Raceview Gardens [2000] QBCCMCmr 415 (18 August 2000)

CG YoungREFERENCE: 0325-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19840
Name of Scheme:	Raceview Gardens
Address of Scheme:	34 Thornton Street RACEVIEW QLD 4305

TAKE NOTICE that pursuant to an application made under the abovementioned Act co-jointly by: Ernest William and Joan Merle MUNT, the co-owners of Lot 7; Laura Mary SMITH, the owner of Lot 8; Daisy Mabel JONES, the owner of Lot 9; Janice Veronica OSLAND, the owner of Lot 10; Vera Georgina Oliver, the owner of Lot 11; Adeline Estelle STUMER, a co-owner of Lot 21; Martha ORR, the owner of Lot 22; and Kathleen Vida SMITH, the owner of Lot 27,

CG YoungI hereby order that, if they have not already done so; John Dominic and Andreja MARINOV, the co-owners of Lot 12; Gayle Eleanor LAWRENCE and Neil Alan MOORE, the personal representatives for Lot 18; Jerry and Cathy MARINOV, the co-owners of Lots 19 and 20; Ruth Elizabeth LADLEY, the owner of Lot 24; Scott Kennedy SMITH and Kylie Ann HOWSON, the co-owners of Lot 28; and Joseph Gary and Eleanor Rae CURRIE, the owners of Lot 30, must within two (2) months of the date of this order-

1. Have a termite prevention treatment carried out on their lot which is consistent with and complements the treatments carried out on other lots in the same building block, and

2. Give written advice to each applicant who owns a lot in their building block of the termite prevention treatment carried out.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0325-2000

“Raceview Gardens” CTS 19840

The applicants have sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

We would like a decision on whether these other units need to be treated to protect their neighbours property.

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)).

The applicants are the owners or co-owners of Lots 7, 8, 9, 10, 11, 21, 22 and 27. The applicants have named the owners of Lots 12, 18, 19, 20, 24, 28 and 30 as the other parties to the dispute. Lots 7, 8, 9, 10 and 11 form part of the same building block as Lot 12. Lots 21 and 22 form part of the same building block as Lots 18, 19, and 20. Lot 27 forms part of the same building block as Lots 24, 28 and 30.

In the supporting grounds, the applicants state that they have had termite barrier treatment carried out around their units. However, the owners named as the other parties to the dispute have not had their lots similarly treated. As a consequence, there is an incomplete barrier around each building to prevent termite entry. The applicants state that this problem has caused a lot of worry to them and many other owners. Termites have reportedly been found in at least two lots in the complex and also in fences surrounding the complex. All of these termite infestations have been treated.

This office forwarded a copy of the application to the body corporate secretary for distribution to all owners and the committee, and to each of the respondent lot owners specifically named as parties to the dispute. Four of the seven respondent lot owners responded to the application. The owners (or their representative) of Lots 18, 24 and 30 have submitted that their lots have been treated for termites and they have no need to do anything more. The owners of Lot 28, Scott and Kylie Smith, responded that they have done a thorough inspection of their unit for white ants and consider that their unit has not been affected. They state further that when they are financially able they will have their lot treated. Greg Panzram, the owner of Lot 25 has submitted that termite infestation was evident in the building on his lot but it has been remedied. He refers to a tree stump on Lot 26 which was termite infested and which he believes was the source of the termites in his unit.

“Raceview Gardens” was registered as a group tiles plan under the Building Units and Group Titles Act 1980. With the commencement of the current Act 2non 13 July 1997, a group titles plan is now taken to be a standard format plan of subdivision under the Land Title Act 1994. The scheme comprises 33 lots grouped into a number of building blocks with each lot having a residential building with a common (or “party”) wall joining it and one or both neighbouring lot buildings.

A group title plan is a subdivision of land and therefore owners, although they are tenants-in-common of the scheme’s common property, have individual title to their lots as defined by the relevant boundaries shown on the scheme’s registered plan. That is, each owner owns the building on their lot, the land on which it is sited, and the land lying between the external walls of the building and their lot boundary.

