A leaking apartment balcony can lead to a dispute over a basic question: who is responsible for the repairs — the lot owner or the owners corporation?

In Damjanovski v Owners Corporation 1 Plan No. PS503570D [2026] VSC 656, the Supreme Court of Victoria overturned an earlier VCAT decision concerning whether balcony tiles, screed and waterproofing membrane formed part of a private lot or common property.

The decision highlights why the registered plan of subdivision matters when determining responsibility for balcony defects.

What did the Court decide?

In the earlier decision, Damjanovski v Owners Corporation 1 Plan No. PS503570D [2025] VCAT 484, VCAT treated the upper surface of the structural concrete slab as the boundary, concluding that the components above it formed part of the lot.

The Supreme Court took a different view when interpreting the particular plan of subdivision, identifying the boundary at the finished surface of the balcony floor. The tiles, screed and waterproofing membrane in question were therefore found to be common property.

The plan was registered in 2003, before the Subdivision (Registrar’s Requirements) Regulations 2011. The decision should not automatically be applied to every apartment building or plan registered under a later regulatory framework. The wording and notations of the relevant plan remain important.

What does this mean for owners corporations and lot owners?

The decision is a reminder that a component does not necessarily belong to a private lot simply because it sits within a balcony used exclusively by that lot owner.

For owners corporation managers, responsibility should not be allocated based solely on the location of the leak or assumptions drawn from earlier decisions. The registered plan should be reviewed, and the owners corporation’s repair obligations should be considered separately from any question about recovering costs.

For lot owners, the decision may be relevant if the owners corporation says that balcony repairs are their responsibility. Owners can ask for the relevant plan provisions and the basis for that position to be identified. They should also report leaks promptly, retain photographs and correspondence, and seek advice before committing to substantial repairs where responsibility is disputed.

Importantly, finding that a component is common property does not automatically mean the owners corporation must bear every associated cost. Its obligations under the Owners Corporations Act 2006 (Vic), including section 46, and the circumstances of the particular defect must still be considered.

The decision also warrants care when relying on earlier authorities, including Owners Corporation PS508732B v Fisher [2014] VCAT 1358. Whether the reasoning applies will depend on the plan and the relevant legal framework.

What should buyers check before purchasing?

For prospective apartment buyers, the case reinforces the importance of reviewing more than the property’s appearance.

Where an apartment has a balcony, buyers should consider:

• Reviewing the registered plan of subdivision to understand the relevant boundaries.

• Checking owners corporation records for reported leaks, waterproofing defects, disputes and proposed works.

• Investigating any expert reports, remedial works or anticipated special levies.

A common property classification does not guarantee that the owners corporation will bear every repair cost. Buyers should understand both the condition of the building and the potential financial implications before committing to a purchase.

The takeaway

Damjanovski overturned the VCAT decision in that case and demonstrates why balcony repair disputes require careful examination of the registered plan of subdivision.

For owners corporations, lot owners and prospective buyers alike, the key is to establish the legal status of the affected components before drawing conclusions about repair responsibility or costs.

If you would like to discuss the legal issues, please feel free to get in touch.

Author: Samantha Lo, Principal Lawyer

Date published: 21 October 2026

Disclaimer: This article, current as at the date stated, is provided for reference only. It does not constitute legal, tax, financial or other professional advice and should not be relied on as legal advice. You should discuss your specific situation with a suitably qualified professional advisor before taking any action.