Who is responsible for maintenance and repairs continues to be one of the most prevalent issues for owners and bodies corporate.
Waterproof membranes are one of the most common, and misunderstood, maintenance issues within a building.
This article will outline the responsibilities for waterproofing membranes along with the common ancillary issues which arise.
Common property or a lot
As a general rule the starting point for any maintenance issue is whether the item in disrepair forms part of the common property (where the body corporate is responsible) or part of a lot (where the lot owner is responsible).
Accordingly, when lots are created in a standard format plan (which is common for standalone houses) the lot owner will be responsible for any waterproof membranes in their lot.
However, when the lots in the scheme are created in a building format plan, the regulation modules transfer the maintenance responsibility of some (but not all) waterproof membranes to the body corporate by relevantly providing:
To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must…maintain in good condition…roofing membranes that are not common property but that provide protection for lots or common property
Importantly, it is only roofing membranes that “provide protection for lots or common property” in a building format plan which become the responsibility of the body corporate.
A common misconception is that in a building format plan, the body corporate is responsible for all waterproofing membranes in the building.
However, although a bathroom waterproofing membrane may provide protection for a lot, it is not a roofing membrane.
This position was confirmed in The Dalgety (Apartments)  QBCCMCmr 118 where the adjudicator relevantly provided:
“…However, I do not consider waterproofing within the bathroom of a lot can rationally be categorised as a roofing membrane…”
Balconies and rooftops
For lots created in a building format plan, the most common roofing membranes are those located:
- within a balcony of a lot (which acts as a rooftop structure for the lot below); or
- on the common property rooftop of the scheme…
The body corporate is responsible for maintaining these membranes.
Many older buildings were not constructed with a waterproofing membrane on balconies. At the time of construction, building standards did not necessitate such a membrane to be installed like in more contemporary developments.
Importantly, the body corporate’s maintenance obligations do not extend to an obligation to carry out an improvement to install a new waterproof membrane except in limited circumstances.
In Bayview Tower  QBCCMCmr 161 the adjudicator relevantly provided:
there was no duty on the body corporate under this section to repair a membrane if the balconies are constructed without a membrane
However, in Sanctuary Gardens  QBCCMCmr 570, the adjudicator provides:
I find that there is no duty on the body corporate under this section to repair a membrane if the balconies are constructed without a membrane. However, there is a duty on the body corporate to take steps to maintain the structure of a lot, and it may be that providing a membrane is the way to do that.
Accordingly, if the lack of membrane will otherwise cause a maintenance issue that the body corporate is responsible for (such as structural damage to the building) then the body corporate would be obliged to install a new membrane.
Otherwise it is the responsibility of the lot owner.
Tiles and ancillary works
To carry out waterproof membrane rectification works, any tiles installed on top of the membrane will need to be removed and replaced.
Those tiles (forming part of the lot) are not part of the roofing membrane and will remain the maintenance responsibility of the lot owner.
However, in Esplanade  QBCCMCmr 449 the adjudicator relevantly provided:
I further note that installing a new membrane on the open deck areas will require removal of the existing tiles, existing small wooden deck, and the spa. New tiles will be required to replace the existing tiles however the existing wooden deck and spa should be able to be returned to their positions after the waterproofing membrane is replaced. I also note the applicant has nominated a replacement tile that is quoted as less expensive then replacing the tiles with a like tile and pattern.
I am therefore satisfied the body corporate should pay the entire cost of waterproofing the open deck areas, retiling these areas, and replacing the existing fixtures…
The tiles are currently in good condition and unlikely to require any further maintenance for at least ten years. Given the replacement tiles and pattern nominated by the applicant has been quoted to cost less than a like for like replacement, the body corporate should pay the entire cost of replacement tiles
Accordingly, even though the lot owner is responsible for the maintenance of the tiles, they are only being removed and replaced as a result of the body corporate performing its duties. Any ancillary works (such as the replacement of tiles) is work that is part of the membrane replacement and therefore the responsibility of the body corporate.
Damage to the membrane
Even though the body corporate is responsible for the maintenance of the membrane, if a lot owner causes damage to the membrane, the lot owner is responsible for that damage. Relevantly, the regulation module provides:
To avoid any doubt, it is declared that, despite an obligation the body corporate may have under subsection (2), the body corporate may recover the prescribed costs, as a debt, from a person, whether or not the owner of the lot, whose actions cause or contribute to the damage or deterioration of the part of the lot.
This protection is commonly relied on by bodies corporate when:
- owners carry out improvements to their lot and damage the membrane;
- owners install linings on the floor above the membrane and this accelerates the deterioration of the membrane; or
- owners do not properly maintain the remainder of their lot (such as the tiles or grout) and this damages the membrane.
Damage from the membrane
Similarly, if the waterproofing membrane is not maintained by the body corporate, and this results in damage to the lot, the body corporate can be held responsible for the damage to the lot.
Although regularly argued about, waterproof membranes are not a simple issue. Many disputes will involve multiple different and competing considerations of the above issues.
Mahoneys have assisted and advised countless lot owners and bodies corporate on specific waterproof membrane (or other maintenance) issues.
Article Contribute by Todd Garsden, Mahoneys Lawyers and Advisors