We are often asked by members of Bodies Corporate what may be done if part of a Lot is in need of repair, but the Lot owner won’t attend to it themselves. Often it is not just concerns for appearance sake. Think of the situation where older style air conditioners are affixed to the outside of a lot. If the supports are rusted and in poor condition, this could pose a real safety risk, not to mention a liability risk for the Body Corporate. Although the air conditioner goes through common property, if that air conditioner only services the Lot it is attached to, it is not the responsibility of the Body Corporate to maintain and keep safe, but the responsibility of the Lot owner.
As such, is it possible for the Body Corporate to force the Lot owner to fix the situation? This all depends. If it is just an issue of appearance and the owner does not agree there is a real issue with the appearance, probably not. The Body Corporate cannot require an owner to carry out work, or have work carried out for that matter, that is specific to the owner’s lot, simply by virtue of a Committee meeting, Annual General Meeting or even an Extraordinary General Meeting resolution.
In a matter that went to adjudication, the Adjudicator found that:
“…the body corporate must have the agreement of the person to who the services are to be supplied that they want / require the service. This is not simply a majority resolution. Rather it requires the specific agreement, preferably in writing so the agreement is evidenced, of each individual owner who seeks to avail themselves of the service … I conclude that the legal position cannot be any clearer than this.”
However, when works are needed to be done because of poor condition and safety factors, there is a way forward. If there is a real issue of maintenance and safety, the body corporate may claim the Lot owner is failing in their statutory duty under the relevant legislation to maintain the Lot in good condition. If the owner continues to fail in this duty, the Body Corporate may carry out the work required and recover the reasonable costs of that work as a debt. However, in the absence of a breach of that duty the cost of the work cannot be sheeted home to the owner without their agreement.
In the face of a continuing breach of duty by a Lot owner, there is no requirement for a general meeting resolution to authorise this recovery of costs should it become necessary. In fact, the Committee may authorise the expenditure (depending on the amount and the limit of Committee spending for that particular Body Corporate) unless it is a restricted issue for the Committee. The amount then becomes a Body Corporate debt to the Lot owner.
However, if there is more than one Lot that is affected, and if a general meeting is coming up, it may be helpful for the sake of clear communication to put a motion to the Body Corporate which approves the Committees intention to:
1. Send a notice to any relevant Lot owners that the particular works are required to be carried out; and
2. If the Lot owners do not carry out the required work within a reasonable time frame, the Body Corporate will do so as is its right under the legislation, and recover costs from the relevant Lot owners as a Body Corporate debt.
If you have any queries regarding Body Corporate issues, please contact Jane Macdonnell of McColm Matsinger Lawyers.