Sur La Mer [2000] QBCCMCmr 32 (27 January 2000)

RA MeekREFERENCE: 0704-1999

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17403
Name of Scheme:	Sur La Mer
Address of Scheme:	35 Sunbrite Avenue MERMAID BEACH QLD 4218

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

RA MeekI hereby order that the application by the body corporate for an order determining responsibility for maintenance of two doors, and associated hinges etc, is determined in accordance with the accompanying Statement of Adjudicator’s Reasons for Decision. n

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0704-1999

“Sur La Mer” CTS 17403

The applicant, the Body Corporate for Sur La Mer, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

This matter is an internal dispute requiring an Adjudicator to clarify the common property by-laws as they apply to this dispute about maintenance of “common property – for exclusive use” of lots 5 and 6 owners, A & M Conn.

Section 223(1) 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)).

In the supporting grounds, the body corporate states that –

Lots 5 and 6 are owned by unit 5 owners, R& M Conn. Their unit covers the whole of the top floor area of the building which has a large roof decking registered on their plan title as “common property – for exclusive use”.

... this dispute is about the ongoing maintenance of door hinges and door frames accessed exclusively by unit 5 owners. Doors, hinges and steel door jambs have rusted due to neglect of maintenance by unit 5 owners. This body corporate committee are of the opinion that unit 5 owners were aware of this rust and deterioration but took no steps to repair or treat the rust. ...

Our question is:- “Who should pay for the cost of repairs in this situation of “common property for exclusive use”. Who pays in another four years when the rust comes back due to lack of maintenance”.

The body corporate has also referred to a section of the legislation, which the body corporate states provides as follows –

The owner is to provide maintenance of that part of the common property to which the exclusive use by-laws applies.

I am not able to find the section referred to by the body corporate (ie. section 101(2)) but believe the body corporate is referring to s123(2) of the standard module (section 84(2) of the small schemes module) which provides as follows –

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Conditions and obligations under exclusive use by-law—Act, s 136
123(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.

Examples of operating cost for part of common property—

Cost of providing lighting to the part of common property.

The owners of lot 5, Richard Kevin Conn and Margaret Ann Conn (Conn) have responded to the application by way of submission. Conn states in part that –

At the time of purchase I was not advised that I was responsible for any exterior maintenance so when I observed the condition of the exterior doors and surrounds, I advised and notified the committee ... The doors are part of the exterior wall of the building, which open onto the paved patio, and when the walls, eaves and gutters need painting I am of the opinion it would be the responsibility of the body corporate. My question for the board would be, if I am to receive no maintenance upkeep, why am I paying body corporate fees for lots 5 and 6, which is double the amount to the rest of the owners in the complex.

There are a number of inaccuracies which I need to clarify before proceeding. Firstly there are not 6 lots, but rather 5 lots in the scheme. Lot 5, which is owned by the Conns covers the totality of the top floor, level D. Lot 5 has a lot entitlement of 2 compared to a lot entitlement of 1 for each of lots 1 to 4.

Secondly, the body corporate states in its application that the applicable regulation module is the small schemes module. Again this is not the case. Departmental records currently indicate that –

This Community Titles Scheme has been created under an Interim Statement allocated under the provisions of the Body Corporate and Community Management Act 1997.

Upon commencement of the Act in 1997, all schemes were automatically subject to an Interim Community Management Statement, which provides the standard module as the applicable regulation module applying to the scheme. For a scheme to change to another regulation module, it must comply with the procedures set out in the Act, and lodge with the Registrar of Titles a new community management statement. To date, this body corporate has not done this, as the records indicate, and therefore remains under the standard module.

The third and most significant inaccuracy relates to exclusive use areas. The body corporate alleges that the roof area on level D is common property for exclusive use. However this is not the case. Rather the entire roof area forms part of lot 5. The only area of common property on the floor of level D is the Stairs and the small area of landing at the top of the stairs, leading to the doors on both the left and right of the stairs. There are currently no exclusive use by-laws recorded for this scheme, and practically there can never be any, excepting perhaps on level A (the carpark level). On levels B, C and D, the only common property is the stair well. On level A, there is a larger expanse of common property, but presumably most of this area is driveway required for access to the 5 garages. The garages are part of the title to each lot, and are not common property allocated by way of exclusive use.

The relevance of the above point is that the application is not about the responsibility for maintenance of exclusive use common property (as the body corporate suggests), as no exclusive use of common property has been allocated in this scheme. Rather, this application concerns responsibility for maintenance of part of a lot. The two doors for which maintenance is required both form part of lot 5. However there is a distinction to be drawn between the two doors. The first door leading from the common property landing to the patio area is situated on a boundary wall separating a lot from common property. The second door however is totally within the confines of lot 5. Because of this difference, the responsibility for the maintenance of the two doors differs.

The first door is the responsibility of the body corporate to maintain. It is the equivalent of the front door of each of the five lots. It is the responsibility of the body corporate under section 109 of the standard module which provides in part that –

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Duties of body corporate about common property—Act, s 114
109.(1) The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
(2) To the extent that lots included in the scheme are created under a building format plan of subdivision, the body corporate must—
(a) maintain in good condition—
(i) railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and
(ii) doors, windows and associated fittings situated in a
boundary wall separating a lot from common property; and
(bolding for emphasis of relevant provision)
(iii) roofing membranes that are not common property but that provide protection for lots or common property; and
(b) maintain the following elements of scheme land that are not common property in a structurally sound condition—
(i) foundation structures;
(ii) roofing or other covering structures providing protection;
(iii) essential supporting framework, including load-bearing walls.

The responsibility for maintenance of the second door is with the owner of lot 5, the Conns, under the provisions of section 120, which provides as follows –


Obligations of owners and occupiers—Act, s 122
120.(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition. (bolding for emphasis of relevant provision)
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition.
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in need of replacement, must replace it.
(5) This section applies only to a lot that is not a community titles scheme.

I expect that this clarifies the responsibility for repair of the doors.

The further point I will add though is that given that all balconies in the scheme have been included as part of the relevant lot, then the responsibility for maintenance of all doors and windows opening onto these balconies is with the individual owners and not the body corporate. This is so as these doors / windows are internal to a lot, and are not located in a boundary wall separating a lot from common property. This is also the case for all walls which adjoin balcony / patio areas.