Summary
ESM Strata have determined that Under Section 63 of The Strata Titles Act 1985 the party who benefits from the easement, is also responsible for the repair and maintenance of the utility service that forms part of that easement.
It is important to note, that an easement does not convert common property to a lot. It is still common property, and this is where the confusion lies.
In short, what does this mean?
- Any repairs or maintenance required for the provision of the utility that is for the sole use of a Lot, is believed to be the responsibility of that Lot.
- Any repairs or maintenance required for the provision of a utility that services 2 or more lots, is believed to be the responsibility of the Strata Company.
Explanation of ESM’s Position
How did we get there?
Here we go over the key points to understand how we get to the above interpretation.
Important Definitions from the Act
infrastructure includes public or private access ways, lifts, swimming pools, gymnasiums, shared carparks, loading bays other recreational facilities, infrastructure for utility services and other fixtures and, in each case, associated equipment;
utility conduit means a conduit for the provision of a utility service (including pipes, wires, cables and ducts);
utility infrastructure means infrastructure and equipment necessary for, or related to, the provision of a utility service;
utility service means —
(a) the collection and passage of stormwater; or
(b) the supply of water for drinking or any other use; or
(c) a sewerage and drainage service; or
(d) a garbage collection service; or
(e) a gas, electricity or air service, including air conditioning and heating; or
(f) a communication or data service, including telephone, radio, television and internet; or
(g) a service classified by the regulations as a utility service;
or
(h) another like service;
utility service easement means an easement under section 63;
structural cubic space means —
(a) cubic space occupied by a vertical structural member, not being a wall, of a building; or
(b) utility conduits in a building; or
(c) cubic space enclosed by a structure enclosing utility conduits, but does not include utility conduits that are for the exclusive use or enjoyment of 1 lot;
Section 63. Utility Infrastructure Easement
In short, Section 63 outlines the following:
- Rights conferred by the easement ;
- An easement over common property to the extent that is reasonably required for the provision of utility services to their lot;
- To install and remove utility conduits; and
- To examine, maintain, repair, modify and replace utility conduits.
Interesting to note, Section 63(4)(a) –
Section 63(4)(a) specifically states that a Strata Company may not permit interference with utility conduits or services in the reasonable exercise of rights under a utility service easement of which it has the benefit or may also do so in the performance of its function of controlling and managing common property in the scheme.
Further, the access requirements set out in Section 65, likely support ESMs argument.
Interpretation: The party benefiting from the Utility Service Easement is responsible for the repair and maintenance of the utility infrastructure that is reasonably required for the provision of utility services to their lot. If the utility infrastructure benefits more than 1 Lot, the Strata Company is responsible for repairs and maintenance of that common property, as no easement exists.
Whilst Section 63 does not expressly state that the Lot Owner is responsible for repair and maintenance based on the rights conferred by the easement, Section 66 does.
Further considerations: One argument could be that the Strata Company is required to keep in good serviceable repair all common property (Section 91 (1)(c)). However, the argument is that Section 66 states that the any damage caused to common property in the course of exercising rights under a statutory easement must be repaired and made good as soon as practicable by the person exercising those rights. Therefore, the lot benefited is responsible for repairing damage to the common property over which they have the benefit of an easement.
Section 66. (1) (Rectification of Damage)
Any damaged caused to a lot or common property in the course of exercising rights under a statutory easement must be repaired and made good as soon as practicable by the person exercising those rights.
Interpretation: One is exercising their rights under an easement in Section 63, simply by having the provision of the Utility Service to their lot. Therefore, the person exercising their rights (the lot owner in this case) is responsible for making the appropriate repairs.
Section 66.(2) covers accidental damage to common property where the lot owner wasn’t negligent (not directly responsible – Insurance claim), in which case Section 66 (1) does not apply.
Interesting to note: Regulation 39 (rectification of damage for short form easements) specifically notes that any damage cause to a lot or common property in the course of exercising a right of entry under the short form easements, must be repaired and made good…” Unlike, Section 66 which does have this specific stipulation and appears to be broader in terms of wording.
Example
Pipe leading to shower head leaking behind wall (within CP), only access is via neighbouring unit (shared wall). Pipe services 1 Unit only and has been in place since registration of the plan.
Ownership of Utility Infrastructure – The infrastructure is Common Property
Using the Utility Infrastructure – The Owner is exercising their right under Section 63.
Repairing Utility Infrastructure – Exercising a responsibility to repair Common Property under which there is a Utility Service Easement as per Section 66. The Owner is exercising a right to repair under Section 63.
Point 1. Responsibility – Based on Section 66, the Lot Owner is responsible for rectification of the any damage.
Point 2. Responsibility: Based on Section 66, the Lot Owner is responsible for repairing the damaged common property over which they have the benefit of an easement.
Point 3. The Owner has a right to access common property or the neighbouring lot to make the repairs – Exercising a right under Section 65.
