A recent decision regarding maintenance, that should have sent waves through the strata industry, appears to have fallen on deaf ears. It’s not a ground-breaking decision. In fact, similar decisions pop up regularly. And yet, despite those regular reminders from adjudicators, the vast majority of bodies corporate are doing it wrong. Why? Because it’s one of those occasions where the law seems counterintuitive, at least in a practical sense.
In a nutshell, the decision confirmed a body corporate can’t use its funds to paint the entire building – owners are responsible for painting their bits (balconies and exclusive use areas).

A couple of years ago I met Dave Gleeson, the lead singer of the iconic Australian rock band – The Screaming Jets – in a loading dock at the State Theatre in Sydney when he was working with another iconic Australian rock band – The Angels. He was having a sneaky durry before sound-check and I enquired as to whether that was the full extent of his vocal warm-up. He kindly introduced himself and we shot the breeze for a couple of minutes. He bewailed that, as the only smoker in the band, he felt outcast and persona non grata during his pre-show ritual. Just as I was about to recite his own lyrics to him – “they don’t care and it’s just not fair”– one of the Brewster brothers summoned Dave to the stage and inadvertently rescued me from humiliation.

But what does Dave have to do with body corporate maintenance? Well, apart from unequivocally confirming AI had no input into this article, it comes down to this – fairness and practicality do not prevail over the law. Whether or not Dave thinks it’s unfair and impractical for him to be ostracised from the band on account of his smoking habit, the law prevents him from smoking inside. Similarly, whether or not you think it’s unfair and impractical that the body corporate can’t engage a painter to paint the entire building, the law prevents the body corporate from spending money on maintaining part of the building someone else is required to maintain.

In Waves [2024] QBCCMCmr 269 (Waves), the adjudicator said:

What is considered fair, or practical, or has occurred in the past is not relevant to determining statutory maintenance responsibilities. Rather, responsibilities are apportioned by the application of the law to the circumstances. A body corporate cannot take on the financial responsibility of an owner, just because owners think that is reasonable.

The circumstances and outcome of the dispute in Waves were:

1. The scheme was created by a building format plan;
2. The body corporate engaged a contractor to paint the building;
3. The painter’s scope of works included painting within balconies and exclusive use areas that were the responsibility of individual owners to maintain (Private Areas);
4. The motion to engage the painter was invalid because it purported to approve the expenditure of body corporate funds to maintain Private Areas;
5. The adjudicator reminded the body corporate it could only engage a painter to paint Private Areas if it entered into an agreement with the relevant lot owner to pay for that work;
6. The adjudicator reminded the body corporate that where an owner failed to maintain its lot in good condition, the body corporate could obtain an order that the owner conduct particular work and, where it failed to conduct that work, the body corporate could arrange for the work to be done and recover its costs from the owner as a debt.

Let’s face it, most bodies corporate don’t follow the law when it comes to painting. And no wonder – imagine how difficult it would be to coordinate the painting of a 500-unit highrise. You’d need 501 quotes from the prospective painting contractor and 500 agreements between owners and the body corporate. Although the engagement of the painting contractor may only require an ordinary resolution (if there’s no change to the colour scheme), practically, to have the whole building painted, every owner would be required to enter into a written agreement with the body corporate (a de facto unanimous resolution). And if any owners refuse to join in, then what? You march off to the Commissioner’s Office seeking orders compelling them to paint their balconies (and wait for a year until a decision is made). That all sounds very impractical.

But it only takes one owner to shut the job down if you take the easy way out.

Perhaps the law should be changed to keep things simple? It would be easier to make the body corporate responsible for the maintenance of all the exterior of the building and to have owners contribute to that by, for example, changing the method by which the contribution schedule lot entitlements are determined or by deeming owners to have entered into an agreement with the body corporate so the expenses associated with each lot are recoverable from the owners as a debt.

In conclusion, it’s Better to stick to the law than risk suffering the consequences. If you need a Helping Hand deciphering your legal obligations reach out to Stratify Legal at any time. As for Dave, I doubt he’ll ever see my face again.