ACT: Common Property Boundary Lines – Class A and Class B

These Q&As cover questions we have received in from ACT lot owners about common property boundary lines and who is responsible for repairs and maintenance in strata buildings in Canberra.

Table of Contents:

• QUESTION: I’m looking to purchase a townhouse. The strata has only one other house, with no common property. There are no strata fees, and we only share the cost of building insurance and water usage. Are there any mandatory things we need to do, e.g. an AGM, a maintenance plan, a fire safety check?
• QUESTION: My Class B townhouse has extensive leaks and water damage. Am I responsible for all repairs, internal and external?
• QUESTION: Is a kitchen bench in a Class A building a fixture, and therefore should its maintenance be an Owners Corporation responsibility?
• QUESTION: I live in a bottom floor apartment but I occasionally hear rustles in the roof and I am concerned about the state of the ceiling. Is it the strata’s responsibility or the lot owner’s responsibility to investigate this noise? The ceiling cavity is between a ground floor (my apartment) and an upper floor apartment.
• QUESTION: The water supply pipe in my townhouse that feeds the bathroom is in the wall. It recently failed and caused flooding but insurance denied the claim as the pipe had not been maintained. How do I maintain a pipe within a wall?
• QUESTION: What are the car stacker strata regulations in the Australian Capital Territory?
• QUESTION: I own a top floor apartment in a Class A building in Canberra. The roof leaked and caused damage to my ceiling. Is the Owners Corporation responsible for fixing the leaks and repairing any damage?
• QUESTION: I am looking after a Class B Strata Plan that has 4 houses on the property. All the fences need to be replaced. Can the sinking fund be used to replace the Boundary fences?
• QUESTION: Is it the owners corporation or lot owner’s responsibly for maintenance and repairs of courtyards (specifically tiles, waterproofing etc)? Our plan clearly distinguishes between our balconies and courtyards.
• QUESTION: In the ACT are apartment balconies considered part of common property or part of the unit entitlement? Who then is responsible for the maintenance of say, damage to the balcony’s tiles?
• QUESTION: For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?
• QUESTION: Residents in our complex have reported seeing rats in areas like our terraces. Should the committee deal with this common area issue?
• QUESTION: Who is responsible for replacing and repairing FOBs to our underground car park gates and entry doors into my building? Is it up to the body corporate to make sure I can access the building with a working fob?

Question: I’m looking to purchase a townhouse. The strata has only one other house, with no common property. There are no strata fees, and we only share the cost of building insurance and water usage. Are there any mandatory things we need to do, e.g. an AGM, a maintenance plan, a fire safety check?

Answer: Class B units are exempt from some requirements of the Act but are required to hold an AGM each financial year.

The Unit Titles (Management) Act 2011 (UTMA) enables dual occupancy units to exempt themselves from particular requirements of the Act. These exemptions include but are not limited to, the requirement to have a bank account (Section 68 (2)) and the requirement to take out building insurance (Section 100 (2)). The UTMA requires a unanimous resolution (both units in agreement) to do so and carries with it certain other requirements, such as the requirement to lodge any resolution relating to insurance under the Land Titles (Unit Titles) Act 1970.

Class B units are also exempt from other requirements of the Act, and not subject to the provisions of maintenance as outlined in Section 24. Consequently (working off the assumption that this question relates to a Class B dual occupancy), there is no requirement for the owners corporation to obtain a maintenance plan, nor to undertake a fire safety check as all appliances are within the unit and the responsibility of the individual unit owner.

Importantly, the Act does require the Owners Corporation to hold an Annual General Meeting each financial year (S3.2 (1)). This meeting must address the matters as outlined in the Unit Titles (Management) (Meeting Agenda) Guidelines 2020, details of which can be found at Unit Titles (Management) (Meeting Agenda) Guidelines 2020 | Notifiable instruments.

To be certain of what requirements the OC has and has not been exempt from, it would be advisable to undertake a search of the records (if available). It may be that the AGMs have not been held. This should be established, and if not, they should be initiated and undertaken annually in accordance with the Meeting Agenda Guidelines.