Strata Titles Act excerpts & References
Section 63
63. Utility service easement
(1) An easement (a utility service easement) exists for the benefit and burden of each lot and the common property in a strata titles scheme to the extent reasonably required for the provision of utility services to each lot and the common property.
(2) A utility service easement entitles the strata company, and the owner of a lot, in the strata titles scheme —
(a) to install and remove utility conduits; and
(b) to examine, maintain, repair, modify and replace utility conduits.
(3) The rights conferred by a utility service easement must be exercised so as to minimise, as far as reasonably practicable, interference with the use and enjoyment of lots and common property in the strata titles scheme.
(4) A strata company must not interfere or permit interference with utility conduits or a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of a lot or the common property, other than —
(a) in the reasonable exercise of rights under a utility service easement of which it has the benefit; or
(b) in the performance of its function of controlling and managing common property in the scheme.
(5) An owner or occupier of a lot must not, either within or outside the lot, interfere or permit interference with utility conduits or a utility service provided by means of utility conduits in a way that may prejudice the use or enjoyment of another lot or the common property in the strata titles scheme, other than in the reasonable exercise of rights under a utility service easement.
(6) A utility service easement has effect even if the lot benefited and the lot burdened have the same owner.
(7) In any dispute about the location of utility conduits under a utility service easement, the objective must be to resolve the matter fairly taking into account the options that are reasonably available to give effect to the easement.
(8) If, in the course of exercising rights under a utility service easement, the owner of a lot comes into possession of documents specifying the location of utility conduits or other information relating to utility conduits that ought reasonably to be kept by the strata company, the owner of the lot must ensure
that the documents are provided to the strata company.
(9) If, in the course of exercising rights under a utility service easement, the strata company comes into possession of documents specifying the location of utility conduits or other information relating to utility conduits that ought reasonably to be kept by the strata company, the strata company must keep the
documents.
Section 65
65. Entry under statutory easement
(1) A strata company has a right to enter the common property of its strata titles scheme to exercise its rights under a statutory easement without notice to any person.
(2) If a person needs to enter a lot or common property in order to exercise rights under a statutory easement (other than as set out in subsection (1)), the person must give notice —
(a) for entry to a lot — to the occupier of the lot; and
(b) for entry to common property other than special common property — to the strata company for the strata titles scheme; and
(c) for special common property — to the occupiers of the special lots who have exclusive use and enjoyment of, or special privileges over, the special common property under exclusive use by-laws.
(3) Notice is unnecessary—
(a) in an emergency if there is insufficient time to give notice; or
(b) for entry to a lot, if the occupier of the lot dispenses with the requirement for notice; or
(c) for entry to common property other than special common property if —
(i) the person has the right to enter and enters only for the purposes of inspection; or
(ii) the strata company dispenses with the requirement for notice;
or
(d) for entry to special common property — if the requirement for notice is dispensed with by the occupiers of the special lots.
(4) Notice must be given in the approved form.
(5) The length of the notice must be at least —
(a) for entry by a strata company — 7 days unless a shorter period is agreed to by the occupier of the lot; and
(b) in any other case — 28 days unless a shorter period is agreed to by the occupier of the lot or strata company, as the case requires.
(6) If notice is not given (in an emergency) or the period of the notice has expired and it is not possible for the person, or a person acting on behalf of the person, to gain entry without using force, the person wishing to enter may use such force as is reasonable in the circumstances.
(7) Rights of entry under a statutory easement include rights of entry by the person’s agents, employees and contractors, with vehicles, equipment, materials and other items as reasonably necessary for the purpose of exercising rights under the easement.
Section 66
66. Rectification of damage
(1) Any damage caused to a lot or common property in the course of exercising rights under a statutory easement must be repaired and made good as soon as practicable by the person exercising those rights.
(2) Subsection (1) does not apply to the extent that the damage was the result of an unreasonable act or omission on the part of the owner of the lot damaged or, in the case of damage to the common property, on the part of the strata company.
Note for this Division:
Schedule 2A sets out an additional statutory easement for single tier
strata schemes.
Section 33 (9) (Short Form Easement)
This section does not derogate from any other method by which an easement or restrictive covenant may be created over a parcel.
Interpretation: Short Form Easements (which may include utility service easements) do not detract from Section 63.
Regulation 37(10) (Easement for utility services – Short Form Easement)
This regulation provides an alternative option for Strata Companies to provide clarity around easements, by having them registered on the Strata Plan. It is important to note that this regulation does not affect the easement provided for by section 63. However, it does provide some further clarification around the rights conferred by an easement for utility services.
References
This determination was based on information from the following sources:
Strata Titles Act 1985
Strata Titles (General) Regulations 2019
https://www.whiteacre.com.au/easements-ancillary-rights-part-two
https://elringtons.com.au/2011/08/easements-for-dummies/
https://www.lavan.com.au/advice/property_leasing/strata-says-no-tribunal-says-yes