Part 3 Functions of owners corporations

(1) An owners corporation for a units plan has the following functions:

(a) the enforcement of its rules;

(b) the control, management and administration of the common property;

(c) any other function given to the corporation under this Act or another territory law.

Note 1 The executive committee of an owners corporation exercises the functions of the corporation (see s 35 (1)). The executive committee must exercise its functions in accordance with any decision made by the owners corporation at a general meeting (see s 35 (3)).

Note 2 A provision of a law that gives an entity (including a person) a function also gives the entity powers necessary and convenient to exercise the function (see Legislation Act, s 196 and dict, pt 1, def entity).

(2) The owners corporation must comply with all applicable laws in force in the Territory.

Schedule 3 applies to general meetings of an owners corporation for a units plan.

(1) An owners corporation for a units plan holds the common property as agent for—

(a) if all the units are owned by the same person—the owner; or

(b) in any other case—the unit owners as tenants in common in shares proportional to their unit entitlement.

Note The owners corporation may, by ordinary resolution, decide to hold sustainability infrastructure installed on common property as trustee for the unit owners (see s 23 (3)).

(2) The owners corporation must give all members of the corporation opportunity for the reasonable use and enjoyment of the common property.

(1) An owners corporation for a units plan may, if authorised by a special resolution, on conditions and for purposes stated in the resolution—

(a) grant or vary an easement over any part of the common property; or

(b) take or vary an easement granted for the benefit of the common property; or

(c) release an easement granted for the benefit of the common property.

Note The owners corporation may, by ordinary resolution, grant an easement or any other right over the common property for the purpose of the installation, operation or maintenance of sustainability or utility infrastructure (see s 23 (1) (c)).

(2) The owners corporation may not transfer, sublet or mortgage, at law or in equity, its interest in the common property.

(3) However, the owners corporation may sublet its interest in any part of the common property to an entity for not longer than 5 years—

(a) for the purpose of a business or other activity; and

Examples

coffee cart, florist, parcel locker service

(b) if—

(i) authorised by a special resolution; and

(ii) the affected part of the common property is not the subject of a grant of special privilege under section 22; and

(iii) the business or other activity carried out under the sublease does not unreasonably interfere with the reasonable use or enjoyment of any part of a unit or the common property; and

Examples—unreasonable interference

•  restricting access to a unit

•  obstructing views from a unit balcony

(c) subject to a condition stating that the entity must take out and maintain public liability insurance for the affected part of the common property in relation to each of the following events happening:

(i) death, bodily injury or illness to anyone;

(ii) loss of, or damage to, the property of anyone.

(4) Public liability insurance under subsection (3) (c) must be for a total amount of liability of at least the amount agreed, in writing, by the owners corporation and the entity.

(5) For section 71, an owners corporation is not carrying on business if the corporation receives income from subletting any part of the common property under subsection (3).

(1) An owners corporation for a units plan may, if authorised by an ordinary resolution—

(a) hold property for a use in accordance with its functions; or

(b) dispose of that property.

(2) However, the only interests in land that an owners corporation may hold, at law or in equity, are as follows:

(a) the lease of the common property;

(b) an easement granted for the benefit of the common property;

(c) a registered charge under section 96 securing an amount payable to the corporation;

(d) an interest in the common property of a community title scheme that includes the land subdivided by the units plan.

(1) An owners corporation for a units plan may, if authorised by a special resolution, grant a special privilege for a period of less than 3 months to—

(a) a unit owner; or

(b) someone else with an interest in a unit.

Example

a right to the exclusive use of a pool area for a private party

Note A special privilege that is granted for a period of 3 months or more must be granted by a special privilege rule (see s 112A).

(2) A grant under subsection (1) may be terminated, in accordance with a special resolution, by written notice given by the owners corporation to the person to whom the grant was made.

(3) The owners corporation may only grant a special privilege under this section—

(a) with the consent of the grantee of the special privilege; and

(b) subject to a condition that states that the maintenance requirement is the responsibility of 1 of the following:

(i) the owners corporation;

(ii) the grantee.

