Body Corporate Balconies: Common Property or Part of the Lot

Body corporate balconies cause a surprising amount of drama. This Melbourne waterproofing website reports:

A recent insurance survey has shown that “Balcony Waterproofing” has the highest failure rate of all areas in the building envelope.

As you’ll see below there are many common ways in which balconies fail. This article will explore the issues that arise with balconies and who is responsible for rectification.

Please do note that balconies and their components are complex. Much of what I’m discussing is a simplified overview to give some direction and its entirely possible I’ll say something that’s too simplistic or even misleading. In all situations you’ll need to check with your building professional.

So … Is It Common Property or Part of the Lot?

A balcony has several key components:key components of a body corporate balcony

  • the balustrade
  • surface tiling (or other material)
  • waterproof membrane
  • the concrete slab

The balustrade is the exterior boundary of the building therefore is common property and body corporate responsibility.

NOTE: If the balustrade looks out over an exclusive use area it is not considered on the boundary of common property and will be lot owner responsibility. Thanks to Michael for the tip!

The surface tiling is wholly contained within the lot and is lot owner responsibility.

Waterproof membranes are also contained within the lot. However, Regulations require the body corporate to maintain in good order roofing membranes that are not common property but that provide protection for lots and / or common property. That includes balcony waterproof membranes.

The boundaries of the lot are half way between the walls, floor, ceilings and doors, meaning midway in the concrete slab two lots, or a lot and common property meet. When infrastructure serves two or more lots it is common property and body corporate responsibility.

Doors or Windows onto a Balcony

balcony doorsIn majority of cases the balcony is part of the lot.

The doors that access the balcony are wholly contained within the lot and are lot owner responsibility.

Any windows from the lot onto the balcony are also lot owner responsibility.

Occasionally balconies are allocated as exclusive use. Refer to your by-laws for the terms of the exclusive use allocations.

If the area is exclusive use it usually, subject to the terms of the allocation, comes down to a question of what is “maintenance” and what is a “structural”.

The Most Common Issues With Body Corporate Balconies

A well maintained concrete balcony should last for 40 – 50 years.

Other than “well maintained” there are other underlying assumptions including:

  1. The balcony was well designed in the first place with good drainage.
  2. The balcony and all it’s components were well constructed.
  3. Good quality and location appropriate materials were used in construction.

Sadly, body corporate balconies often fail to meet those basic assumptions.

Water Leaks

The most common issue with body corporate balconies is, by far, water ingress. From the same Melbourne waterproofing site above:

1.8% of the total construction cost is spent on waterproofing membranes for balcony areas, and yet leaking balconies account for a staggering 83% of building defect complaints.

Water leaks from a balcony can be into the lot or common property below or beside or into the subject lot.

Adequate drainage is the first issue that should be checked. An incorrect fall (resulting from poor design or construction) can funnel water directly into the lot or away from the appropriate drains.

Water pooling in also indicates poor draining.

Leaks to the lot below are, usually, indicators of a failure of the waterproof membrane.

There are lots of reasons membranes fail but poor workmanship accounts for up to 90% of failures. That can be everything from the slab being too wet to bond with the membrane, poor preparation of the surface, poor application of the membrane or subsequent tearing of the membrane when tiles are added or afterwards.

I’ve seen three building where waterproof membranes where simply never applied to balconies.

Leaks into the lot are more problematic since the failure may be the windows and doors rather than the balconies themselves. Or, as is often the case, the leaks have multiple causes.

If you have water ingress issues from your balcony have your own sliding doors checked first. If that proves not to be the cause of ingress then report the matter to your body corporate.

If you have water ingress from the lot above or common property report straight to the body corporate.

Cracked or “Drummy” tiles

cracked balcony tilesTiles are laid over the waterproof membrane to which they bond providing protection for the membrane which itself stops water leaking into the lot below and protects the slab.

Sometimes expansion joints are inadequate and the tiles push against each other as the slab moves. When that happens the tiles can become de-bonded from the membrane and lift becoming “drummy”, named because of the hollow drumming sound they make with struck with something heavy.

Read more about lifting or drummy tiles here.

Cracked tiles are, usually, the result of some sort of impact though it is possible that underlying issues can cause tiles to move and crack.

