Who has to fix a waterproof membrane? Not always cut and dry

It’s a simple proposition in theory: a body corporate is responsible for maintaining common property, including keeping common property waterproof membranes watertight.

But what about the membranes that aren’t common property or membranes in exclusive use areas – is the body corporate responsible for those?

The baseline position

Section 159 of the Body Corporate and Community Management (Standard Module) Regulation (Qld) relevantly provides that, for lots created under a building format plan, a body corporate is required to maintain common property in good condition.

This requirement includes waterproof membranes in all common property areas. Common examples of those are membranes around pool areas, in planter boxes, and in basement areas (particularly in buildings with multiple car park floors).

Section 159 of the Standard Module also provides, relevantly, that a body corporate is also required to maintain “roofing membranes that are not common property but that provide protection for lots or common property“.

It is important to note that a ‘roofing membrane’ is not just a waterproof membrane in a roof; it also means a membrane in a structure that acts as a roof for lots or common property below.

A body corporate would therefore be ordinarily required to maintain the following waterproof membranes that are not common property:

• in the courtyard of a lot on ground level if that membrane protects a car park below;
• on the balcony of a lot that protects other lots below; and
• arguably, any waterproof membrane in a bathroom of a lot.

Exclusive use areas

The cause of a large amount of disputes in this area is often waterproof membranes in exclusive use areas. Bodies corporate inevitably argue that, because a lot owner has be provided with exclusive use of common property, they should assume all maintenance responsibilities for that area; lot owners argue that the area is still common property and maintenance is therefore the domain of the body corporate.

The source of the confusion is twofold. First of all, section 173(2) of the Standard Module provides that, if an exclusive use by law does not specifically make the body corporate liable for the costs to operate and maintain the exclusive use area, then the lot owner with the use of the area becomes liable.

However, the section goes on to make the following important distinction for buildings created by building format plan:

1. If the exclusive use by-law specifically provides that a lot owner must maintain roofing membranes in that exclusive use area, then the lot owner is responsible for its maintenance; and
2. If the exclusive use by-law does not specifically provide for the maintenance of roofing membranes in the exclusive use area, the body corporate is responsible for its maintenance.

The decision in Esplanade [2014] QBCCMCmr 449 provides that where tiles are installed on top of a waterproof membrane (that is the body corporate’s responsibility to maintain), and the body corporate consents to the installation those tiles, then it will be the body corporate’s responsibility to replace the tiles should the membrane underneath also require replacement.

What about improvement works by a lot owner?

A spanner in the works can often be thrown when a lot owner performs works in an exclusive use area (either with or without the body corporate’s permission), and in the course of the works a waterproof membrane is damaged. We have seen a number of instances where lot owners have had shower and bathroom membranes poorly installed causing damage not only to that lot owner’s unit but also to the building as a whole.

It is important to note that the body corporate’s responsibility to fix a damaged waterproof membrane is not changed if it is damaged by a lot owner. The damage must be fixed before contribution or compensation is sought from the party that caused the damage. Once the damage is repaired, the body corporate can claim the cost of the damage back from the lot owner.

We have acted for bodies corporate, lot owners, building managers, developers, and everyone in between; and our expertise is second to none. If you would like more information, or would like to discuss your situation with us, please do not hesitate to contact us.