Strata Maintenance Obligations – How Courts Draw the Line Across Australia

Living in strata is becoming increasingly common across Australia, driven by the affordability, convenience and access to established infrastructure. However, with shared walls and shared amenities comes a complex framework for maintaining the property.

Repair and maintenance obligations are often a major point of contention within owners corporations or bodies corporate. Understanding who is responsible for what is essential to protecting both individual owners’ assets and the shared assets enjoyed by the community.

Common property vs lot property – who is responsible for maintaining what?

Owners corporations and bodies corporate across Australia and New Zealand, are legally required to maintain and repair common property. Determining who must repair particular assets depends on whether they form part of the lot or the common property.

In NSW, legislation is the starting point. Lot property is generally defined as the cubic space within the inner surface of the walls, the upper surface of the floors and the lower surface of the ceilings, as shown on the strata plan.

This excludes structural cubic space unless specifically described as part of the lot. Common property is therefore everything not included within a lot.

The leading NSW authority on this distinction is Seiwa Pty Ltd v Owners Strata Plan 35042 [2006] NSWSC 1157 (Seiwa). The Court held that lot boundaries are fixed at the time of registration of the strata plan, and any assets installed before registration form part of the common property. This principle has guided courts and tribunals in determining responsibility for repairs.

Other states adopt similar principles, though with nuanced differences. In Western Australia, Topic v Owners of Raffles Waterfront Strata Plan 48545 [2016] held that an item is not common property if it is not permanently fixed, can be removed without tools, and is not a standard feature of buildings designed for human occupation, even if installed before registration.

In Victoria, Owners Corporation PS508732B v Fisher [2014] established that the interior face of the building structure, rather than the upper surface of any material affixed to it, forms the boundary of the lot. This means items such as waterproofing are considered lot property. This differs from the NSW position, where waterproofing is generally treated as common property.

How courts across Australia define the duty to repair

Courts in all jurisdictions have considered the extent of an owners corporation’s obligation to maintain and repair common property. In NSW, Seiwa remains the benchmark case, setting out several key principles:

• The obligation is to maintain common property and prevent it from falling into disrepair. It is a strict obligation, and once disrepair occurs, the owners corporation is in breach.
• It is irrelevant whether the owners corporation took reasonable steps.
• The obligation includes taking preventative measures.
• It extends to rectifying defects in the original construction.
• Contributory negligence by an owner or occupier is not a defence.
• Lot owners may recover significant damages for breach.

Following Seiwa, NSW courts have continued to apply a strict interpretation. In Trevallyn Jones v SP 50358 (2009), the Court found the owners corporation had not done enough to meet its obligations. More recently, Owners Brown v The Owners – Strata Plan No 92562; Nakkan v The Owners – Strata Plan No 92562 [2025] confirmed the principles in Seiwa and held that timber decking on balconies was common property, making the owners corporation responsible for its repair.

Other jurisdictions have taken a slightly more flexible approach. In Queensland, courts have recognised circumstances where a body corporate is not immediately in breach. In Klinger v Costa D’ora (2007), the Court held that the body corporate was only in breach once it became aware of the defect. In Tower Mill Motor Inn (2008 QLD) and Kitchener Place (2009 QLD), the Courts emphasised that bodies corporate should be given a reasonable opportunity to comply with their obligations before orders are made.

Despite these differences, the underlying principle remains consistent: bodies corporate must ensure common property is properly maintained, and courts will intervene where they fail to meet this duty.

Summary

Across Australia, the core principle is clear: collective owners are the custodians of a building’s structural integrity and shared assets. Owners corporations and bodies corporate carry the responsibility to ensure common property does not fall into disrepair, and courts have shown a willingness to enforce this obligation strictly, particularly in NSW.

Regular maintenance and timely repairs are essential not only to comply with legal obligations but also to protect the value and amenity of the property for all owners. Understanding the distinction between lot property and common property, and the legal duties that flow from that distinction, is fundamental to effective strata management and harmonious community living.

If you require guidance on common property maintenance, contact our team on 1300 144 436 or visit gracelawyers.com.au