Cracked or lifted tiles need to be repaired as soon as possible. Movement of the tiles can tear the waterproof membrane. Even if the tiles come away cleanly it opens the way for water to penetrate to the membrane. It will have no way to drain away and can cause deterioration.

Repair of drummy or cracked tiles is lot owner responsibility.

If the cause of the problem comes from a structural issue such as concrete spalling the repair will be the body corporate responsibility.

See below a discussion re who is responsible for tiles when the works are body corporate responsibility.

Deterioration of the Balustrade or Fittings

Balustrades are made of all sorts of materials such as concrete, steel, wood or glass. They’re also fixed to the slab by either cementing in place or a complex arrangement of bolts.blue balcony balustrades

All the materials are open to the elements and erosion or other deterioration will happen.

Regular maintenance is crucial. Concrete and steel balustrades should be painted regularly as painting seals the structure and prevents rust. Wooden balustrades, usually part of a wooden balcony, need to be treated regularly and inspected for evidence of wood rot and / or timber pests. Glass balustrades need to be cleaned and inspected regularly.

The most common balustrade issue is a breakdown of the connection to the slab. If bolts are used they can rust weakening the structure.

When Balustrades No Longer Meet Australian Standards

Balustrades, like all building items, are subject to Australian Standards. Australian Standards are made more rigid, reasonably often, certainly more often than balcony balustrades are changed.

The changes to the Standards are not retroactive so if a non-compliant balustrade remains in good order then it’s a not an issue. The balustrade may be maintained, indefinitely.

There comes a point however when maintenance becomes a repair. Balustrades that are not compliant with Australian Standards may not be repaired.

It is common for a strata scheme with balustrade issues to find that replacement is their only option.

Concrete Cancer  

cracked concreteConcrete cancer, or more correctly concrete spalling, is common in coastal areas.

Unchecked concrete spalling will destroy a building. The Iluka building, a Surfers Paradise icon built in the 1970’s, was demolished in 2013 because it had become structurally unsound due to spalling.

For most buildings concrete cancer is a treatable problem.

Regular painting is crucial. The paint seals the concrete against moisture penetration. Painting goes hand in hand with inspection of the building and, if identified, repair of any spalling.

Balconies are checked and painted regularly in concrete buildings as part of their regular maintenance.

Brick buildings by contrast don’t need regular painting and balcony slabs are sometimes overlooked. The exposed concrete slab for the balcony should still be both inspected, painted and repaired if necessary.

Waterproofing Works To Body Corporate Balconies

The body corporate is responsible for maintaining the waterproof membrane in a good condition. The owner is responsible for the tiles on top of that membrane.

So what happens when the tiles need to be removed to address an issue with the membrane?

A lot will depend on the condition of tiles and the reasons the membrane needs addressing.

If the membrane is leaking but the tiles on top of the membrane are in good condition then the body corporate is responsible for the cost of removing the tiles, rectifying the membrane and relaying similar tiles. If the lot owner would like upgraded tiles they may pay the extra cost.

If the condition of the tiles is poor things are less clear. An order has been made that the lot owner is responsible for the cost to purchase and re-lay the tiles, notwithstanding the waterproofing works are necessary, because the condition of the current tiles was poor.

In this Blue Lagoon decision a lot owner sought reimbursement for tiling works as the water was pooling under the tiles, allegedly causing the tiles to lift and crack. The application was dismissed for several reasons including that the works had already begun prior to communication with the body corporate about possible problems. As the scheme had no way to check validity of the claims the owner’s application for reimbursement was dismissed.

Renovating a Balcony

Making changes to your balcony is something that should be discussed with the body corporate prior to any works being undertaken. Tiles that have been laid well bond with the waterproof membrane below and removing them without damage is a challenge.

A conversation at the beginning might avoid drama later.

Conclusion

This article is intended as an overview of the body corporate balconies, where they go wrong and who is responsible for fixing what.

It is a complex subject, both in terms of the physical make up of a balcony and determining where fault and financial liability lie.

Persistence, communication and reliable building professionals are key to smooth resolution of issues.

THE BASICS OF BODY CORPORATES

A little knowledge can go a long way


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Comments

  1. Michael says:

    In QLD it can be even more convoluted. If the balustrade overlooks your exclusive use area then it becomes the lot owners responsibility according to BCCM.