Nina Cannell
Signature Strata
E: [email protected]
P: 02 6185 0347

This post appears in Strata News #662.

Question: My Class B townhouse has extensive leaks and water damage. Am I responsible for all repairs, internal and external?

I live a 10-year-old Class B strata townhouse.

My townhouse has extensive internal damage after roof and balcony leaks causing leaking and mould. Can I claim these repairs on insurance? I have been told the external work is my responsibility to repair also. Is this correct? So far, I have paid over $25,000 to replace the roof and repair the balcony.

My father-in-law lives in NSW and his strata was responsible for works to his shower because it was located on an external wall.

My balcony is above my lounge room, where most of the internal damage has occurred.

Answer: Units contained within a Class B property have boundaries that are unlimited in terms of height. This includes the structure of the unit.

On the surface, the advice you have been provided appears to be correct. Unlike titling in NSW, ACT legislation includes a provision for two separate unit titling systems, Class A and Class B – refer to Unit Titles Act 2001.

Units contained within a Class B property have boundaries that are unlimited in terms of height. This includes the structure of the unit.

The boundary of a class B unit is, in most cases, considered as the boundary of the land on which a townhouse has been built (or improvements to the land, such as a garage, etc.). Unit owners are responsible for all maintenance, repair, and improvement of everything inside the boundary of the unit, including the structure of the property and all fixtures (pipes, conduits, gardens, etc).

The Unit Titles (Management) Act 2001 provides the ability for an owners corporation to determine, via special resolution, to transfer responsibility for the maintenance of all buildings within a class B development. UTMA 2011 Section 24(g).

Regarding insurance, reference should be made to the specific cover the owners holds including any product disclosure statement, in consultation with the owners corporations managing agent and insurance broker.

Further information – Class A and B units

Jack Stoker
Bright & Duggan
E: [email protected]
P: 02 9902 7100

This post appears in Strata News #635.

Question: Is a kitchen bench in a Class A building a fixture, and therefore should its maintenance be an Owners Corporation responsibility?

I am the Treasurer of a Class A strata complex. A split developed some time ago in the kitchen bench of an apartment. The kitchen bench was installed by the builder during initial construction of the complex. The owner claims that the repair is an Owners Corporation responsibility. Is a kitchen bench a fixture, and therefore should its maintenance be an Owners Corporation responsibility?

Answer: A kitchen bench is not the Owners Corporations responsibility.

No, a kitchen bench is not the Owners Corporations responsibility, as it is internal to the Unit.

While the Owners Corporation is responsible to insure the structure of the building, including fixtures and fittings, a defect or maintenance issue with kitchen cabinetry would not be considered to be an insurance claim, (insurable event) and therefore the responsibility for the repair would the individual Owner of the Unit.

The Boundary of an A class unit is the midway point of the floor, ceiling and walls. A Unit Owner is responsible for the maintenance and repair of all internal aspects of their unit.

Depending on when the complex was built, there might still be the chance that the issue would be covered under the warranty period. I would be recommending that the Owner contact the developer/builder of the complex.

Steve Wiebe
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #604.

Question: I live in a bottom floor apartment but I occasionally hear rustles in the roof and I am concerned about the state of the ceiling. Is it the strata’s responsibility or the lot owner’s responsibility to investigate this noise? The ceiling cavity is between a ground floor (my apartment) and an upper floor apartment.

Answer: As there is no common area between the 2 units, it would be up to the Owner of the Unit who is experiencing the issue to investigate the noise.

As you may be aware, the ACT has 2 classes of buildings. Generally, A classes are units on top of units, and B classes are townhouse complexes.

In the event that this unit was in a B class complex, the responsibility for the investigation and repair of the issue is wholly the lot Owner’s responsibility.

However, from your query, it would appear the unit you are referring to is contained in an A-class building, as there is a unit on top of your unit.

This can get a little more complicated. In essence, there is no common area between the 2 units, and the boundary for the responsibility lies in the middle of the space. For example, the downstairs unit is responsible for the area up to the midway point, and the upstairs unit is responsible down to the midway point.  That being said, as it would be likely that the waste pipes for the unit above you encroach into your space, as this only services the unit above, the unit above would be responsible for the maintenance of those pipes.

