EXCLUSIVE USE AREAS – WHAT IS A SPECIFIC PROVISION AND WHERE DO THEY START AND STOP?
Acknowledging the article prepared by Grace Lawyers (found here: Exclusive Use Areas—Who Really Pays for Maintenance?), this article continues the series by looking more closely at what a specific provision is, and some of the common problem areas that arise.
We all know the Body Corporate’s statutory duty to maintain is a strict one. It is not enough to take “reasonable steps.” The Body Corporate must investigate and repair common property when it becomes aware that something is broken, defective, or not operating properly. This obligation can extend to construction defects, even if they were hidden at the time of the original build.
However, where lots have been granted rights over common property under an exclusive use by-law, the responsibility for maintenance can shift.
The Default Rule
Section 182 of the Accommodation Module says:
“(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.”
In short, unless the by-law says otherwise, the owner who benefits from the exclusive use area is the one who must maintain it and pay for its running costs. However, when it comes to building format plan (‘BFPs’) the body corporate will still be responsible for roofing membranes (within the EUA and providing protection) insofar as they are in good condition and foundation structures, roofing structures providing protection and essential supporting framework insofar as they are in a structurally sound condition.
This obligation will remain with the Body Corporate unless the EU by-law includes a specific provision.
What is a Specific Provision?
The question then becomes: what amounts to a specific provision?
The answer depends on the wording of the by-law and must be considered on a case-by-case basis. Decisions such as Body Corporate for Visage v Wilkinson & Ors [2019] QCATA 35 have found that wording like “the owner shall be responsible for the cleaning of…” is not enough to count as a specific provision.
On the other hand, in L’Auberge Noosa, the following wording was accepted as sufficient:
“…clean and tidy and pay for any maintenance and operating costs related to keeping the exclusive use area clean and tidy. In particular, any landscaping within an exclusive use area must be kept well watered, fertilised and tendered and to a standard equivalent to the landscaping and gardening within the Common Property. Subject to those obligations, the Body Corporate must carry out its duties in relation to the exclusive use area.”
These two examples highlight why confusion arises: different adjudicators can take different approaches, leaving committees and owners uncertain about where responsibility lies.
Where Do the Boundaries Fall?
Once the question of “specific provision” is clarified, the next step is to determine whether the item in dispute actually falls within the boundaries of the exclusive use area.
Plans usually include notes describing how boundaries should be determined — for example, “the boundary of the exclusive use area will be the external face of the building wall.”
But what about windows and doors that sit within or around those walls?
In Sailport [2007] QBCCMCmr 609, the Adjudicator decided that it would be unjust and impractical for responsibility for a sliding door to depend on whether it was a few centimetres inside or outside the formal boundary. Since the door existed solely for the benefit of the lot and its exclusive use area, the lot owner was found responsible for maintaining it.
This reasoning is consistent with other decisions: if the item exists only for the use and benefit of the exclusive use holder, then it is generally fair for that owner to take responsibility, regardless of exact boundary placement.
Practical Guidance for Committees
When faced with a maintenance dispute involving exclusive use areas, committees should carefully consider:
- Nature of the work required – what exactly needs doing?
- The exclusive use by-law – does it contain a specific provision about maintenance?
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- If yes, follow it.
- If no, apply the default rules (the benefiting owner maintains the area, however if a BFP the Body Corporate will likely still have obligations with respect to roofing membranes and certain structures).
- The plan boundaries – does the item clearly sit within the exclusive use area? If not, does it still exist primarily for the benefit of that owner?
Final Word
Exclusive use areas are one of the most complex and contested aspects of strata living. Ambiguities in by-law wording and boundary definitions often fuel disputes. A careful reading of the by-law and the plan, combined with a clear understanding of the law, can help committees manage these issues before they escalate.
Article Contributed by Jessica Cannon, Partner at Chambers Russell Lawyers.
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I live in a ground floor apartment with exclusive use to our outside court yard.
Unfortunately a Poinciana tree planted outside our patio area in a common place, has a canopy that covers part of this area and whilst we enjoy the shade , it does drop a lot of leaf litter daily.
This has become an issue.
Question. Am I allowed to trim the branches back and if so how far?
Hi Kevin,
Great question and a common one – trees between neighbours is better regulated by Neighbourhood Disputes (dividing fences and trees) Act. Here is a link with a very useful step-by-step process that should assist: https://www.qld.gov.au/law/housing-and-neighbours/disputes-about-fences-trees-and-buildings/resolving-tree-and-fence-disputes.
