Mariners Village Two [2000] QBCCMCmr 349 (14 July 2000)

RA MeekREFERENCE: 0215-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6072
Name of Scheme:	Mariners Village Two
Address of Scheme:	1 Lee Road RUNAWAY BAY QLD 4216

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

Albert and Jill Fountain, the owners of lot 35.



RA MeekI hereby order that the application by Albert and Jill Fountain, the owners of lot 35, for an order 2ythat the owner/s of unit 98 bear equal responsibility for the cost of repairing balcony floor /ceiling to prevent water penetration, or that the body corporate – if liable – pay the total cost of membrane removal/re-installation, is dismissed.

I further order that Albert and Jill Fountain, the owners of lot 35 shall within six weeks of the date of this order, and at their expense, waterproof the balcony of their lot 35 so as to prevent water penetration onto lot 29 below.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0215-2000

“Mariners Village Two” CTS 6072

The applicants, Albert and Jill Fountain, the owners of lot 35, have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

That the owner/s of unit 98, bear equal responsibility for the cost of repairing balcony floor/ceiling to prevent water penetration.

That the body corporate – if liable – pay the total cost of membrane removal/re-installation.

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)).

In the supporting grounds, the applicants acknowledge that there is water penetration from the balcony of lot 35 to the balcony of lot 29. The applicants have referred to a quotation from Jeffrey Hills and Associates when stating “that the water penetration occurs partly due to cracks in the membrane and also shrinkage and cracking of the concrete of the balconies”. The applicants state that even though the body corporate has previously repaired balconies, it has denied responsibility in this case as there is not a membrane on the balcony. The applicants contend that if the body corporate is not responsible for the repairs, then the owner of lot 29 should be jointly liable as the concrete slab forms the ceiling of her balcony and there is no reason to believe that the cracks are due to shrinkage only on lot 35.

The applicants have supplied a facsimile copy of a report from Jeffrey Hills and Associates dated 22 September 1999 which states that water penetration occurs through the tiled areas of the decks of the building during periods of extended rain. In the opinion of Jeffrey Hills and Associates “the cause of the problem is traced to cracks that have occurred in the slabs of the balcony area. Shrinkage and structural affects results in cracking of the concrete on the balconies.” Also provided in the application is a copy of the minutes of a committee meeting dated 7 February 2000 which states in part that the body corporate has no responsibility for the water penetration problem from balconies as there is no membrane on the balconies and common property is not involved. The minutes of a committee meeting dated 26 October 1999 notes that several “balconies are leaking, causing damage to units below” and “that the procedure in the past had been for the unit owner to remove and replace the tiles, at their expense while the body corporate was responsible for the cost of removing old protective coverings and the installation of a new waterproof membrane”.

A copy of the application was forwarded to the body corporate secretary and to the body corporate manager. The submission from the body corporate manager confirms that Jeffrey Hills and Associates did investigate the roof and certain balcony areas. Ms Sargeant states that it has been proven that a waterproofing membrane has not been installed. She further advises that the contractor stated that the “real problem is that the grout between the tiles on the balcony has broken down and is allowing water to seep through porous grout lines”. It is stated that the contractor advised that a seal could be applied to the grout which has a 98% success rate in preventing further water penetration. The submission from Ms Sargeant and from three of the committee members confirms the view of the committee expressed at the 7 February 2000 committee meeting.

The balcony which is the subject of this application forms part of 2ylot 35. This balcony covers part of lot 29 on level B of BUP 9242. The boundary between lots 29 and 35 is located at the centre of the concrete slab of this balcony (section 49C(4) of the Land Title Act 1994).

The floor of the balcony is part of lot 35 and is the responsibility of the lot owner to maintain in good condition under section 120(2) of the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module). The tiled areas of the balcony are within lot 35 and are the responsibility of the lot owner to maintain.

The owner’s maintenance responsibility is subject to section 120(3) of the Standard Module which states:

“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.”

The body corporate’s responsibility to maintain a part of a lot is provided for in section 109(2) of the Standard Module. Section 109(2)(a)(iii)and (b)(ii) states:

“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—

(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—

(ii) roofing or other covering structures providing protection”

The submission from the body corporate manager indicates that it is accepted that there is not a waterproofing membrane on the balcony slab of lot 35. Therefore, the body corporate does not have an obligation to maintain under section 109(2)(a)(iii). It is noted that the body corporate has removed old protective coverings and installed new waterproofing membranes in the past. This does not mean that the body corporate has an automatic obligation to maintain all balcony structures. Each instance of water penetration should be considered individually and based on the relevant facts.

The body corporate has a responsibility under section 109(2)(b)(iii) of the Standard Module to maintain roofing or other covering structures that are not common property in a structurally sound. The balcony of lot 35 is not common property, and does provide a degree of protection to lot 29. The body corporate has a responsibility to maintain such a structure in a structurally sound condition. I would consider that a structure such as a balcony would not be structurally sound if it is not fit or safe to be used for its ordinary purpose. There has been no evidence provided with the application which suggests that the balcony concrete slab is not structurally sound. The report from Jeffrey Hills and Associates refers to cracking of the concrete caused by shrinkage and other structural effects. There has been no reference to any defect in the balcony structure of a structural nature. Therefore, the body corporate does not have a responsibility under this provision of the Standard Module.

For the above reasons, I find that the owners of lot 35 are not relieved of their responsibility under section 120(2) of the Standard Module to maintain their lot in good condition. It is reported that water penetrates through the tiled areas of the balcony during periods of extended rain. The owners are responsible for the maintenance of these tiles and have an obligation to ensure that water does not penetrate through these tiles or from the floor of the balcony onto another lot or common property. The owner of lot 29 has no legislative duty to be wholly or partly responsible for any waterproofing costs in this instance.

Therefore, I have dismissed the order sought and substituted a further order that within six weeks of the date of this order, the applicants have the balcony which covers part of lot 29 waterproofed in such a manner as to prevent any further water penetration into lot 29. The applicants should also be aware that if the owner of lot 29 has suffered damage due to water penetration, she has a right to apply for an order seeking compensation under section 227 of the Act. This section states:

“(1) If the adjudicator is satisfied that the applicant for the order has suffered damage to property because of a contravention of this Act or the community management statement, the adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for

the contravention—

(a) to carry out stated repairs, or have stated repairs carried out, to the damaged property; or

(b) to pay compensation of an amount fixed by the adjudicator.

Example—

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition, the adjudicator could, on application of the lot’s owner, order the body corporate to have the damage repaired or to pay appropriate compensation.

(2) The order cannot be made if—

(a) for an order under subsection (1)(a)—the cost of carrying out the repairs is more than $75 000; or

(b) for an order made under subsection (1)(b)—the amount of the compensation is more than $10 000.”