As there is no common area between the 2 units, it would be up to the Owner of the Unit who is experiencing the issue to investigate the noise. If the cause of the noise is due to a structural issue, then this is where the Owners Corporation would step in to repair the structural issue. If the issue is due to something within the unit above, then this would then be the above unit’s issue to deal with.

Another issue to consider is the type of services that are located in the ceiling cavity. For instance, if your unit has centralised heating/cooling, there is potential that the air flowing through the ducts is causing the ducts to move around causing the noise. This may also be caused by the exhaust fans from the kitchen or bathrooms, especially if they are vented outside.

Another possibility could be mice or birds in this area.  May require baits/traps to be installed if there is a cavity or investigate any possible openings.  The other option is to ask the resident above if they are undertaking any activities which may account for the noise.  A joint investigation could also be a possibility.

Steve Wiebe
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #568.

Question: The water supply pipe in my townhouse that feeds the bathroom is in the wall. It recently failed and caused flooding but insurance denied the claim as the pipe had not been maintained. How do I maintain a pipe within a wall?

I own a townhouse. The water supply pipe that feeds my bathroom is in the wall. The pipe recently failed and caused flooding in the adjacent room and bathroom. 

My insurance says the plumber said that the failure of the pipe was caused by corrosion which happened over time and was not a sudden failure. As such it is my maintenance issue and so I am not covered by the strata building insurance. 

How can you maintain a pipe in a wall and is my insurance correct in that it is my responsibility to resolve the issue?

Answer: In most instances, lot owners at their own cost will need to maintain pipes as issues arise.

Water damage claims are our most contested claims with insurers because there is often a component of maintenance and also repair of water damage. Insurers cover the cost to repair water damage to insured property but generally exclude repairs costs related to finding and fixing the leak, as it generally considered the lot owners/owners corporation’s responsibility to maintain their property and such repairs relate to general maintenance or wear and tear.

Insurers have exclusions such as lack of maintenance, rust, oxidation, wear and tear, corrosion, gradual deterioration, developing flaws, building defects etc. Generally, leaks are only covered if the leak is caused from “sudden and accidental damage” such as impact damage, sudden blockage and storm damage.

For a pipe concealed behind a wall, is difficult to maintain other than as issues arise. Therefore in most instances, lot owners at their own cost will need to maintain pipes as issues arise.

Lot owners carry the cost of most maintenance issues inside their lot and generally insurance does not cover the costs associated with maintenance. This is one of the risks/costs associated with property ownership.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 07 3899 5129

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #566.

Question: What are the car stacker strata regulations in the Australian Capital Territory?

Answer: Maintenance responsibilities depend on whether they are marked as Common Property or part of the unit owners subsidiary.

There is no legislation in the ACT that outlines regulations of car stackers specifically.

Maintenance responsibilities depend on whether they are marked as Common Property or part of the unit owners subsidiary. This decision would’ve had to be made at a General Meeting.

If the stacker is owned by the Owners Corporation, whether it be marked as Common Property on the registered Units Plan or a General Meeting passing Maintenance Obligation onto the Owners Corporation, then the responsibility will sit with the Owners Corporation and not the Unit Owner.

We would suggest a detailed review by the Executive Committee of the registered Units Plan.

Mark Zezulka
ACT Division Manager
Civium Communities
E: [email protected]

This post appears in Strata News #556.

Question: I own a top floor apartment in a Class A building in Canberra. The roof leaked and caused damage to my ceiling. Is the Owners Corporation responsible for fixing the leaks and repairing any damage?

Answer: The Owners Corporation is responsible for undertaking necessary repairs to the roof to prevent water ingress affecting your unit

In an A Class development, the roof is identified as common property and under S24 of The Unit Titles (Management) 2011, the Owners Corporation is responsible to maintain common property, amongst other things.

Simply put, yes, the Owners Corporation is responsible for undertaking necessary repairs to the roof to prevent water ingress affecting your unit, as well as to repair resultant damage to your ceiling as a result of the roof leak.

Nina Cannell
Signature Strata
E: [email protected]
P: 02 6185 0347

This post appears in Strata News #543.