(4) A condition that states that the maintenance requirement is the responsibility of the grantee—

(a) must state the type and frequency of maintenance the grantee must undertake; and

(b) relieves the owners corporation of its obligations under section 24 to the extent the rule places this obligation on the grantee.

(5) A grantee must not unreasonably withhold consent mentioned in subsection (3) (a).

(1) An owners corporation for a units plan may, if authorised by an ordinary resolution—

(a) approve the installation of sustainability or utility infrastructure on the common property; and

(b) approve the financing of the installation of the sustainability or utility infrastructure; and

(c) grant an easement or any other right over any part of the common property for the purpose of the installation, operation or maintenance of the sustainability or utility infrastructure.

(2) The owners corporation may only approve the installation, and financing, of sustainability or utility infrastructure under this section if satisfied, after considering the following, the long-term benefit of the proposed infrastructure is greater than the cost of installing and maintaining the infrastructure:

(a) a site plan of the proposed infrastructure;

(b) a maintenance plan for the proposed infrastructure;

(c) if the proposed infrastructure is to be financed by a third party—the terms of the financing arrangements;

(d) the direct and indirect costs of the proposed infrastructure;

(e) the long-term environmental sustainability benefits of the proposed infrastructure;

(f) any other matter prescribed by regulation.

(3) The owners corporation may, by ordinary resolution, decide to hold sustainability infrastructure (including existing sustainability infrastructure) installed on common property and any income received from the operation of the infrastructure as trustee for—

(a) if all the units are owned by the same person—the owner; or

(b) in any other case—the unit owners as tenants in common in shares proportional to their unit entitlement.

Example—income

income from an electricity feed-in tariff scheme

Note If the owners corporation does not decide to hold sustainability infrastructure as trustee for the unit owners, it holds the infrastructure as agent for the owners (see s 19 (1)).

(4) For section 71, an owners corporation is not carrying on business if it receives income from the operation of the sustainability infrastructure and the income is used only to pay—

(a) costs, including financing costs, in relation to the installation and maintenance of the infrastructure; or

(b) costs of utilities used by, or provided to, the owners corporation.

(1) An owners corporation for a units plan must maintain the following:

(a) for a staged development—the common property included in a completed stage of the development;

(b) for a development that is not a staged development—the common property;

(c) other property that it holds;

(d) the defined parts of any building containing class A units (whether or not the defined parts are common property);

Note This does not include painting, unless the painting is required because of other maintenance (see s 26 (1)).

(e) if a utility service mentioned in the Unit Titles Act 2001, section 35 (Easements given by this Act) is provided for the potential benefit of all units—facilities associated with the provision of the utility services including utility conduits;

(f) any building on the common property that encroaches on a unit if the building is the subject of an easement declared under the Unit Titles Act 2001, section 36 (Easements declared by owners corporations);

(g) as authorised by a special resolution (if any)—all buildings on all class B units on the units plan.

Example—par (g)

a special resolution authorising the owners corporation to paint all buildings on the class B units and to carry out roofing and structural repairs to all class B units, but excluding responsibility for internal painting and minor repairs of class B units

(2) For meeting its obligations under subsection (1), the owners corporation must prepare a maintenance plan taking into account the developer’s maintenance schedule (if any).

(3) The maintenance plan must contain the matters prescribed by regulation.

(4) In this section:

defined parts, of a building containing class A units, means—

(a) the following structures in the building, if load-bearing:

(i) walls;

(ii) columns;

(iii) footings;

(iv) slabs;

(v) beams; or

(b) any part of a balcony on the building.

(1) The developer of a units plan must prepare a schedule for maintenance of the common property (the developer’s maintenance schedule).

Note The developer must give the initial maintenance schedule to the owners corporation at the first annual general meeting of the corporation (see sch 3, s 3.4).

(2) The developer’s maintenance schedule must contain the matters prescribed by regulation.

(3) The owners corporation is not required to comply with the developer’s maintenance schedule in meeting its maintenance obligations for the common property under section 24.

(4) In any legal proceeding—

(a) the developer’s maintenance schedule may be considered for the purpose of determining whether or not a defect in, or damage to, a building could have been avoided by taking stated action; but

(b) the provision of the developer’s maintenance schedule to the owners corporation does not affect any obligations of the developer in relation to structural defects, warranties or similar matter in relation to the building.