Section 109 of Body Corporate and Community Management (Standard Module) Regulation 1997 (which regulates “Raceview Gardens”) imposes on the body corporate the duty to maintain the common property in good condition. I consider that this obligation relates not only to rectifying an obvious defect in common property, but extends to performing work which may reasonably be expected to minimise the likelihood of future maintenance of common property. A simple example of this is painting – while it also has a decorative function, its main purpose is a preventative one against rot for timber or rust for metal. Given that at least two lots in the scheme have been affected by termite infestation, and there are a number of lot owners concerned about the matter, the body corporate should consider (if it has not already done so) engaging a pest control contractor to conduct a termite inspection of the common property.

Section 120 of the Standard Module imposes on each owner a duty to maintain their lot in good condition. As I stated earlier, the owner of each lot in a standard format plan of subdivision owns the building on their lot, the land on which it is sited and the land lying between the external walls of the building and their lot boundary. The concrete slab floor of the lot building is also part of each lot.

Each lot owner has a responsibility to maintain their lot which includes responsibility for pest prevention. The maintenance obligations of a lot owner are similar to those of the body corporate to the extent that the obligation relates not only to rectifying an obvious defect in the lot, but extends to performing work which may reasonably be expected to minimise the likelihood of future maintenance of the lot. The simple example of painting wood or bare metal again applies, as does reasonable pest prevention.

The applicants have stated that termites have been found in at least two lots in the complex and also in the fences surrounding the complex, and that all of these termite infestations have been treated. As stated earlier, the owner of Lot 25 has confirmed that termites were evident in his lot. The applicants are concerned that the effectiveness of the termite treatment carried out on their lots is jeopardised because owners of other lots in their building block have not had their lot treated. The result is an incomplete termite barrier around the relevant building blocks. Three of the seven lot owners named as respondents assert that they have had their lots treated for termites. However, while Lots 18, 24 and 30 may have been treated, the building blocks in which the applicants own lots do not have a complete termite barrier around them. A partial barrier is no barrier at all.

Every owner must be aware that termite damage can be extensive and costly to repair. Infestation is also difficult to detect. While protective treatment is itself costly, that cost must be weighed against the high cost of eradication and repair. The damage caused by termites and the extent of termite infestation in Queensland has received widespread coverage in the media recently, and this has probably raised the concerns of the applicants and other owners, particularly after evidence of termite activity in the scheme.

Given that there is, or has been evidence of termite infestation in the scheme, in my opinion each lot owner has an obligation to take preventative measures to maintain their lot in good order and condition. However, it is not possible for a lot owner to adequately protect their property from possible damage if the owners of other lots in the same building block do not have similar treatment performed on their lot to close the barrier gap. In the situation which is evident in this scheme, I consider that it is reasonable for each lot owner named as another party to the dispute to carry out termite prevention work on their lot. The only manner in which owners can effectively carry out this work in the building blocks where owners have a concern, is for all owners in the block to have the treatment done. If this is not done then not only are all the lots in the block exposed to termite infestation, but those who did not have it done would likely carry the liability for any infestation and with a likely claim for compensation against them for repairs. In that regard, section 227 of the Act provides:

“(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.”

In a nutshell, it is in the interests of every owner in the building blocks to have the protective barrier completed.

For these reasons, I have ordered that, if they have not already done so, the owners of Lots 12, 18, 19, 20, 24, 28 and 30 must firstly, have a termite prevention treatment carried out on their lot which is consistent with and complements the treatments carried out on other lots in the same building block, and secondly, must inform each applicant who owns a lot in their building block of the prevention work carried out on their lot.

Lastly, I would mention for the benefit of owners that section 119 of the Standard Module provides a means for owners to enter into an arrangement with the body corporate whereby pest prevention is carried out under its auspices for participating owners. That is, the body corporate can arrange a pest control contractor to carry out pest prevention to the lot buildings of those owners who choose to have it done and recover the full cost from those owners. A vital component of this method is that there is no compulsion for owners to allow the body corporate to have pest prevention work performed on their lot.
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