Having said that it is always best to attempt to internally resolve by engaging with your neighbour before proceeding with any formal process.
How does that work in cases where exclusive use has been given to rooftop sections?
Our By-Laws stipulate:
“ 15. The proprietors to which any exclusive use
allocation has been made pursuant to by-law
13 or to which an exclusive use allocation made
pursuant to by-law 13 has been transposed pursuant
to by-law 14 shall use such area for recreational
purposes only and shall not litter the same
nor so use the same so as to create a nuisance
and further, such proprietors shall be responsible
to the extent of their area of exclusive use
to carry out the obligations and responsibility
of the body corporate pursuant to section 37
(1)(c)(i) and such obligations and responsibilities
shall be carried out at their own cost and expense.”
E.g. the doors from the lift lobby to these exclusive use areas solely benefit the owners of these exclusive use areas. They are locked and if access is required for maintenance issues (e.g. replacing all the floors or repairing lift/antenna issues, the owners have to be asked for access with sufficient notice (some don’t live on the premises).
So if the doors have been damaged by a previous owner and require repair or even replacement, who is responsible for payment?
Thank you for your question and certainly something that your body corporate should obtain formal legal advice on as it will depend on the boundaries of the exclusive use area and whether the reference to section 37(1)(c)(i) (which would obviously be a different section number pursuant to the new legislation), act as a specific provision. In the meantime, I would suggest reviewing your exclusive use plans and assess how those plans depict the boundaries of the exclusive use area.
Many thanks Jessica for this advice.
A quick question…
Our scheme’s By-Law for our EUA carparks is totally silent re maintenance conditions, so I guess this means the beneficiary lot owners inherit general maintenance responsibilities in full (except re structural integrity?).
General maintenance presumably includes keeping the carparks clean and tidy.
There is interest amongst some owners in transferring the ‘clean and tidy’ responsibility back to the body corporate, presumably so the annual cleaning of our carpark basement areas (which have a mix of EUA carparks and common pty driveways) can be done by the body corporate in one clean sweep (please excuse the pun) without having to bother with AM s.200(2) agreements with the lot owners.
Can you please advise if this is permissible and if so, what is the process? And if it requires a motion without dissent, can a NO vote by one or more owners be challenged by the other owners?
We have 9 exclusive use areas ( gardens including lawns). Our Bylaws state that the owner is responsible to keep the gardens ( not lawns) clean and tidy in exclusive use area. There is no statement for who mows. In the duties of the Resident Manager it states that they are responsible to mow the lawns in common property areas every 2 weeks. The committee has taken the view that as ‘exclusive use area lawn’ is also common property, therefore the Resident Manager is responsible for the lawn mowing, inclusive of exclusive use areas.
Our Bylaws don’t state who is responsible for lawn mowing maintenance in exclusive use areas, but it also doesn’t state ” specific to exclusive use” in the Manager’s duties that the responsibility of lawn mowing is their duty.
In your view, who is responsible for mowing the lawns in exclusive use area here= Owner or Resident Manager via BC with understanding that exclusive use area is also common property ?
Hi John,
This is a very difficult question to answer without reading the full documents in question, accordingly, your Committee should obtain formal legal advice on it. On your above summary the lawns would be common property however, simply subject to an exclusive use grant. However, you then have two contending documents which may determine who is responsible to maintain. It will come down to the wording of your exclusive use by-law and whether there is a specific provision which excludes maintenance of the lawns by the benefitting owner/occupier.
Hi,
Our Body Corporate consists of 9 stand-alone houses within their own EUA but was developed under a building format plan. The Committee have considered making a special resolution to devolve BC responsibility for roofing membranes and foundations to individual owners. Is this possible to do? Are you aware of any precedents?
Hi John,
I am on a committee of 95 properties, some free standing, some in blocks of 4 or 5 double storey units, and 1 block of 8 Units.
Between the properties there are fences – some timber and some block walls.
The committee of 7 “experts” have 7 different “expert” views of whose responsibility it is to maintain these fences.
We are due for a complete repaint throughout the complex and the fences have been included in the scope of works, but we are in disagreement re the maintenance of the fences – some in dire need of attention. Some fences are between EUAs and some between EUA and CP.
Is there simple, straightforward answer?