Question: I am looking after a Class B Strata Plan that has 4 houses on the property. All the fences need to be replaced. Can the sinking fund be used to replace the Boundary fences?

Answer: The Sinking fund can be used if fence replacement is itemised in the Sinking Fund Forecast report.

To begin, it’s always wise to consult the “Common Boundaries Act” which contains a comprehensive explanation of your rights and responsibilities when it comes to fences in the ACT.

To summarise, for a B Class (Townhouse complex), the following applies:

• Fences between two owners are the shared responsibility of those two owners (50/50)
• Fences that are between an owner and Territory land are 100% owner responsibility.
• Fences on the boundary between an owner and the common property are shared responsibility(50/50)
• All fences that are on the common property and not on the boundary with any individual units are 100% the responsibility of the individual owner.

In relation to your question about whether the Sinking Fund may be used to cover the cost of your fence replacement the answer is ‘Yes. The Sinking fund can be used if fence replacement is itemised in the Sinking Fund Forecast report.

If not, you would need to have a special resolution at a general meeting to agree to use the Sinking Fund for the fence replacement that fell under “Owners Corporation responsibility”

Gareth Halverson
Civium Communities
E: [email protected]

This post appears in Strata News #531.

Question: Is it the owners corporation or lot owner’s responsibly for maintenance and repairs of courtyards (specifically tiles, waterproofing etc)? Our plan clearly distinguishes between our balconies and courtyards.

Is the owners corporation or lot owner’s responsibly for maintenance and repairs of courtyards (specifically tiles, waterproofing etc)? Our strata manager is claiming courtyards are not balconies (which would normally be an owners corporation responsibility as a defined area of a Class A) because the original unit plan identifies balconies and courtyards with different symbols. I can find no definitions in any relevant legislation that speaks to courtyards.

Answer: This will be determined by how the plans note the subsidiary.

This will be determined by:

• how the plans note the subsidiary, whether as a courtyard or a balcony.
• if the Owners Corporation has registered a rule/alternative rule at any time noting that the Owners Corporation is responsible.

Most carparks, storage areas, patios, courtyards, balconies or garden areas attached to a unit are called unit subsidiaries. Maintenance and upkeep of these areas inside the unit boundary of the unit including timber decking, pavers, pergolas, landscaping, planter boxes are the responsibility of the unit owner.

Class A units require the Owners Corporation to maintain, if load-bearing, all walls, columns, footings, beams or any part of a balcony on the building. Courtyards are the responsibility of the unit owner.

Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #518.

Question: In the ACT are apartment balconies considered part of common property or part of the unit entitlement? Who then is responsible for the maintenance of say, damage to the balcony’s tiles?

Answer: Balconies are generally considered a unit subsidiary by the registered site plans.

Balconies are generally considered a unit subsidiary by the registered site plans. Under the Unit Titles Act 2001, a unit subsidiary is a part of a parcel identified as a unit subsidiary annexed to the unit. As a result, the balconies of each individual unit are owned by the respective owner of that unit. However, under the Unit Titles (Management) Act 2011, balconies are also considered a defined part and are, therefore, the responsibility of the Owners Corporation to maintain. Simply put, the balcony is owned by the owner of the unit while it is the Owners Corporation responsibility to maintain it.

Mark Zezulka
ACT Division Manager
Civium Communities
E: [email protected]

This post appears in Strata News #466.

Question: For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?

I understand that in the ACT for class B units under the Unit Titles legislation, the Common Boundaries Act applies to common boundaries between two lots.

For erecting a fence where one did not exist previously, do Owners Corporation approval requirements apply or do the two relevant neighbours just need to agree?

Answer: Where you have a class B development with a boundary between two lot properties, then the owners do still need to comply with the applicable rules. However, the Common Boundaries Act could still apply to that situation.

Christopher Kerin
Kerin Benson Lawyers
E: [email protected]
P: 02 8706 7060

This post appears in Strata News #462.

Question: Residents in our complex have reported seeing rats in areas like our terraces. Should the committee deal with this common area issue?

Myself and others in the complex have reported seeing rats in the common area. These rats are entering our terraces and leaving droppings. 

