The applicants are unit owners in the respondent’s strata complex consisting of 88 class A units, 84 of which have an entry way comprising a floor to ceiling combined window/door (the window/door). On the upper levels the window/door opens onto a balcony, and on the lower levels it opens onto a small porch that in turn leads to the common area. The balcony for each unit is a designated subsidiary of the units plan.
Due to moisture damage to the cedar timber frames of the window/door caused by condensation, on 24 December 2018 two motions were passed. Motion 1 stated that the respondent was not responsible for maintaining the window/door adjoining the unit balcony and motion 2 stated that an individual owner who replaces the window/door with a different configuration to the original must obtain express permission from the respondent in accordance with its rules as such change was considered to be a structural alteration.
The applicants sought a review of these two motions.
Who is responsible for maintaining the balcony window/door – the owners corporation or individual owners?
ACAT was of the view that the respondent will only have responsibility for the maintenance of the window/doors if: (a) the window/door is a load-bearing wall (it was not); or (b) the window/door is part of the balcony (it was not – ACAT stated that ‘balcony’ includes the platform and the railings on it but not the door leading onto the platform); or (c) the window/door is common property.
On the issue of common property, section 15 of the Unit Titles Act 2001 (UTA) states that if a class A unit is bounded by an external wall of the unit, then the boundary lies along the centre of the wall and the outside half of the boundary is common property. This means that the window/door will be common property if it is considered to be an ‘external wall of the building’. Following this, the Tribunal firstly ruled that the solid glass window/door encloses the unit and effectively operates in the same manner as a stone or brick wall thus can be considered as a ‘wall’. ACAT held that there is an argument that the window/door is on the external wall of the structure. However, the complicating factor is that they open not onto common property, but onto a unit subsidiary. In the case of the 42 units that have upper-level balconies, and the 16 units with rear-balconies, the window/door opens from the unit to the balcony, which is a designated unit subsidiary. Given at no point do the window/doors on balcony units border common property, those window/doors are not an exterior part of the building and are not the responsibility of the owners corporation.
Turning to the 16 ground floor units which are also bordered by a ‘unit subsidiary’. These window/doors do not adjoin common property, but are rather internal dividing walls between the unit and a unit subsidiary. Consequently, the maintenance for these is the obligation of the unit owner.
Accordingly, ACAT made no orders in relation to Motion 1 other than to note that the assertion that the window/doors are not walls may not be correct.
Can the owners corporation make rules about the replacement of the doors?
The applicants sought an order that motion 2 is void because the owner is not making a structural alternation or changing the configuration of the window/door adjoining the balcony so long as it is the same size as the original element.
The rules of the respondent required unit owners to obtain express permission from the owners corporation to erect or alter any structure in or on the unit or the common property.
ACAT held that it is certainly probable that installing a new door/window with a new configuration would be structural if it includes some interaction with the slab or the wall. However, it would not inevitably be the case. For example, the replacement of glass panels alone may not involve structural work.
Accordingly, to the extent that Motion 2 purports to ‘deem’ the replacement of the window/door to be a structural alteration, it is beyond power. Whether it is in fact a structural alteration is a question of fact to be decided in the circumstances of the case.
Accordingly, Motion 2 was repealed under section 129(f) of the UTMA.