I spend all day, every day, reading body corporate records; lucky me.
The business conducted by each scheme differs wildly but there are several core things that majority schemes do.
Termite inspections is one of them.
The BCCM Act doesn’t explicitly require that a body corporate do regular termite inspections. As is usually the case the applicable legislation is far broader than focussing on the one issue.
Section 159 of the Standard Module requires the body corporate to maintain common property in good condition.
If the scheme is a Building Format Plan (BFP) legislation requires the body corporate must go a step further. Section 159(2) instructs the body corporate to extend their focus beyond rectification of damage to works that might minimise the need for future maintenance.
The question then is, will regular termite inspections minimise the need for future maintenance. That’s debatable, and oh how owner’s debate, but, ultimately, it’s up to each committee to decide for themselves.
Here’s the thing: when bodies corporate do undertake termite inspections, they often make this one simple mistake.
TERMITE INSPECTIONS SHOULD BE TO COMMON PROPERTY ONLY
I can’t count the number of times I’ve seen resolutions to carry out termite inspections to common property and lots.
A regular pest inspection is certainly reasonable to fulfil a body corporate’s need to maintain common property.
The key criteria here is common property.
The body corporate’s responsibility ceases at the boundary between common property and a lot.
Further, and more important, the body corporate has no power to make resolutions about a lot.
Nor may they spend communal funds on works to a lot.
If your body corporate does inspections to lots, at body corporate cost, your scheme is breaching legislation.
I hear the argument that checking the lots is for all owners benefit as much as the body corporate. Plus, the owners are paying the costs in their contributions anyway. None of that matters.
Quite simply the body corporate cannot make a resolution to force a lot owner to do something to their lot. Its their lot. The body corporate has no jurisdiction there.
Any resolution passed about termite inspections needs to relate to common property only.
What many schemes do is negotiate a facility for owners to have their lots inspected, on the same day as the common property inspection, by the same contractor, but here’s the operative part, it’s completely voluntary and at owner’s own cost.
WHAT ABOUT EXCLUSIVE USE AREAS?
Exclusive use allocations are made with specific conditions including that the lot owner is solely responsible for maintenance of the exclusive use area.
Termite inspections are maintenance and consequently lot owner responsibility.
Again, all those bodies corporate out there who are doing termite inspections to exclusive use courtyards, or worse, installing baiting stations, are breaching legislation.
Along with previously discussed issues (cannot make resolutions about lots, cannot spend money on lots) there is the issue of access.
An exclusive use area is, for all intents and purposes, part of the lot.
A body corporate, or their agent, cannot simply access a lot anytime they feel like it. Access is strictly controlled by legislation and should be limited to genuine emergencies and compulsory works. Even then, strict rules apply regarding notice.
WHY BOTHER WITH TERMITE INSPECTIONS THEN?
As already discussed the body corporate is required to maintain the common property in good condition, and, if a BFP, take steps to minimise future maintenance requirements.
If the body corporate fails in its responsibilities under section 159 of the Standard Module, and damage to a lot results from that failure, then the body corporate will be responsible for rectifying the damage.
In a 2008 Adjudicators Order for Jade Place, the body corporate was ordered to reimburse the lot owner for works associated with finding, eradicating and repairing termite damage to a lot. The Adjudication noted:
“No evidence of termite inspections and/or treatments can be found in paperwork dating back to 2004. Hence the body corporate has been negligent in their duty of care to protect the common property from termite infestation.”
If there is a termite infestation to a lot, it is reasonable to consider that the infestation may have come from common property.
Equally though, termites could have been introduced on a piece of wooden furniture or hidden in someone’s stuff. In shared areas there’s lots of comings and goings and numerous ways that termites may be introduced.
Unfortunately, a body corporate has this duty of care to the owners, and fair or not, the body corporate is most likely to be able to afford to indemnify owners for damage sustained.
The best way to combat that presumption is to show a program of regular termite inspections, to common property only, and if required treatments of live termites or rectification conditions likely to attract termites.
That was the case in 2010 at The Links at Indooroopilly where the Adjudicator cited a regular campaign of termite treatments to common property in denying an application for reimbursement of termite damage rectification to a lot.
The body corporate is required to maintain common property and ensuring the common property remains free from termites is part of that responsibility.
It’s up to each committee to decide for themselves how they can best protect their schemes from termites. There is no minimum requirement.
By undertaking regular termite inspections, to common property only, never lots or exclusive use, the body corporate may indemnify themselves should outbreaks occur.
My name is Lisa Rutland and I am a professional strata searcher. I spend my days reading body corporate records and writing reports about them. One of the unfortunate side effects is that I’ve become something of a body corporate know-it-all. I write about what I’ve learnt at MyBodyCorpReport.com.au. Stop by and have a look, and if you have a question or area you’d like to know more