Courtyards & Private Yards — Who's Responsible?

This is one of the biggest townhouse vs apartment differences. Most apartment buildings don't have courtyards at all. In townhouse schemes, courtyards are everywhere — and they're usually lot property, meaning the owner looks after them. But that doesn't always cover everything inside the courtyard: the structural slab underneath, the boundary walls and the waterproofing layer can still be common property.

What we're talking about

A courtyard in a townhouse scheme can include:

• Paving, pavers or tiles on the ground
• Grass or garden beds within the area
• Plants and shrubs inside the courtyard
• Fences or walls bounding the courtyard
• Pergolas, awnings or shade structures
• The slab or ground underneath
• The waterproofing membrane (if it's a raised courtyard over a slab)

Typical position

In most townhouse strata schemes, the courtyard is shown on the strata plan as part of the lot. That means the owner is responsible for what's inside the courtyard. But the structural elements that form or support it — the slab beneath, the walls around it, and the waterproofing layer — usually stay common property.

Grey areas and common disputes

"Exclusive use" courtyards

Some townhouse schemes don't include the courtyard inside the lot — instead, the courtyard is common property but the lot owner has exclusive use of it under a registered by-law. This sounds like the same thing, but it isn't. With exclusive use:

• The OC technically owns the courtyard
• The lot owner gets sole use, but the by-law usually says they also have to maintain it
• Improvements may need OC approval that wouldn't be needed if it were part of the lot
• If the by-law was lost or never properly registered, the position can get messy

If your courtyard is exclusive use rather than lot property, ask the strata manager for a copy of the by-law so you know exactly what you can and can't do.

Pergolas, awnings and shade structures

Anything you build in your courtyard that's attached to the building, taller than a low fence, or visible from outside usually needs:

• Owners corporation approval (because the structure may attach to common property)
• Council approval (in many cases)
• A common property rights by-law (if it touches or modifies common property)

If a previous owner built a pergola without paperwork, you may have inherited a problem. The OC could require you to maintain it indefinitely, or in some cases remove it. Get the position clarified before you buy or before you start a project.

Cracking paving — is it the membrane?

Your courtyard pavers crack or lift. The first instinct is to re-lay them at your cost. But if the cause is a failing waterproofing membrane underneath, that's common property and the OC's responsibility. The honest test:

• Is there water staining or damp coming into the building below or beside the courtyard?
• Have multiple owners had the same issue?
• Is the cracking lined up with where a slab joint or membrane fold would be?

Don't lift pavers without sorting responsibility first. If the membrane has failed and you've replaced the pavers, you'll do the same job twice.

Trees and large shrubs

Trees you planted in your courtyard are yours — and so are the problems they cause (roots in next door's pipes, branches over a fence, leaves in the neighbour's gutter). For more on trees specifically, see Gardens & trees.