QLD: Q&A Sharing Facilities in a Mixed Use Development

These articles and Q&As about where responsibilities lie for a shared and common property in mixed use developments in QLD

Table of Contents:

• QUESTION: Our building is mixed-use with a commercial CMS and residential BMS. The BMS and CMS are silent on the roof maintenance. Commercial does not want to contribute but residential do not think it should be only their cost. How do we resolve this?
• QUESTION: The BMS Plan in our mixed use highrise outlines the areas not to be used by commercial lots, however, the Committee has allowed them to use these areas. Is this right?
• QUESTION: Our building has two bodies corporate. We have a common area shared driveway however we’re not sure which body corporate should be policing current parking issues.

Question: Our building is mixed-use with a commercial CMS and residential BMS. The BMS and CMS are silent on the roof maintenance. Commercial does not want to contribute but residential do not think it should be only their cost. How do we resolve this?

We are in a building format plan. Commercial shops on the ground level are a separate commercial Body Corporate. The eight floors above are a separate accommodation Body Corporate.

Our main roof needs fixing and think both BCs should pay their share.

Our common charges are split but the BMS and CMS are silent on the roof maintenance. The accommodation BC believes the commercial BC should be paying its percentage share, but the commercial lot owners are reluctant. The accommodation BC is saying this is common property for all BCs and not just the residents. What do we do now?

Answer: The only right the residential lot would have to seek recovery of those maintenance costs from the commercial scheme is if the BMS included such a right.

The rooftop would seemingly be the common property of the residential body corporate. It, therefore, has a statutory maintenance obligation to maintain the rooftop.

The only right the residential lot would have to seek recovery of those maintenance costs from the commercial scheme is if the BMS included such a right. This would need a specific review of the terms of the BMS. Generally, such a right would not exist unless the commercial lot made use of the rooftop area (but it is still possible that a reimbursement rights exists).

To confirm the position, the body corporate should seek legal advice and provide a copy of the BMS.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #626.

Question: The BMS Plan in our mixed use highrise outlines the areas not to be used by commercial lots, however, the Committee has allowed them to use these areas. Is this right?

Our large highrise apartment block is governed by a BMS and has 3 commercial lots on the ground floor.

The BMS Plan clearly outlines the areas where these commercial Lots are not permitted to access i.e. 3 lifts and a foyer area. They do not contribute financially to these areas.

The BC Committee has allowed the commercial Lots to use these areas without consulting Lot Owners, causing considerable damage.

Can the committee allow a practice to happen over a BMS statement? If so, what would the decision making process be?

Answer: Be sure you have a clear understanding of what is and isn’t permissible under the terms of the BMS

If you believe the terms of the BMS are being breached you should raise the matter with the appointed BMS representative for your lot, perhaps through the Committee for your scheme, and they can bring up the matter with the building management group.

Each building management statement is unique so we can’t comment on what the terms might be. It is worth reading them and then reading them again and again to get a clear understanding of what is and isn’t permissible under the terms of the statement. Presumably, you would need to review the sections relevant to what decisions the building management group can take and what steps to take in the event of a dispute.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #503.

Question: Our building has two bodies corporate. We have a common area shared driveway however we’re not sure which body corporate should be policing current parking issues.

Our building has two bodies corporate – one for residential lots, and one for commercial lots.

It has a common area shared driveway down the side of the building, and round the back for loading vehicles etc.

Both BC’s by-laws state no parking on common areas without written permission from the BCC. But which BCC? Can the commercial BCC give permission to a commercial owner without consulting the residential BCC?

The caretaker/letting manager parks there frequently, as does his receptionist. As he is the chairman of the commercial BCC, he believes he has no need to get the written permission. The BCC for residential owners seems to be disadvantaged with no way to prevent this from happening.

Answer: The driveway simply has to belong to one of the bodies corporate with access rights granted to the other.

If there are two bodies corporate, the driveway simply has to belong to one of them with access rights granted to the other. In theory, it is possible, but in practice, I have never seen bodies corporate with joint ownership of common property.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #275.

So you need to start with the survey plans of each body corporate to determine who owns the area you refer to and after that it is the rules of that body corporate you need to look at. It has to belong to one or the other.

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Read next:

• QLD: Q&A Can a Lot Owner Access Body Corporate CCTV Footage?
• QLD: Can a Body Corporate Tow a Car?
• NSW: Q&A Mixed Use Developments, Maintenance Bills and the BMS

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