Thirty Three Island Parade [2000] QBCCMCmr 16 (1 March 2000)

C G YOUNGREFERENCE: 0614-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	16335
Name of Scheme:	Thirty Three Island Parade
Address of Scheme:	57 Otoole Street EVERTON PARK QLD 4053

TAKE NOTICE that pursuant to an application made under the abovementioned Act by

Ronald Henry Oliphant, as a co-owner of Lot 1,


C G YOUNGI hereby order that the application for an order against the owner of Lot 2, Raewyn Rule FRASER, concerning the behaviour of her tenants, is dismissed.2n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0614-1999

“Thirty Three Island Parade” CTS 16335

The applicant, Ronald Oliphant of Lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

By-laws Sect 30. All by-laws except (5), (9), (10).

Also converting garage into a living quarters that is not (1) person living there but 4 (four) or more at any one time.

Unit 1. The place is rented out to the people (Lisa Cameron) making the problems. The owner knows of problem and will not believe what goes on.

Section 223(1) of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances (including a declaratory order) to resolve a dispute, in the context of a community titles scheme, about –

(a) a claimed or anticipated contravention of the Act or the community management statement; or

(b) the exercise of rights or powers, or the performance of duties, under this Act or the community management statement; or

(c) a claimed or anticipated contravention of the terms, or the termination of, or the exercise of rights or powers under the terms of, or the performance of duties under the terms of an engagement contract or an authorisation contract.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 223(2)). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1)).

While the application was lodged against the respondent Raewyn Fraser concerning the behaviour of a tenant Lisa Cameron, and her co-occupiers, that tenant has since vacated the lot and therefore no order concerning this particular behaviour can be made. That is, the application properly fell within the requirements of section 182 of the Act when lodged (dispute between and owner and tenant), but as it concerns behaviour which no longer constitutes a dispute within the scheme, then the matter lapses. Accordingly my order is that the application is dismissed.

However, the applicant is concerned that a future tenant may behave in a similar manner and wants Ms Fraser, both as a renting or lessor owner and as the body corporate secretary, to be informed of her responsibilities in preventing such behaviour. While I cannot make an order regarding a possible future event or possible future behaviour, or make an order which merely repeats the general duties and functions of a secretary under the legislation, I propose to briefly set out for the parties their respective rights and responsibilities regarding tenants and behaviour. Firstly, however, I shall briefly set out the facts of the dispute so that the areas of behaviour complained of are highlighted.

In grounds to the application, the applicant states that he and his wife have experienced problems with tenants in Lot 1 ever since it was purchased and rented out by the respondent Fraser. He claims that the nuisances they have had to endure comprise: dogs being kept in breach of the by-laws which have annoyed them with their barking; vehicles being parked on the scheme land other that in the garage; excessive noise by tenants and visitors.

The applicant says that his requests to the respondent to reign in the behaviour of her tenants were unsuccessful, and he was told not to “whinge”. He concludes that the respondent is only interested in ensuring her lot is tenanted and the rent paid, and not whether her tenants abide by the by-laws or cause a nuisance to the applicant.

The respondent has made a written submission to the application putting a contrary view. She states that the applicant has continually complained over trivial things and has shouted at her over the telephone. Her tenants have also complained to her of his shouted abuse. She believes that the last tenants deliberately caused a nuisance as “payback” over the applicant’s behaviour. She does admit that her tenants had dogs when they shouldn’t and had used the garage as a habitable room without her knowledge.

I will now address the problem areas, dealing firstly with the question of animals.

“Thirty Three Island Parade” was registered as a building units plan on 24 January 1996. Upon registration, its by-laws were those set out in the Third Schedule of the legislation then in force, the Building Units and Group Titles Act 1980. The by-laws have only been amended (on 29 February 1996) to grant the owners exclusive use of separate parts of the common property as shown in the sketch plan accompanying the by-law. The transitional provisions of the new Act which commenced on 13 July 1997, preserved those by-laws as the by-laws of the body corporate (the by-laws of the Second Schedule to the Act are not the by-laws of the body corporate).

The animal by-law states –

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Keeping of animals

11. Subject to section 30(12), a proprietor or occupier of a lot shall not, without the approval in writing of the body corporate, keep any animal upon his or her lot or the common property.

Accordingly, the by-law provides that prior permission of the body corporate is required before an owner or tenant may bring an animal onto the scheme. As there are only two owners in the scheme, approval by way of an ordinary resolution will require both owners to vote in favour of the request otherwise a voting majority will not be obtained.

The applicant has stated that the tenants claimed their lease had a clause allowing them to keep a dog. If that is so then the lessor owner had no authority to grant such a right in the lease as it is in conflict with the animal by-law which requires prior written body corporate approval. The clause is also in conflict with the Residential Tenancies Act 1994 (see section 45 regarding the responsibility of the owner) and the Residential Tenancies Regulation 1995 (see Clause 22 of Schedule 1). Such a clause has no binding effect on the body corporate – the tenant may have an action against the lessor owner for misrepresentation in these circumstances.

In regards to parking, I note that the applicant has complained of occupiers and visitors parking on scheme land instead of in the street. The (Third Schedule) by-law concerning parking on the common property is -
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Vehicles

2. Save where a by-law made pursuant to section 30(7) authorises a proprietor or occupier so to do, the proprietor or occupier of a lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the body corporate.

In regards to the noise nuisance, the relevant by-laws are –

Noise

1. A proprietor or occupier of a lot shall not upon the parcel create any noise likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

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Behaviour of invitees

6. A proprietor or occupier of a lot shall take all reasonable steps to ensure that his or her invitees do not behave in a manner likely to interfere with the peaceful enjoyment of the proprietor or occupier of another lot or of any person lawfully using common property.

The Act also provides at section 129 –

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Nuisances

129. The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

Owners who consider that another occupier has breached a noise by-law, may take steps for the body corporate to issue a notice of contravention of a by-law (see Division 4, Part 5, Chapter 3 of the Act) or make application to this office for an order. Non-compliance with a contravention notice can be prosecuted in the courts, as can non-compliance with an adjudicator’s order.

However, although I have set out the legal requirements and avenues of addressing what are essential social problems, I would urge owners and tenants to first attempt a resolution of the dispute between themselves. An imposed legal solution should be regarded as a last resort. If direct dialogue does not produce results, or any ill-feeling between the parties prevents any dialogue at all, then I would suggest the parties engage in mediation with the help of a trained mediator. The Dispute Resolution Centre of the Department of Justice offers this service, or a private mediator can be engaged.

Finally, in regard to the tenants living in the garage, this is a matter for the local government shire council and a complaint should be made to it. Garages are generally not designed to be habitable rooms and local governments have regulations that do not allow them to be used as dwellings. It is not a matter that is within the jurisdiction of an adjudicator to determine.