Q: “If an owner builds a pergola, who is responsible for maintaining it? “

Q: “If an owner builds a pergola, who is responsible for maintaining it? “

Question: In our complex of nine units, the penthouse owner built a pergola and adjoining patio roof on their large landing. The patio roof needs repairs. Who is responsible for the repairs? Is the body corporate or the lot owner?

Answer: If you build it, you are typically responsible for maintaining it.

In Queensland, if you build it, then typically you are responsible to maintain it. The ‘large landing’ will either be on common property, or common property with exclusive use rights to the owner of the penthouse or simply on the title to the (penthouse) lot.

The default position under (say) the Standard Module is that in each of these three scenarios, the penthouse owner is responsible to maintain the patio roof; see sections 187(4)(b), 192(2) and 211(3).

There may, however, be exceptions, and the best way to start to track these down is to look for the approval for the improvement to be made. Approval is required to make an improvement to the common property for the benefit of the penthouse. So, there should be a committee or general meeting resolution for that approval. Once the approval is tracked down, it can be checked for details about maintenance obligations. Likewise, an approval is required to make an improvement inside an owner’s exclusive use area, so the same process should be followed.

That is however, unless the by-law already authorises the (patio) improvement. Where the by-law authorises the improvement, then the by-law should be checked for maintenance obligations. Finally, where the improvement is inside the owner’s lot, being the penthouse airspace, then the lot owner will be responsible for maintenance unless there was an approval (committee or general meeting resolution) and it provides to the contrary and that provision is not contrary to the Act. Such approvals are rare and usually given for a specific reason, such as the patio being constructed as part of a realignment or extension of the property boundary between the penthouse and the adjoining common property airspace.

This article by  Queensland Partner Michael Kleinschmidt first appeared in the StrataNews #703  weekly National Newsletter from LookUpStrata Pty Ltd.