(1) An owners corporation’s obligation under section 24 (1) (d) to maintain the defined parts of a building containing class A units does not require the corporation to carry out any painting of a unit unless the painting is necessary because of other maintenance being carried out by the owners corporation.

(2) If the lease of a unit or the common property is subject to a building and development provision, section 24 (1) does not apply to the owners corporation until the territory planning authority issues a certificate under the Planning Act 2023, section 368 (Certificates of compliance)—

(a) for the building and development provision; and

(b) for any building and development provision to which any of the other leases are subject.

(3) In this section:

defined parts, of a building containing class A units—see section 24 (4).

(1) This section applies if a building, or the site of a building, that is part of the units or common property of a units plan, has a structural defect that affects, or is likely to affect, the support or shelter provided by that part of the building or site to another part of the building or site.

(2) The owners corporation for the units plan may, by ordinary resolution, take legal action for the rectification of the structural defects if—

(a) the legal action could be taken by a member of the corporation; and

(b) the member does not take the legal action within a reasonable time after the defect becomes known.

(3) If the owners corporation takes legal action under this section—

(a) the corporation and not the member who could have taken the action is liable for the costs incurred by the corporation in taking the legal action; and

(b) the corporation and not the member may take the benefit of any order for costs in the corporation’s favour in the legal action.

(4) For this section, the owners corporation takes legal action if the corporation—

(a) begins a proceeding; or

(b) continues a proceeding.

(1) An owners corporation for a units plan does not have a right to enter a unit in the units plan without the consent of the owner or occupier, except in accordance with this section.

(2) The owners corporation may enter the unit without notice to the owner or occupier of the unit if the access is required in an emergency.

Examples—emergencies

1 water is flowing from 1 unit into another unit and is causing damage

2 an external glass window in the unit is dislodged and is likely to fall

(3) If entry to the unit is required to inspect or maintain the common property of the units plan, a person may enter the unit on behalf of the owners corporation if—

(a) the executive committee authorises the entry, and the person to enter, by resolution; and

(b) the executive committee gives the owner or occupier written notice that the entry must be allowed on a stated day.

(4) A notice under subsection (3) (b) must be given to the owner or occupier not less than 7 days before the entry it relates to.

An owners corporation for a units plan may, if authorised by an ordinary resolution, enter into and carry out an agreement with an owner or occupier of a unit for—

(a) the maintenance of the unit; or

(b) the provision of facilities or services for the unit (or its owner or occupier).

(1) This section applies to an agreement for the maintenance of a unit, or the provision of facilities or services for a unit (or its owner or occupier), if—

(a) the agreement is authorised under section 29; and

(b) the owners corporation is not responsible for the maintenance, facilities or services under section 24.

(2) The owners corporation may recover the cost of carrying out the agreement as a debt from the person with whom the agreement was entered.

(3) If the agreement applies to a number of units, the amount recoverable for each unit is (unless the people with whom the agreement was entered agree in writing otherwise) as follows:

(4) In subsection (3):

total cost means the total cost of carrying out the agreement.

total unit entitlement of relevant units means the total unit entitlement of all units that the agreement applies to.

Note Unit entitlement—see the Unit Titles Act 2001, s 8.

(1) This section applies if an owners corporation for a units plan has in carrying out its functions incurred an expense, or carried out work, that is necessary because of—

(a) a wilful or negligent act or omission of a member of the corporation, or an occupier of the member’s unit; or

(b) a breach of its rules by a member of the corporation, or an occupier of the member’s unit.

(2) The amount spent or the cost of the work is recoverable by the owners corporation from the member as a debt.

(3) If the owners corporation recovers an amount under subsection (2) from a member for an act, omission or breach of an occupier of the member’s unit, the member may recover the amount from the occupier as a debt.

(4) In this section:

expense, includes a reasonable legal expense reasonably incurred, including a legal expense relating to a proceeding in the ACAT.

work, carried out by an owners corporation, means maintenance or anything else the corporation is authorised under this Act to do.

