La Grande Residence [2000] QBCCMCmr 624 (30 November 2000)

C G YOUNGREFERENCE: 0321-2000

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17931
Name of Scheme:	La Grande Residence
Address of Scheme:	122-130 Old Burleigh Road BROADBEACH QLD 4218

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

C G YOUNGI hereby order that the application for an order that the body corporate carry out rectification work to the shutters of certain lots, is dismissed.

I further order that the secretary of the body corporate is to serve a copy of this order and the accompanying reasons on all lot owners. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0321-2000

“La Grande Residence” CTS 17931

The applicant body corporate for La Grande Residence has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

That the Body Corporate be authorised to make repairs to the timber shutters which form part of the owners lot but are visible from the exterior of the building and that the Body Corporate be authorised to bill the respective owners for the repairs.

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 applicant states that the shutters of some lots are in a state of disrepair. The shutters are visible from the exterior of the building and the body corporate wants them to be repaired, presumably so that the building presents an attractive façade. The body corporate wants “to be granted the authority to repair the shutters and to seek reimbursement from the respective owners.” In response to a request from this office to clarify the lot owners who constitute the list of respondents, a list of those lots having shutters was provided naming Lots 5 to 12 in “A” tower, Lots 17 to 30 in “B” tower and Lots 37 and 38 in “C” tower (no lots in “D” tower have shutters). The list does not distinguish those lots which have shutters requiring maintenance repair, however for reasons which will become clear later, I have not pursued this oversight with the applicant.

On 30 November 2000 I carried out an inspection of the building in the presence of the building Letting Agent, Lars Madsen, to identify and examine the various positions of the shutters. Even a brief inspection of some representative lots showed that maintenance work is necessary.

“La Grande Residence” was registered as a building units plan (now termed a “building format plan”) and on 1 February 2000 a new community management statement was recorded adopting the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (hereafter “the Accommodation Module”) as its regulation module.

The inspection confirmed the impression obtained from a number of photographs submitted with the application that the shutters form part of the building style, being perhaps French Colonial or similar. The tower stairwells have largely fixed external shutters while individual lots have, variously, fixed shutters, moveable shutters, or are without shutters. Three owners have submitted that the shutters form such an integral part of the building façade that they should be regarded as common property and be the responsibility of the body corporate to maintain. They argue that even those owners of lots without shutters gain a benefit from the shuttered lots, as it is the shutters which both define the character, and contribute significantly to the aesthetics, of the building as a whole. Such owners, they argue, should have no complaint with the body corporate funding the maintenance of visible shutters regardless of whether the shutters are common property or privately owned, because of the community benefit they provide.

The applicant body corporate has not argued similarly. It merely seeks an order to carry out repairs to those shutters “which form part of the owners lot” and are visible from outside the building, and to then bill the owners for the cost of the repairs. By “repairs” I think the applicant actually wishes to cover repair, replacement and the painting of shutters as is necessary in each case, and “maintenance” would more properly describe the desired action to rectify the unsightliness of the building’s appearance.

The legislation makes no provision that parts of an owner’s lot, including any fixtures and fittings, which form part of the general façade of the building are for that reason part of common property. Nor does it shift the responsibility for maintenance from the owner to the body corporate just because the parts are externally visible. The legislation sets out in some detail just which party (body corporate or owner) is responsible for the maintenance of common property and the private property of owners. Largely, maintenance follows the logical rule that owners are responsible for maintaining their lot and the body corporate is responsible for common property, though that is not so in all instances.

Section 37(1) of the Act provides that owners holds rights as tenants in common over the common property, and sections 87 and 114 provide that it is the body corporate which administers, manages and controls the common property. Section 108 of the Accommodation Module provides that the body corporate must generally maintain the common property, and maintain it in “good condition”. Section 119 of the Accommodation Module requires that owners must generally maintain their lots, again in good condition. In determining who has the maintenance responsibility for the variously positioned shutters, an examination is necessary of both the maintenance provisions, in particular the exceptions to the general rule, and whether the shutters are common property or the property of the relevant owners. I shall now consider each of the three categories of shutters in turn.

The shutters sited in the stairwell towers are clearly part of common property and the responsibility of the body corporate, except in respect of the upper level area. Lots 29 and 30 are both situated on the top level of tower B and the stairwell landing areas are not common property but part of their respective lots. Despite this difference, the external windows of the landing areas are a body corporate responsibility under section 108(2)(a)(ii) of the Accommodation Module which imposes the duty of maintenance on bodies corporate for “windows and associated fittings situated in a boundary wall separating a lot from common property”. The shuttered awning above the respective windows, and the shutters inset below the windows, are in both instances sited in the outer half of the boundary wall and therefore are common property. Accordingly, all of the shutters in the stairwell towers are the responsibility of the body corporate.

