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Is my apartment my own?

April 2020

One of the aspects that are desirable about private property ownership is the freedom to do what one likes with one's property. However, when it comes to apartment living (usually unit titles), this freedom may be curtailed by conflicting rights of other unit owners of the development, particularly with regards to body corporate maintenance.

To quote the great utilitarian philosopher John Stuart Mill,"the freedom of the individual must be so limited: it must not render it injurious to others." To quote an even greater utilitarian philosopher, S'chn T'gai Spock, "the needs of the many outweigh the needs of the few. Or the one."

This philosophical tension between personal liberty, private property and the rights of others is reflected in the not-so philosophical Unit Titles Act 2010, which allocates to both individual unit owners and the body corporate rights and responsibilities regarding alterations, repair and maintenance of units.

Unit Owner's Rights and Responsibilities:

The unit owner's right to "quiet enjoyment"

The Unit Titles Act gives an owner of a unit a general right to have "quiet enjoyment" of their unit, without being interfered with by other owners, occupiers or the body corporate. This includes the unit owner's rights to make any alterations, additions or improvements to their unit, so long as these are within the boundaries of the unit and don't affect other units or the common property. However, this right to do what one chooses is restricted by the Unit Titles Act & regulations, by the interests of other owners and by the need to maintain the shared areas of the development.

For example, while section 79 allows a unit owner to make additions to their unit, this is subject to section 80(1)(h) which requires a unit owner wishing to make additions to their unit to firstly notify the body corporate of their intentions before the work starts. Section 80(1)(i) also requires that the additions must not materially affect other units or common property without the body corporate's consent. As such, if you're a unit owner, you have carte blanche to paint your walls lime green, put tiger print carpet down, or install a wall gallery for your stuffed animals, as these alterations would not be encroaching on other areas of the development. However, building monkey bars to hang off the balcony of the unit above you without the consent of the body corporate may get you into hot water.

The unit owner's responsibility to repair

Section 80(1)(g) of the Act states that a unit owner has an obligation to repair and maintain their own unit, so that no damage or harm is or could potentially be caused to other units, infrastructure, or common property. Again, here we see a limitation on a unit owner's freedom to do what they want with their property, including the freedom to let the property be a hazard to others!

Body Corporate Rights and Responsibilities

Body corporate maintenance

A unit owner's repair abilities and obligations in section 80(1)(g) are subject to the body corporate's wide obligation to maintain the development.

Firstly, if a unit owner does not complete repairs to their unit and it becomes a risk to other units or the development, the body corporate has the right to carry out the work themselves – and recover costs for doing so.

Further, under section 138(1) of the Act, the body corporate is obligated to maintain and undertake repairs of building elements and infrastructure that relate to more than one unit. This section has been interpreted by the courts as conferring a pretty wide obligation to repair, with the body corporate having responsibility in many instances for things such as balconies, guttering and retaining walls.

The courts have also decided that a body corporate is entitled to carry out repairs under this section without giving unit owners a chance to effect their own repair work first. As the body corporate can recover costs of repair from unit owners, this may give rise to disputes about the cost-effectiveness of repair work undertaken by the body corporate.

The purpose of this wide maintenance obligation is to ensure that the body corporate undertakes works that are in the interest of all of the unit owners, to ensure that the development is kept up to a uniform standard, and to ensure that disputes over responsibility for the repair of things that affect more than one unit don't arise between owners.

Right of access

One aspect of a body corporate's general obligation to repair and maintain that might be surprising to unit owners is that the body corporate also enjoys fairly broad rights of entry into units in order to undertake repairs.

Section 138(3) allows the body corporate to access at all reasonable hours any unit to enable it to carry out repairs and maintenance. This overlaps with section 80(1)(a) of the Act, which states that unit owners must permit the body corporate to enter the unit (with reasonable notice, unless in the case of an emergency) in order to conduct repairs or maintenance. Under section 80(1)(a), the body corporate is also entitled to enter to view the condition of the unit and to check that the unit owner isn't doing anything with their unit that might affect other units or shared areas.

In Conclusion…

While the repair and maintenance obligations under the Unit Titles Act do limit personal autonomy, having the body corporate arranging repairs and maintenance is often a significant benefit to owners and helps to maintain the value of the development.

Most if not all property purchases involve some trade-offs - if you are looking to buy into a group ownership structure it pays to be aware that you may be trading off some of the freedoms you might otherwise expect to have.

For more information or if you have any questions on body corporate matters, please contact Blair Franklin at Holmden Horrocks.

Written by Julia Holden (Litigation Junior) with input from Blair Franklin (Property Partner) and Bruno Gin (Property Partner)