Case Note ~ Tribunal affirms Maintenance Responsibility for Windows and Doors Opening onto Unit Subsidiaries does not fall to Owners Corporation

THE OWNERS – UNITS PLAN 3323 v MAKEHAM (APPEALS) [2024] ACAT 46

This was an appeal of a previous decision that determined an Owners Corporation (OC) was not responsible for the funding of repairs to doors and windows that opened onto the balconies or courtyards of two class A units at the complex. 

It was considered whether the windows and doors to be repaired are common property and therefore, the responsibility of the OC to maintain under section 24 of the Unit Titles (Management) Act 2011 (“UTMA”).

In a previous decision, McMillan & Anor v Owners Corporation – Units Plan No 79 [2019] ACAT 86 (‘McMillan’), the Tribunal rejected the argument that a glass door between the living room of a unit and the unit’s balcony was part of the boundary wall. As a result, the OC in McMillan was found not to have maintenance obligations because the glass door as an exterior wall was not common property according to section 15(b) of the Unit Titles Act 2001 (“UT Act”).

In this case, Tribunal referred to section 13 of the UTMA which defines common property as ‘all the parts of a parcel identified as common property’ in the units plan. The Units Plan in question did not identify the doors and windows, nor the walls in which they were placed, as common property.  Hence, the Tribunal formed the view that the site plan indicated the exterior walls adjoining common property form part of the common property and that those adjoining another part of a unit (i.e. the unit’s balcony, terrace or courtyard) are not.

 Applying McMillan as authority, the Tribunal found that the original Tribunal was correct in deciding the maintenance obligations rested with the individual unit owners and the appeal was dismissed.