    I live in a complex of 12, 2 story townhouses. 5 have balconies overlooking their exclusive use area and 2 overlooking common area. The 2 are maintained by the body corp and the 5 by the owners.

    Michael

    • Hi Michael

      Good tip! Thanks for sharing.

      I knew the doors and windows onto the balcony would be lot owner responsibility if the balcony was exclusive use area but didn’t know that could be extended to balustrades. Makes sense.

  2. Lisa,

    Thanks for your articles – they are very helpful and informative.

    We always advise our members to keep the communication with the body corporate open, updated and informative. Proactive attitude of owners in advising body corporate in writing about any problems as soon as they happen, preferably with evidence such as pictures, and keeping a log of the dates, pictures, videos etc. for future reference helps immensely if the repair / maintenance issues are to be addressed fairly and equitably.

    It is also important that the owners understand the value of maintenance and understand that sinking fund needs to be maintained in sufficient levels to address any issues in timely manner.

    Jana Koutova, Executive Officer, Unit Owners Association of Queensland Inc.

    • Hi Jana

      Good advice re keeping a log! Excellent idea.

      Also good point about sinking funds. Simply identifying that its body corporate responsibility doesn’t automatically mean the works can proceed without a great deal of rejigging and planning.

  3. Ken Morris says:

    Hi, Some questions resulting from your interesting article on balconies
    You reference the windows & doors opening onto the balcony as part of the lot so lot owner’s responsibility
    Q1 Aren’t the doors & windows part of the main “building structure”
    Q2 What about the wall structure that supports windows & doors to balcony, surely part of the “building structure”
    Q3. When building comes up fro repaint, are the walls referred to paid for by BC Repaint or are they back charged to lot owner?

    • Hi Ken

      The door and windows opening onto the balcony are part of the lot.

      If a door or a window share a boundary with common property then they are considered to be common property since it would be unfeasible to share the cost. So for instance, your front door opens onto the common property hallway so is considered common property and the body corporate must maintain. The internal doors open inside the unit and are lot owner responsibility.

      Its the same with windows. If the window is into a part of the lot, which usually only happens on balconies, then the lot owner is responsible. If the window is in the boundary wall of the scheme then it is common property.

      With repainting, yes, the wall repainted could be charged back to the owner, and sometimes is if the painting is required other than with the entirety of the building. Usually buildings are painted in one go so by funding the whole paint owners are in essence paying for their portion of the walls to be painted.

      Q2 re the wall structure supports, windows and doors to balcony is a damn good question and I have no unequivocal answer for you. I agree the structure that surrounds the doors and windows is part of the building structure. Owners must maintain however. I expect it will come down to how much is a maintenance and repairs vs structural issues. Again however I don’t have a clear answer. If the situation arises I would certainly argue body corporate responsibility until shown otherwise.

  4. Cheryl Boneham says:

    Hello. I have been reading your publication for quite some time, and wonder why all of your articles apply to Building Format Plans? Would really appreciate some articles referring to Standard Format Plans please.

    • Hi Cheryl

      95% of what I write relates to both standard format plan and building format plan. Its only a question of boundaries of common property.

      In there something in particular you’d like to know more about? I’m always looking for ideas.

  5. Hi Lisa

    Our unit has a large uncovered balcony that is built above another lot’s garage. The tiles have not been laid well and there is possibly a poor (or no) waterproof membrane underneath.

    During wet weather, our balcony is leaking water onto the garage below.

    Can you please advise if this falls completely under us as lot owners, or will some fall under body corporate? Our balcony is private use.

    Any help would be great!

    Thanks

    Matt & Emma

    • Hi Matt

      Ooh, that doesn’t sound good.

      If the area is exclusive use then it is lot owner responsibility unless you can prove that the issue is caused by failure to maintain by the body corporate. Its difficult to do with exclusive use as lot owners are required to maintain exclusive use areas.

      If you haven’t spoken with the body corporate start by doing so. They may take responsibility.

      If they’re already referred it to you get someone to have a look, estimate cause and costs to repair. Take it from there.

