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Passing the Buck: Who Pays the Bill for Lifts and other Common Property Plant and Equipment?

By Maxine Fenlon

5th December 2018

It is a common dilemma faced by many bodies corporate and owners of units. When (if ever) is a lot owner responsible for the costs of maintaining common property plant and equipment and other infrastructure (defined as ‘utility infrastructure’ in the Body Corporate and Community Management Act 1997 (“BCCMA”)).

On 9 October 2018 the Queensland Court of Appeal shed some light on the matter in the case of JM Family Holding Pty Ltd v Owltown Pty Ltd & Anor [2018] QCA260 when they considered the validity of some resolutions which purported to pass the costs of maintenance of a lift located in the common property to the body corporate.

The case involved a ‘private’ lift located on common property that provided access to Lot 8 and access to the roof by tradespeople and others for maintenance purposes.  Lots 1-7 accessed their lots via other means and could not access their lot via the lift in question.  Costs of maintenance on the lift were originally paid for by the developer, but when the developer sold Lot 8, the new owner considered that the body corporate should be paying these costs and motions were passed accordingly.

The owners of Lots 2 and 4 disagreed.  They asserted that the costs should continue to be paid by the owner of Lot 8 because the lift was predominately used by Lot 8 and was installed solely to benefit that particular lot.  The argument was that the body corporate was not responsible for the costs because the BCCMA provides that utility infrastructure must be maintained by the body corporate only to the extent that it does not relate to supplying services to a specific lot.

The matter was originally heard in QCAT and has been appealed several times, with the latest decision being that of the Queensland Court of Appeal.  The court has upheld the validity of the motions meaning that the maintenance costs are payable by the body corporate (and therefore the owners of lots as apportioned pursuant to their contribution lot entitlements) and not the owner of Lot 8.

The court found that it might be true that the lift would not be necessary but for Lot 8, however even so, it did not exclusively service Lot 8.  It also provided a benefit to others in the scheme who were free to use it for other purposes such as allowing tradespeople access to other parts of the building.

Now that there appears to be a clear test regarding the payment of utility infrastructure costs, it might be timely for committees and lot owners to consider any utility infrastructure located on their own common property.

Air conditioning units, security systems and alarms as well as lifts are all classified as utility infrastructure along with the more obvious pipes, cables and wires.   If the lot owner does not clearly and exclusively benefit from the infrastructure, the ‘buck’ might be able to be passed to the body corporate, or vice versa.

Maxine Fenlon, David Patton or another member of our Property Law team can assist you with any enquiry in this regard that you might have. We invite you to contact our Townsville or Sunshine Coast offices about this or other matters relating to community titles schemes, body corporate law or conveyancing.

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