What is a variation or exception?
The Unit Titles Legislation allows a body corporate to opt out of maintaining any item that would otherwise be required to be included in its LTMP - and to also include in their LTMP any item that would normally not be required to be included. See our help page on compliance for more information.
For want of a better term, we have called these "Variations and Exceptions" but we could equally have called them "opt-ins and opt- outs".
Some examples. Note: These are real examples.
There are eight units in this body corporate and seven of them have carports. The other has a garage. Under the strict interpretation of the Unit Titles Act 2010 (UTA), the owner who has a garage could be expected to pay for any expenses relating to maintaining the garage and the other seven owners should pay for the carports. However, in the past, the body corporate managed and paid for significant repairs to the garage - and the other owners were happy with this. Now it is time to carry out some work on the carports, the body corporate has agreed that it will manage and pay for these repairs. They have recorded this decision in the Variations and Exceptions section of their LTMP.
The body corporate of a row of 1970’s single level town houses had decided that it will systematically replace all of the wooden windows in the development with aluminium. Again the strict interpretation of the UTA would suggest that each owner should manage and pay for their own windows. However, because some owners wouldn’t have the cash or ability to carry this out and because each owner would each choose their own style and colour contributing to an ugly looking development, the body corporate has agreed it will carry out the replacement project over a few years.
A motel conversion has 16 principal units one of which originally was the manager’s residence - a three bedroom house on a reasonably sized parcel of land. There is even a fence around the residence so if you didn’t know, you would not think it was part of the development. Anyone who has a good understanding of the UTA would be accept that the owner of the residence would be required to pay for the maintenance of that unit and make not make a contribution towards for the maintenance of the other units. This is what the owners have agreed and it works fine. However, because not many owners actually read the UTA, and to make it undeniably clear, they have included a section in their LTMP opting out of maintaining the dwelling and agreeing that the owner of the dwelling, makes no contribution to the LTMP.
There are many more real world examples
Not every development is a high rise apartment building
While this type of variation is unlikely to be required in a modern high rise apartment building, apartment buildings actually don’t make up the majority of unit title developments and there are many developments where it is simply not practical, or in the owner’s interests to strictly follow the provisions of the UTA in regard to every building item. We can only presume that is the reason why the lawmakers provided the options to opt in or opt out.
It could be decks, balconies, driveways, garden or fences, or just about anything else where the principal units and benefits are not equal but because there are "swings and roundabouts", it makes sense to have the body corporate manage and pay for the maintenance.
And if all owners agree, we presume that is their right.
We are not advocating or recommending
At Plan Heaven we are not advocating that you deviate from what is prescribed in the legislation, however, if you are already doing something different and all of the owners are happy about it and want it to continue, all we are doing is providing a section in your LTMP where this can be recorded.
If you have any feedback or questions please use the feedback form.
The Plan Heaven team.
Disclaimer. Plan Heaven is not qualified in law and any comments made on this website are only the opinion of Plan Heaven and should not be regarded as legal advice. Our comments are merely providing some thoughts on how the legislation might be interpreted and how we go about attempting to meet its requirements. You should not rely on this information in isolation and do you own homework and at all times if you wish to be sure of your position relating to legal matters you should seek advice from a suitably qualified lawyer.