(1) A unit owner or occupier of a unit may keep an animal, or allow an animal to be kept, within the unit or the common property—

(a) if the animal is an assistance animal; or

(b) if the animal is not an assistance animal, only if—

(i) if the rules of the owners corporation include a pet friendly rule—the animal is kept in accordance with the pet friendly rule; or

(ii) the owners corporation consents to the animal being kept.

Note Other territory laws also apply to keeping animals—for example, Animal Welfare Act 1992, Biosecurity Act 2023, Nature Conservation Act 2014 and Residential Tenancies Act 1997.

(2) The owners corporation may give consent under this section with or without conditions.

(3) The owners corporation—

(a) must respond to any request for consent under this section and the response must—

(i) be in writing; and

(ii) if the request is refused—give reasons for the refusal; and

(iii) if the consent is given subject to conditions—state the conditions; and

(b) may delegate its decision-making power under this section to the executive committee; and

(c) is taken to consent to the request if the owners corporation does not take action under paragraph (a) within 3 weeks of the day on which the request was made.

Note The owners corporation may also delegate this power to the manager (see s 58 (1)).

(4) The owners corporation may—

(a) only withhold consent on reasonable grounds; and

(b) impose reasonable conditions on the consent.

Examples—par (a)

1 unacceptable risk of damage or soiling of common property that cannot be addressed through reasonable conditions

2 unacceptable risk of nuisance to other unit owners or occupiers that cannot be addressed through reasonable conditions

3 unacceptable risk of the animal escaping the unit unsupervised that cannot be addressed through reasonable conditions

4 unacceptable risk to health or safety of other unit owners or occupiers or the general public that cannot be addressed through reasonable conditions

5 keeping the animal on the units plan would be contrary to a territory law

Examples—par (b)

1 requiring supervision of the animal when the animal is on the common property

2 requiring cleaning of any areas of the units plan that are soiled by the animal

3 requiring the unit to be secured to prevent the escape of the animal

(5) In this section:

animal includes—

(a) an amphibian; and

(b) a bird; and

(c) a fish; and

(d) a mammal (other than a human being); and

(e) a reptile.

occupier includes a person who has entered into a residential tenancy agreement in relation to the unit even if—

(a) the residential tenancy agreement has not yet started; or

(b) the person has not yet taken possession of the unit; or

(c) the person has not yet obtained any required consent from the lessor to keep an animal in the unit under the Residential Tenancies Act 1997.

An owners corporation for a units plan must not, during the developer control period, do any of the following:

(a) enter into a contract unless—

(i) the contract is disclosed in each contract to sell a unit in the units plan; and

(ii) either—

(A) the contract is for a period not longer than 2 years; or

(B) the ACAT authorises the corporation entering into the contract in accordance with section 33A;

Note This section also applies to the engagement of a manager or service contractor under div 4.2 or div 4.3.

(b) other than with the approval of the ACAT under section 33A—change the rules of the corporation;

(c) approve the keeping of an animal in a unit unless the right to keep an animal was reserved in each contract to sell a unit in the units plan.

(1) The owners corporation for a units plan (the applicant) may apply to the ACAT for authority to do 1 or more of the following during the developer control period:

(a) enter into a contract that the corporation is otherwise prohibited from entering;

(b) change the rules of the corporation.

(2) The applicant must provide written notice of the application to—

(a) each unit owner; and

(b) if there is a mortgagee or other registered interest holder for a unit in the units plan—the mortgagee or registered interest holder.

(3) The entities mentioned in subsection (2) are parties to the application.

(4) The ACAT may authorise the owners corporation entering into a contract mentioned in subsection (1) (a) if the ACAT is satisfied the terms of the contract are reasonable in all the circumstances.

(5) The ACAT may authorise the owners corporation changing the rules of the corporation if the ACAT is satisfied that the change is fair in the circumstances.

(6) However, this section does not apply if the developer has not entered into a contract for the sale of any of the units in the units plan.

(1) An owners corporation for a units plan for an existing relevant building may, if authorised by a special resolution, consent to an application under the Land Titles Act 1925, section 123I (Territory planning authority approval of building management statement) for—

(a) approval of a building management statement; or

(b) an amendment to a registered building management statement.

(2) In this section:

relevant building—see the Land Titles Act 1925, section 123C (1).