cover.
Insurance
Once responsibility for the water leak is ascertained, the relevant parties can consider whether the resultant damage from the leak is covered by the body corporate or owner’s insurance policy.
While the body corporate’s building insurance will not cover the maintenance of utility infrastructure the policy may cover the water damage and repair. If it is found that the leak is from another owner’s utility infrastructure, the body corporate can vote to make that owner liable for the insurance excess, even if the damage is to another lot or common property. Alternatively, if the leak is from a body corporate pipe, the committee can vote for the body corporate to take on the liability for the excess (section 203, Standard Module).
If water damage also occurs to an owner’s contents, such as carpet or furniture, the owner may have to make a claim on their own contents insurance policy.
Liability for damage
If the water damage repair is not covered by an insurance policy, or costs less than the excess to repair, then it becomes a question of maintenance. 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. Likewise, the body corporate must maintain common property utility infrastructure in good condition.
If there has been a contravention of the Act or the by-laws causing damage to property, the affected party with the damaged property can seek that the party responsible for the leaking utility infrastructure carry out the repairs or reimburse them for the repairs if they have already been completed (section 281, BCCM Act).