  6. Rosendo Manucduc says:

    Hi Lisa,
    My property was under Body Corporate and was insured through Starata Care, If the building or unit was part of “Standard Format Plan”, Is Body Corporate covers the building structures or not? Because they told me Body Corporate is not responsible for any maintenance related issues, but the cause of the problem started on breaking down of “waterproofing membrane” in the balcony and from some movement of the building which causing water leaks damaging the garage ceiling.

    • Hi Rosendo

      If your scheme is part of a standard format plan then the boundaries between common property and the lot are measured by pegs in the ground. That means, referring to your plan of course, that the exterior of the structure is contained wholly within the lot. That means the building is your responsibility, the same as owning a house really.

      If your lot is joint to another lot then the BCCM Act requires the body corporate to insure the property as a whole. This is so that no one owner is disadvantaged because those who’re they’re connected to don’t or won’t insure.

      Insurance is one of the few things in the lot the body corporate will cover. Any damage caused to the inside of the lot, like water damage to walls or ceilings, will likely be covered under the body corporate insurance. You will need to pay the excess. The insurance company will most likely ask you to rectify the issues that are causing the water ingress first though.

      If you have other questions please let me know.

  7. Hi Lisa,

    Thank you so much for sharing your wisdom via this site. As a first-time body corporate owner, it’s a lifeline.

    I wonder whether you can shine some light on my current situation. I bought a unit in a body corporate in Queensland that has a balcony overlooking the private use area of me and of the adjoining property.

    After heavy rains in summer, the underside of the balcony showed water damage (cracked paint etc), which the adjoining neighbour informed me was a problem that had been repaired (only months before I purchased the house as it turned out – lucky me) at great cost. There’s no water on the balcony, so the leak must be in the wall. The plumber was obtained by the body corporate, and the builder by the previous owner. I contacted the builder who completed this work, who informed me that he had been contracted to fix the damage but NOT the water leak, and it was apparent to him at the time that the plumbing workmanship was shoddy and that this problem would recur.

    The body corporate have been uncooperative in providing me with the previous invoices, and almost four months later only gave me the name of the builder. Do I have the legal right to require the body corporate to pay for the water leak to be repaired, given that they paid for the original (shoddy) repair? If not, do I have any legal recourse regarding the poor workmanship at all? I feel frustrated, overwhelmed and bullied, and I’m grappling with understanding who is responsible for what. Any advice you can share would be greatly appreciated!

    • Hi Mina

      I feel for you. I understand this is a difficult process, particularly when you’re dealing with several groups of people.

      Can you get the body corporate to pay? I’m afraid I don’t know the answer. There’s a lot of factors going on here and not enough information to be clear.

      I understand it can feel totally overwhelming to deal with the blank wall that strata is so often. Persistence is key here. There are a few ‘next steps’ you can take.

      Firstly you need to establish whether the body corporate is responsible for fixing the leak. Good clues here will be why they fixed the problem in the first place. It could well be that whatever work they did exacerbated the situation and yes, definitely responsible for fixing. You need to get a hold of whatever information you can about the circumstances of the previous repair. A copy of the plan for your scheme would probably help as well.

      The best place to get that is body corporate records. With some managers you’ll have access to the records via a portal. If you do, go through the records and have a look. Read some minutes. See if you can find 1) the resolution and 2) the invoice. Let me know if you need more help on this one.

      Secondly, try and get the problem defined. Can you get a couple of tradespeople to give you some idea of what the issue is and, if possible, quotes to rectify.

      If you know what the problem is, and who’s responsible, the next step will be to get it enforced.

      I know its challenging Mina. Persistence is going to be important.

  8. Philip Jackson says:

    I have a balcony which has some poor design characteristics and allows water to pond, there is inadequate fall to the floor waste and as such water bathers and sits for a lengthy time causing mould and a slippery growth on the balcony, Question is: who is responsible for the repairs maintenance and rectification of this build/construction/design problem.

    • Hi Philip

      The body corporate is responsible for maintaining common property. That doesn’t mean they’re responsible for fixing design issues.

      There is a caveat to that. The body corporate does need to maintain the scheme in good working order.

      So for instance, there was a case of a high rise where the wrong gutters were installed on a building, which, during a heavy rain event, caused said gutters to overflow causing significant damage both to the roof and the interiors of the lots. An insurance claim was made and denied because the damage was caused by a construction fault. The building warranty period had expired and the building was left in a position where it had to take action to repair the roof to make the building water tight.

