Who Is Liable for Maintenance - Common Property and Collective Responsibility

The default position - and where it gets complicated

The headline rule in South Australian strata and community-title law is straightforward. Under Section 25 of the Strata Titles Act 1988 (SA), the strata corporation must keep common property in good condition. Under Section 5, common property is everything outside the cubic airspace of a unit unless specifically defined otherwise. Anything inside the unit including internal walls, fittings and fixtures owned by the unit holder is the unit holder's responsibility. The Community Titles Act 1996 (SA) reaches the same outcome through Sections 28 (corporation maintenance duty) and 75 (the lot/common-property boundary).

That sounds clean. In practice, almost every real-world maintenance question lands in the grey area at the boundary - where common property abuts a unit, where fittings cross the line, where damage on one side is caused by failure on the other. The legal advice this article draws on was prepared for a South Australian strata corporation grappling with exactly those grey-area cases. The principles below are general; the specifics of any given case will turn on the plan of subdivision, the by-laws, and the cause of the failure.

The doctrine of collective responsibility

Where damage to a unit is caused by the failure of common property, or where damage to common property is caused by something on a unit, courts and tribunals tend to look for the cause rather than just the location. The principle that emerges is sometimes called collective responsibility: the corporation, as the entity responsible for common property, generally wears the cost of consequential damage that flows from a common-property failure, even if that damage shows up inside someone's unit. Conversely, where a unit holder's neglect or installation causes damage to common property, the corporation can pursue a contribution from that owner.

Collective responsibility is not a statutory term, it's a description of how the duty in Section 25 (and Section 28 for community title) tends to operate when applied to messy real-world facts. The legislation is silent on consequential damage, so the question often comes down to: who controlled the thing that failed, and was the failure foreseeable?

Worked example: wood rot in a window frame

The legal opinion was prompted by a unit with extensive wood rot in a window frame. The frame is structural and forms part of the external envelope of the building, which puts it on the common-property side of the line under Section 5. The advice confirmed that the corporation is responsible for repair or replacement, even though the rot manifests inside the owner's unit and even though the owner had not reported it earlier.

The reasoning: external windows and their frames are generally common property because they form part of the building envelope. The corporation's duty under Section 25 to maintain common property in good condition is not contingent on the unit holder reporting the problem as the corporation is expected to inspect and maintain proactively (see Strata Maintenance). Whether the corporation can claw back any of the cost from the owner depends on whether the owner's actions made the rot worse (e.g., painting over signs of rot rather than reporting them, blocking drainage that contributed to the rot).

Six common boundary scenarios

1. Window frames and glazing

External window frames and glazing form part of the building envelope and are generally common property. The corporation maintains them. Internal window furnishings (curtains, blinds, internal trim) are the unit holder's. See Maintaining Windows.

2. Floor tiling inside a unit

Tiling laid on the floor of a unit is generally a fitting within the unit and the unit holder's responsibility. Where the tiling has failed because the slab beneath it (common property) has shifted or cracked, the corporation may be responsible for the underlying repair, with the unit holder responsible for the cosmetic re-tile. The split turns on the cause.

3. Tree roots damaging pipes or slabs

Trees on common property are the corporation's responsibility. Where roots from a corporation tree damage a unit's pipes or slab, the corporation generally wears the cost. Where the tree is on a unit's exclusive-use area or the unit holder planted it, the position reverses. See Plumbing for the related question of which pipes are common property.

4. Internal doors

The front door of a unit is often a hybrid. The door itself might be a unit fitting, but the frame and the doorway in the structural wall are common property. Door hardware is usually the unit holder's. Where a door has warped because the frame has shifted, the cause is on the corporation side. See Maintaining Doors and Locks.

5. Multi-storey ceilings and floors

The slab between two units is common property. Where a leak in the upper unit damages the ceiling of the lower unit, the corporation often coordinates the rectification but pursues a contribution from the upper unit holder if their fitting (e.g., a hot water service, a shower membrane) caused the leak. See Hot Water Systems.

6. Balconies

Balconies are almost always common property structurally inlcuding the slab, the membrane, and the balustrade. Floor finishes added by the owner (tiles, decking) are often the owner's, depending on the plan. Failures of the membrane are corporation responsibility; failures of an owner-installed finish that damages the membrane below are usually the owner's. See Maintaining Balconies.

When the corporation should pursue a contribution

Even where the corporation is the party that pays initially (because the failure is on the common-property side), it can sometimes recover a portion from a unit holder. The legal advice flagged four considerations before deciding to pursue:

Was the unit holder's conduct a contributing cause? Failing to report a known issue, blocking access for inspection, or modifying common property without consent can shift cost onto the owner.
Was the failure foreseeable and avoidable? If the corporation could and should have caught the issue in routine inspection, pursuing the owner is harder. If the owner concealed the issue, easier.
Is the cost worth recovering? Litigation over $3,000 is rarely commercial. The corporation has Section 41 enforcement options (see Enforcing Owner Maintenance Obligations) but should weigh the cost of using them.
What does the corporation's insurance cover? If the loss is covered, the insurer may pursue subrogation against the owner's insurance — the corporation doesn't have to do it directly. See Insurance Claims.

Strata vs Community Title

The framework above applies to both strata and community-title schemes, but the boundary line sits in different places. In a strata scheme, common property is defined by Section 5 of the Strata Titles Act - broadly, anything outside the unit's cubic airspace. In a community-title scheme, the boundary between a lot and common property is defined by Section 75 of the Community Titles Act and tends to follow the surface of the land and the external faces of buildings on that land. Practically: in community title, more of what an owner thinks of as "their building" may actually be on their lot, and the corporation's repair duty is correspondingly narrower. See Community Title Governance.

How to reduce the risk of disputes

Inspect proactively. A rolling inspection programme catches issues before they fester into recriminations about who should have spotted what when.
Document the boundary. Where ambiguity exists, get a building surveyor's view before a problem arises. Recording it in the corporation's records saves expensive arguments later.
Use the by-laws. By-laws can clarify (without overriding the Acts) who is responsible for maintenance of items that span the boundary, for eg, by requiring owners to maintain installed fittings to a defined standard. See By-laws Explained.
Get legal advice early on novel facts. The cases where collective responsibility cuts both ways, where there's real argument about cause, are the cases where a one-off legal opinion (like the one this article draws on) pays for itself many times over.

Get in touch

If your corporation is wrestling with a boundary case where the answer isn't obvious, we're happy to talk it through. Acacia Collective manages strata and community title groups across South Australia and works regularly with the legal practitioners who do this kind of opinion work.

Call us on 1300 792 255 or email hello@acaciacollective.com.au.