gwyn – Your scheme layout sounds different from most.
Some Strata Plans indicate that buildings do not form common property. What does your Strata Plan say?
It is possible to prepare a strata plan where it is intended that the buildings form part of their respective lot and not become common property.
In these instances the following conventions apply:The floor plan is prepared differently and it must show the following: (1) The walls will be shown by thick broken lines unless they form a lot boundary. (2) There will be only one floor plan regardless of the number of levels in the building. The floor plan will represent the perimeter walls of the building at ground level. (3) The plan must have a statement indicating that the building forms part of the lot and is not common property for example. ‘The structure of the building standing on each lot, including walls, floors, ceilings and roofs, form part of the lot and is not common property.’
See page 21 of this document for a more detailed explanation and examples:
https://rgdirections.lpi.nsw.gov.au/__data/assets/pdf_file/0005/143078/Strata_Plans_Fast_Facts.pdf
However, if your Strata Plan does not indicate that the buildings do not form common property then your Owner’s Corporation will need to formalise the responsibility for maintenance and repair. A verbal agreement from 2004 is definitely not good enough.
Even with an SSMA 2015 [s106(3)] special resolution an OC cannot opt out of the responsibility for common property structural repairs or painting (i.e. appearance of common property) etc.
106 Duty of owners corporation to maintain and repair property
(1) An owners corporation for a strata scheme must properly maintain and keep in a state of good and serviceable repair the common property and any personal property vested in the owners corporation.
(2) An owners corporation must renew or replace any fixtures or fittings comprised in the common property and any personal property vested in the owners corporation.
(3) This section does not apply to a particular item of property if the owners corporation determines by special resolution that:
(a) it is inappropriate to maintain, renew, replace or repair the property, and
(b) its decision will not affect the safety of any building, structure or common property in the strata scheme or detract from the appearance of any property in the strata scheme.