      The test to get the body corporate to rectify will be what damage is being done? If there is no damage only inconvenience then there is no responsibility to maintain.

      Your other option might be to see whether there are still new building warranties and the matter can be referred to the developer/builder.

  9. clemencia katona says:

    I have a question the toilet inside the premesis ,,is in poor condition ,I would like to replace a new one can I replace ,I will pay the cost ,,wanted to know if it ok. To do it,,
    Clem

    • Hi Clem

      Contact your body corporate manager and ask them. The contact details should be on your Notice of Contributions.

      Just check the best way forward. You may be able to proceed without any further correspondence. Alternatively you may need to email committee to seek their approval. The Manager can let you know how your body corporate likes to work.

  10. Hi Lisa,
    Part of my balcony has just been found to be drummy – the slab, not the tiles – and may have to be torn up to check for beginnings of concrete cancer, which has been diagnosed in a unit further down in the block. Just to double check, the BC is responsible for the repair and reinstatement of the slab and the waterproofing, but not the tiling. Is that correct or have I misunderstood? And who is responsible for removing the existing tiles? This is in Qld btw.

    • Hi Rosey

      Yes, the waterproofing and slab is body corporate responsibility as it services more than one lot. The tiles, as they service only one lot, are lot owner responsibility.

      If the body corporate is undertaking works on the balcony because of a suspected issue with the slab, not an issue with the tiles, I would expect them to make good the tiles at their cost. Works to the tiles are only necessary because they’re doing what they’re doing, so they should pay reinstatement cost.

      If there are issues with the tiles then it might be worth discussing with the body corporate to negotiate who will pay for what.

  11. The BC is responsible for the membrane in a lot.
    Membrane probably stops at the door/wall join. There is no design requirement for waterproofing under doors says QBCC (or walls?). Indeed, modern building practice allows slabs to be completely at the one level. No 75mm step up. Easy to lay the slab completely at the one level and rely on sikaflex for sealing.
    If a leak affects the unit below then that is clear evidence meaning a BC requirement to fix a failed or no existent membrane.
    If no indication of a leak into into the unit below, then membrane is not an issue and no requirement for BC to fix. No evidence of membrane failure.
    But water leaks into that same unit adjacent to the tiled balcony under the door and under the walls which are within that lot. There could be an issue with the grout which is not maintained with sealer or was never sealed. Tile sealant only lasts 3 or so years in Qld climate/suns rays.
    There is sikaflex sealant along the edge where tiles and grout meet a painted timber wall which sits directly on the slab. Possibly the tiles, being laid on the slab, have a surface 5-6 mm above the interior slab level. A design issue at build. Not noted by a certifier. Probably the membrane stops at the tile/wall/door join and is only placed under the tiles as normal practice.
    Probably, moisture gets sucked along the grout (capillary action or wind pressure) and passes into the wall and the bottom timber plate and thence into the carpeted floor doing all sorts of hidden damage, rotting, decay, mildew.
    Body corporate cannot access the lot to maintain the membrane. Any inspection of the tiles and grout would not show an issue. No complaint about water penetration into the slab of the unit below.
    Lot owner to maintain doors and walls in the lot and also the tiles and grout. But to what extent?
    Lot owner says BC responsibility to repair the leak (building integrity issues) .
    BC says owner should have maintained the grout by sealing the tile/grout surface (common sense but owners wont spend the money). Anyway, it is a build design issue.
    Note, QBCC builders warranty expired. It takes a number of years for design issues to become evident through rotting timber base plate or rotting carpets or underlay or timber strips or gyprok.
    Where does the repair cost lie, BC or Owner?
    Or is this design issue not yet determined as to responsibility and requires adjudication.

    • Hi D

      What you’ve described is a complex issue and it appears unclear where the fault actually lies.

      As you’ve said the lot owner is responsible for maintaining the grout as its part of the tiling. The body corporate is responsible for the waterproof membrane whether its correctly laid or not.

      The body corporate is not responsible for rectifying design faults, however they are responsible for keeping the common property in a safe and working condition.

      The key here is going to be what is causing the problem, or combination of problems. It is unclear so I suggest it would be a good case for Adjudication.

