The warmer weather at the start of spring can trigger increased termite activity in properties run by bodies corporate. Therefore, bodies corporate need to keep on top of inspections and treatments, as preventing infestations can save thousands of dollars.

Who is responsible for maintenance at my body corporate property?

Pest management in a complex can be both the responsibility of the owners and bodies corporate. Sometimes it can be difficult to determine who is responsible for what. An important first step is to find out which plan of subdivision your body corporate has been registered under.

Bodies corporate in Queensland are registered under a plan of subdivision. This is recorded as a survey plan which shows the boundaries of the common property and the lots in that scheme.

There are several types of survey plans. Boundaries will be defined differently depending on the type of plan registered. The 2 common types of survey plans are:

• building format plans also known as building unit plans; and
• standard format plans also known as group titles plans.

Contact Titles Queensland on 07 3497 3479 to obtain a copy of your body corporate’s registered survey plan.

Once you know the boundaries of the lots and common property from the survey plan, you can then determine the maintenance responsibilities within your community titles scheme or development.

Read more about maintenance responsibilities by format plan on our web pages.

Does maintenance include pest control?

Maintenance responsibilities, for both an owner and a body corporate, include work that is needed to prevent damage.

Maintenance may also extend to undertaking pest control that is necessary to keep the lot and common property in a good and structurally sound condition.

For example, a body corporate or lot owner may have to take steps to prevent termite damage to the common property or lots.

See the adjudicator’s order in Magnetic International Resort Hotel [2013] QBCCMCmr 421 for more on who is responsible for pest control.

What maintenance must a body corporate do?

A body corporate (the collective of lot owners) must maintain the common property in a good and structurally sound condition.

Generally, this includes the body corporate being responsible for any pest inspection, prevention and treatment work carried out on common property.

Each year the body corporate must fix an administrative fund budget and a sinking fund budget. Owner’s contributions (levies) to the administrative fund budget cover the regular maintenance of the common property.

What maintenance must owners do?

The owner of a lot must maintain their lot in good condition and, in particular, areas of a lot that are readily observable from another lot or common property must be kept in a clean and tidy condition.

A lot owner is responsible for any pest inspection and treatment work that is needed within their lot.

Maintenance can include work that is needed to prevent damage, such as termite infestations.

Who is responsible for damage caused by termites?

If a body corporate does not maintain common property and it results in damage to a lot, the body corporate may be liable for the damage.

Likewise, if an owner does not maintain their lot and there is damage to another lot or the common property, the owner who failed to comply with their legislative responsibility may be responsible for the damage caused by their inaction.

Can owners jointly carry out preventative routine termite and pest control?

It can be cheaper and easier for the body corporate to organise work, or a service, for many lots, instead of each owner or occupier individually organising work on their own lot.

To benefit lot owners and occupiers, the body corporate may offer to supply or arrange for services that owners or occupiers are responsible for. For example,

maintenance services such as cleaning, repairs, painting, pest control or extermination and mowing.

Bodies corporate often do this at the same time as it does work or organises services that it is responsible for on common property. In some instances, it can save money for individuals if the service contractor offers a bulk discount. It can also be more convenient to have the tradespeople onsite at the one time.

This type of arrangement is called a “supply of service” agreement.

The offer is optional. Lot owners cannot be forced to participate in a “supply of service” arrangement. The body corporate can only supply a service to an owner or occupier if it has an agreement with that individual owner or occupier.

A body corporate (at a general meeting) or its committee cannot pass a motion that requires lot owners to accept an offer to provide a service for the benefit of owners and occupiers of lots. Additionally, a body corporate cannot adopt a by-law that compels or implies agreement from a lot owner or occupier to participate in such an arrangement for the supply of services. A supply of service process requires individual agreement from each owner (Somerset Park [2018] QBCCMCmr 164).

The body corporate can recoup the costs it incurs as part of the supply of service agreement with an individual owner or occupier. The body corporate cannot charge users of the service for its administrative work and cannot make a profit from the supply of the service.

Supply charges for the service must be paid by each user. For example, the lot owner who chooses to enter into a supply of service agreement with the body corporate must reimburse the body corporate for their portion of the costs of the service. This money is not to be used as part of the body corporate levies.

However, the charge for an agreed service can be included on the levy notice as a separate amount in addition to the administrative or sinking fund levies.

What happens if an owner is not performing their required maintenance?

If an owner does not perform the required maintenance of their lot and there is a risk to the common property or other lots, the body corporate may carry out the work required and can then recover the reasonable cost of carrying out the work from the lot owner as a debt.

This applies to work that an owner or occupier is obliged to carry out under:

• the Act or one of the regulation modules, including a provision requiring an owner or occupier to maintain lot in the scheme;
• a notice given under another State Government or Commonwealth Act;
• the community management statement for the scheme, including the by-laws;
• an adjudicator’s order; or
• the order of a court.

How can we resolve a dispute about who is responsible for existing damage?

Each situation needs to be considered on a case-by-case basis. Generally, you should find out where the infestation originated, and who was/is responsible for maintenance at the site where the outbreak started.

A few examples, in the case of termites:

• In a building format plan, with both common property and an exclusive use area immediately adjacent to the building, it was found that an infestation originated from common property. In this example, the adjudicator determined that the termite infestation had resulted in work needing to be carried out to repair the consequential damage to an owner’s lot. The adjudicator found that the body corporate was liable to pay for the damage to the owner’s property due to their failure to carry out inspections and ensure the termite barrier in both common property and the exclusive use areas was maintained (Torquay One Eight Five [2019] QBCCMCmr 125).

• Under a standard format plan of subdivision, adjudicators have held that lot owners would usually be responsible for taking measures to prevent termites from entering their lot (Clearwater on Burleigh Cove [2020] QBCCMCmr 516). Where there has been evidence of termite infestation on the common property for the scheme, each lot owner has an obligation to take preventative measures to maintain their lot in good condition.

• For a standard format plan, in situations where the lots in a building have a common wall with other lots, it has previously been found that it would be sensible for the owners to agree on the implementation and cost of a preventative termite treatment and system. The body corporate can co-ordinate the service with the owners’ agreement. (Garden City Estate [2007] QBCCMCmr 531)

For more information, see our webpages on maintenance in a body corporate.  You can also search previous adjudicator’s orders on AustLII.

If internal dispute resolution attempts have failed at your scheme, you may consider lodging a dispute resolution application.

If you have any questions, you can call the BCCM Information and Community Education Unit on 1800 060 119 or submit an online enquiry.

Article Contributed by The Commissioner for Body Corporate and Community Management

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