The committee states that we need to obtain a pest investigation report for inside our apartment before they decide to do anything. We believe that the committee will not do anything as there is no pest control of any type in any of the 7 apartment blocks and they avoid taking responsibility. This is a common property issue and we certainly do not have rats inside our apartment. 

If other people see them does that mean everyone needs to get a pest control report? 

Not sure what to do here, so any advice would be appreciated. We currently personally use poison etc to stop them but we are just 1 unit and this is a bigger issue. 

Why should we be having to deal with this common area issue?

Answer: Owners can undertake action in relation to pest control to their homes and yards.

From the description we would understand that this is a Class B complex.

The Owners Corporation can only take responsibility for areas of common property unless the required resolution has been passed at a general meeting allocating responsibility to areas of individual units to the Owners Corporation.

Owners can undertake action in relation to pest control to their homes and yards.

• The first step would be to eliminate entry points
• Before you put down any traps or bait, investigate where the rodents are entering
• Try to determine where the rodents are living and building nests and set traps around these areas.

If nests are found to be on common property then the Owners Corporation would be responsible.

The owners could request a general meeting with written notice to the secretary of the Owners Corporation with the relevant motions for pest control on common property areas.

3.5 General meetings other than annual general meetings

1. The executive committee of an owners corporation may call a general meeting, by notice under section 3.6, whenever it considers appropriate.
2. Subsection (3) applies if the executive committee of an owners corporation receives a written request (a meeting request), stating the matters to be considered at the meeting, from people who are entitled to vote on all motions for units whose combined unit entitlement is at least 1/4 of the total unit entitlement in the units plan.
3. The executive committee must hold a general meeting, by notice under section 3.6, within 28 days after the day it receives the meeting request.

Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #453.

Question: Who is responsible for replacing and repairing FOBs to our underground car park gates and entry doors into my building? Is it up to the body corporate to make sure I can access the building with a working fob?

I own an apartment with underground parking in Canberra. Two fobs were provided when I took ownership 2 years ago. They are the fobs that work the underground parking gates and the doors to the building. I was not provided with the individual fobs that just work the underground parking gates.

Recently the fobs stopped working so I replaced the batteries. They still open the doors to the building but no longer work on the underground parking gates. I’ve contacted our body corporate to organise replacing the fobs so I can access the building. I was told that I would have to pay $300 for the fobs to access the underground parking.

Are replacement fobs a lot owners cost when they seem to be faulty? I’d understand if I lost a fob and the issue was my fault. If the fobs were supplied when I purchased the property, surely it is up to the body corporate to make sure I can access the building with a working fob.

Answer: The Owners Corporation is responsible for the maintenance and upkeep of the system but the unit owner would be responsible for paying for the replacement of lost, damaged or non-working units.

The life span of remotes/fobs/swipes can be limited and sometimes depends on closeness to other devices, water/moisture and physical damage etc.

Usual cause for non-working remotes are batteries. But if batteries are replaced and still not working to capacity then this would indicate that said remote needs replacing.

Although it does seem strange that both remotes have gone at the same time. Need to determine if any other resident is having an issue. If so then this would indicate a possible issue with the transmitter, pairing issues or the sensor.

The Owners Corporation is responsible for the maintenance and upkeep of the system but the unit owner would be responsible for paying for the replacement of lost, damaged or non-working units.

Jan Browne
Bridge Strata
E: [email protected]
P: 02 6109 7700

This post appears in Strata News #448.

This article is not intended to be personal advice and you should not rely on it as a substitute for any form of advice.

Have a question or something to add to the article? Leave a comment below.

Embed

Read next:

• ACT: CCTV Cameras and Privacy in Strata
• ACT: Q&A Bylaws to ban smoking in apartments
• Your Nature Strip: Guidelines for Use of Residential Nature Strips

After more detailed information dealing with Strata Law in the ACT? Chris Kerin’s Guide to ACT Strata Law is now available.

Visit our Maintenance and Common Property OR Australian Capital Territory Strata Legislation

Looking for strata information concerning your state? For state-specific strata information, try here.

After a free PDF of this article? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.