      • A
        Thank you for your reply and interest.
        The membrane is not to protect that unit from leaks but the unit/s below. A complete membrane across all the slab would protect the unit below from all leaks even pipes, washers and showers but that unit would be a sea of water, no protection at all. Evidence of a functioning membrane is seen by lack of leaks IN THE UNIT BELOW and might well be most of the evidence needed, if not all. The key here is the flat slab and lack of waterproofing in the door and walls which seem to be a design/construction fault. A well informed insurance company would use that to deny liability,, i would think. A lack of maintenance by the BC is difficult to prove where the balcony is exclusive use and not common property. But what maintenance is necessary given design issues. Up to the owner to rectify as he owns the lot. No owner is aware that maintenance includes tile and grout sealing. But that is more common sense on the owners part. However, owners presume an existence of ‘building integrity’ and the BC is responsible for that.
        So it would seem the best a BC could do would be to refer the aggrieved owner to an adjudicator to see how the issue would be decided. Gives the bldg a bad name and facilitates lower sale prices, i suspect, as being the only outcome here. I now await QBCC advice.

  12. Where do I go?

    A lot owner with exclusive use (and an exclusive use by not to make improvements without BC approval) on a Common Area podium slab changed a pool-type fence to a more imposing solid wooden fence.

    The BC commenced actions to stop this happening but a Dispute was lodged against the BC for taking action.

    The adjudicator dismissed her applucation and Concluded that the owner submit an application to BC for consideration and if it was not approved it was to be removed, or an Order to remove it could be sort from them.

    In the meantime, a Cadastral Survey was conducted to identify the measurements of the exclusive use area and it wad found that approx half of the podium and the wooden fence was Common Area and not exclusive use.

    The owner has removed half of the fence and her items from the Common Area, but some of her items still encroach on Common Area property.

    She is refusing to co-operate with the BC to remove the rest of the fence and move her items within the exclusive use area to build a fence as approved by the BC.

    Do we have to now start over and Breach the owner or is there something else we could do?

    Any advice would be greatly appreciated.

    • Hi Graeme

      If the lot owner has complied with the previous breach notice then I’d say you have to start over.

      The question is, has she complied with the previous breach notice. The application she lodged was dismissed. The adjudicator said seek approval and, if not granted, remove. The business with the Surveyor doesn’t impact whether or not the fence can be erected and doesn’t impact the initial objection of committee. It only affects boundaries. Ignore the twist about boundaries and review the Order.

      Bearing in mind I’m not an Adjudicator so might be missing some crucial legal element that the whole thing turns on. It seems to me though that if the owner hasn’t applied for permission to erect the fence then the body corporate can seek an order it be removed. The original objection was not to remove from common property, but removed altogether, including from the exclusive use area.

      The question there will be “is the body corporate acting reasonably not allowing the wooden fence on exclusive use area?”

      If you have any doubts I suggest you start over. Adjudicators are sticklers for process so it can’t hurt ticking the boxes again.

  13. HI i was just reading the above post regarding a fence what happened with us is we have a back fence which is all common property which is boundary with a council causeway. the fence was damaged by vandals and instead of seeking body corp approval to fix the 7 broken fence rails which would of only cost about $14 plus labour and nails instead when and doubled up the whole fence to reinforce it which used around 230 fence pails at around $450 plus labour and materials for a total of $1400 s all this was done with out obtaining quotes and with out permission the claimed it was an emergency so that they could avoid getting permission by the body corp i argued that it was not an emergency cause some of the broken fence was left in that state for over 3 months without repairs before the latest repair also the fence and gate at the opposite end of the property are left wide open so anyone can walk in anyway. They held a committee meeting so that the folks that erected the fence can get away with putting it up because they said it was an emergency. Can they actually do this? How can a committee agree to something that was not an emergency and was most likely an improvement seeing how they didn’t just fix the broken timber but instead doubled over the existing fence.

    • Hi Grahame

      Lets see … unnecessary repairs, bodgy reasoning, scrambling to cover their ass. Sounds like a body corporate to me. Or possibly the government.

      Yes bodies corporate can do whatever they like, so long as its legal, they don’t breach any legislation and their actions are “reasonable”. What qualifies as reasonable is the stuff of disputes.

      People get away with this stuff because the only people who can complain are the other lot owners and the complaints process is long and arduous. Its also frankly hardly worth the effort for $1,400 unless you personally have to pay it or you’re really annoyed.

  14. I occupy a ground level apartment which was constructed in approximately 1998. On my balcony roof. directly outside of my kitchen window there are clumps of matter (looks liked dried plaster) that is dripping from a patch on the ceiling which is concrete. I am guessing this is as a result of water retention from the upstairs balcony? Just wondering who is responsible?

    • Hi Linda

      It will depend if the area is common property or part of a lot. It part of a lot then it’s that lot owner’s responsibility. If common property then body corporate.

      You’d need to find out where the leak is coming from.

  15. Hello Lisa
    I live in a ground floor apartment. I have a tiled terrace which runs the length of my Lot and is surrounded on 3 sides with an ungated railing. The railing is located on the boundary between my Lot and the Common property garden. The railings on all Lots in the high rise building are being replaced as they are not up to code for balustrade height and they are also materially unsound.
    I would like to know whether the railing on my ground floor Lot would be classified as a “fence” or a “balustrade”. The correct definition of the railing will determine who is responsible for the repair and replacement – either the Body Corporate for the total amount (if it is deemed to be a ‘balustrade’), or the Body Corporate sharing the cost with me (if it is deemed to be a ‘fence’).
    A balustrade is generally defined as serving the purpose of preventing falls and must be installed in situations where the fall would be at least one meter. My ground floor apartment is at ground level therefore the railing appears not technically to be a balustrade.
    If the railing is not a “balustrade” then it would be a “fence” and the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011 would apply.
    I personally would prefer the railing to be classified as a ‘fence’ as the railing could then be shorter than the height mandated under the Building Code for a balustrade, and could very well be cheaper. I may also be able to request a gate in the ‘fence’ which would allow access to the common property garden from my terrace.
    I look forward to your assessment of the classification of the railing at my ground floor Lot.

    • Hi Bella

      I wish I could give you a definitive answer on this one but it is a question for an Adjudicator.

      You don’t actually have a dispute to bring before an Adjudicator though. Discuss the matter with your body corporate and ask what they think. Let them know what you think. They may have a different take on the matter depending on safety legislation or other acts.

      They’re likely just as happy to avoid further costs on an already expensive project like replacing balustrades. I’d start by asking if they plan to change the balustrade. They may not and its quite possible you don’t need to do anything at all.

      • Hi Bella

        Wouldn’t you know it, someone asked the same question in the Flat Chat forum here.

        The information re Owners Corporate relates to NSW however the balustrade information will be nationwide.

  16. Hi Lisa
    I am interested in your statement re “The balustrade is the exterior boundary of the building therefore is common property and body corporate responsibility”.
    Just outside my balustrade on the outer edge of the cement slab is a tiled area (100 mm wide) where the tiles are popping off due to two thin rusting metal strips under the tiles (all balconies on my level are affected) and tiles are dropping off the edge. This row of tiles sits slightly higher than the balcony tiles within the balustrade presumably to guide water to two exit points. As these tiles are outside the balustrade I would assume that these are common property and should be maintained/repaired by Body Corporate. Is this correct?

    • Hi Annette

      The balustrade does mark the boundary of the lot and common property and is body corporate responsibility. Its not a hard and fast boundary whereby everything beyond that boundary is body corporate responsibility and that’s that. Its common property because it is the boundary between the unit and the common property, in this case the exterior skin of the scheme.

      It seems to me what you’re describing is a continuation of the tiling of your lot (lot owner responsibility) onto the exterior of the building. Of course writing about it is imprecise and I can’t clearly picture what you mean. I have a lot of questions about this: Who added the tiles? Are they on every floor? has the body corporate maintained/replaced them before? All sorts of things get added to buildings to try and address various situations making responsibility a confusing mess to work out.

      The best I can tell you Annette is that it is possibly body corporate responsibility. Tiling is usually lot owner responsibility but there are too many variables here to say definitively one way or the other.

      I suggest discussing it with your body corporate manager and or committee. Also consider discussing with your other owners. There may already be a precedent in your building about how they are to be treated. Asking is the best place to start.

      • Thanks Lisa. I have already approached the Body Corp and they have stated that the area between the balcony and the face of the complex is not common property.

        The complex has three levels. Works have been approved to repair the outer balconies of level 1 and 2. These upper balconies adjoin roof lines (as there have been a number of failures at the interface of the roof lines and the balconies). As the ground floor does not have an adjoining roof line and water ingress issues, repairs were not approved.
        The ground floor has different issues. Although the ground floor doesn’t have known leaking issues into the next level – the car park, the outer row of tiles have completely lifted from the edge of the building and some have fallen to common property 15 metres below. The tiles are literally sitting there with no adhesion to the balcony. These tiles serve a different purpose to the other tiles on the remainder of the balcony in that they direct water out at 2 specific points so they act as a drain.

        The whole ground level is affected even though the building is only about 10 years old. These are the original tiles laid when the complex was built – no-one on my level has had them repaired. I am the first to raise this as an issue as I am concerned that someone may be below when the next tile drops. I have removed the whole row from the outer edge on my balcony for this reason. I look forward to your response.

        • Hi Annette

          Do you disagree with the ruling the area is not common property? And if so why?

          I’m not asking to find out but to get you think about what it is you’re wanting to have happen here. If you truly believe the matter should be common property and the body corporate should fix it then by all means take the matter further.

          To seek an Adjudicators Order you will need to demonstrate there is a dispute and you have tried to resolve it. If you’ve formally asked the body corporate to rectify and they have not then that may qualify. Talk to the Commission Body Corporate Office and see what they say.

          Tiling is usually lot owner responsibility however the reason the tiles need work will be a factor. So for instance, if the tiles (lot owner responsibility) on a balcony needed replacing because of an underlying issue with the membrane (body corporate responsibility) then the body corporate would be responsible for pulling up and replacing the tiles.

          Determining whether the area is common property will be a matter of whether it services one lot or more.

          Have a think about what you want to have happen. Build your case. If you think it has merits then explore the option of taking things further. Discuss with dispute resolution service to see if they agree with you.

  17. Anita Susan says:

    Hi
    I’m seeking clarification regarding Qld BC, we have had an a safety inspection on our premises consisting of 6 units and the front doors to 5 units (1 unit ground level with a glass sliding door) regarding fire approved front doors. Our complex was built 1982 and I thought it was regulation all doors are of fire standard? It has been suggested the cost of each front door be the cost of the body Corporate? I did read a post earlier stating if the door opens into common area it’s a BC maintenance. I thought the principle applied as the front door is recessed back from the common area and inside the boundary point of the unit it’s a cost to the owner? Eg I have a screen door aswell the opens onto common area does that mean the BC are to replace it aswell if it’s worn or broken. My front door is in perfect working order, so if they are replaced who re-installs all the deadlocks to the new front door please.

    • Hi Anita

      If the body corporate is a building format plan, which most apartment buildings are, then yes the fire doors are body corporate responsibility.

      If you have a screen door and other lots don’t then its quite probable the door was added by a lot owner. There should be an approval given and most are made subject to conditions including that the lot owner is responsible for maintenance. Its likely an improvement that has been added at lot owner expense. I would expect all units to have a screen otherwise.

      The body corporate is responsible for making sure the building is fire safe, including having a fire safety door on each lot. I presume your doors are not compliant which is why they’re talking about changing though still working fine. Any works to the door are only done as the body corporate needs to discharge their duty of care therefore they will be responsible for returning the door to its current condition fitting deadlocks etc. If the deadlock needs to be changed, because it won’t work with the new door, then I would expect that to be a lot owner expense as the cost is for a specific unit only, though the body corporate may foot that cost too.

  18. Hi again Lisa,

    Thanks for your last reply – it was very helpful. Another question: Is it a conflict of interest having the building manager (who has just recently become an owner) elected as the chair of the BC? Is it common for complexes to have one person serve in both positions?

    Regards,

    • Hi Rosey

      Committees are made up of 3 – 7 elected lot owners plus (potentially) 2 other non-voting members, the Caretaker and the Body Corporate Manager. They hold a position on the committee and should attend and input at meetings but they cannot vote.

      If the person is a body corporate manager, a service contractor or letting agent, or an associate of those bodies, they are ineligible to be elected to committee. It is indeed a conflict of interest. It doesn’t matter whether they’re a lot owner, they’re excluded because of appointed position they hold.

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