In regard to those full-length shutters fitted to tracks and generally referred to in correspondence as “sliding shutters”, which are sited on lot balconies immediately behind the balcony railings, these are sited on the relevant lots and are the maintenance responsibility of the relevant owners. As I have already said, the fact that they are part of the building’s façade does not attract the responsibility of the body corporate. This responsibility is in contrast to the body corporate responsibility to maintain the balcony railings on those lots as the result of the application of section 108(2)(a)(i) of the Accommodation Module. This provides that the body corporate must maintain “railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property”. The outer metal railings fall within this category but not the sliding shutters which are completely separate items even though fixed to the inner edge of the railing base.

The remaining category of shutters is those that are fixed to the upper surface of the railings/balustrades. In one takes the view that the shutters do not form part of the balcony railing/balustrade (hereafter “railing”), then responsibility will depend on the position of the shutters in relation to the centre-point boundary line of the railing (La Grande Residence being a building unit plan where the boundary between lots and common property includes the railing centre-point). The situation can become absurd where, for example, the shutter lays one-fifth over the centre line requiring a one-fifth/four-fifth split of cost between the owner and the body corporate. It is even more absurd where similar structures in different lots were positioned variously by the builder, leading to a variety of cost splits amongst owners. It is just this sought of difficulty, and often absurd result, in measuring and apportioning costs of structures straddling centre-point boundary lines both in railings and in walls generally, which led to the legislative amendments in section 108 to have the body corporate assume responsibility for doors and windows in walls, and for balcony railings, regardless of where these items were positioned in relation to the centre-point boundary line.

I have one last comment in respect of shutters sited on railings. Because the matter has been raised in the attachments to the application, and directly precipitated this application, I will comment on the legal opinion obtained by the body corporate on this third category of shutters. Although the opinion was given in respect of the Standard Module (the regulatory module of the body corporate at the time) the provisions referred are identical to those in section 108 of the Accommodation Module. At paragraph four, the advice states that they (the solicitor’s firm) would argue against the application of section 109(2)(a)(i) under the Standard Module (identical to section 108(2)(a)(i) under the Accommodation Module), on the basis that section 109(3)(a) (identical to section 108(3)(a) of the Accommodation Module) applies as “the shutters are fittings installed by the occupier at the time (that is the original developer) for the occupier’s own benefit”. I disagree with that view as the shutters were not fitted by the developer in the capacity of the occupier of the relevant lots but as the developer, and before registration of the plan when lots could be said to be “occupied”.

In my view it is entirely equitable for this third category of shutters to be regarded as part of the railing and therefore the responsibility of the body corporate to maintain.

That concludes my findings as to the responsibility for the maintenance of the variously positioned shutters. It now remains for me to determine the other part of the applicant’s request, namely for a order that the body corporate carry out the necessary repairs and bill the relevant owners for the cost of those repairs.

Under my findings, this will only have relevance to the second category, namely the “sliding shutters”.

I am unsure why the body corporate has made this application in view of the avenue available to it under the Act to do exactly what it seeks by order. Perhaps the real reason was to have the responsibility for the various shutter categories established objectively. In any case, the following sections set out the approach it should take -

Firstly, Section 123 of the Act provides a head of power for regulation modules to make provision for bodies corporate to undertake neglected work on a lot -
ú

Body corporate’s authority to carry out work of owners and occupiers

123. The regulation module applying to a community titles scheme may

authorise the body corporate, in circumstances specified in the regulation

module, to carry out work the owner or occupier of a lot is obliged to carry

out, and to recover reasonable costs of carrying out the work from the

owner of the lot as a debt.

ú

Body corporate may carry out work required of owners and

occupiers—Act, s 123 [SM, s 121]

120.(1) This section applies if the owner or occupier of a lot included in

the scheme does not carry out work that the owner or occupier has an

obligation to carry out under—

(a) a provision of the Act or this regulation, including a provision

requiring an owner or occupier to maintain a lot included in the

scheme; or

(b) a notice given under another Act or a Commonwealth Act; or

(c) the community management statement, including the by-laws; or

(d)	an adjudicator’s order; or

(e) the order of a court.

(2) The body corporate may carry out the work, and may recover the

reasonable cost of carrying out work from the owner of the lot as a debt.

Lastly, the Act provides in section 125 the means for a practically facilitating such maintenance -
ú

Power to enter lot

125.(1) A person (an “authorised person”) authorised by the body

corporate for a community titles scheme may enter a lot included in the

scheme, or common property the subject of an exclusive use by-law, and

remain on the lot or common property while it is reasonably necessary—

(a) to inspect the lot or common property and find out whether work

the body corporate is authorised or required to carry out is

necessary; or

(b) to carry out work the body corporate is authorised or required to

carry out.

(Adjudicator’s Note: The balance of the section concerns the proper notice to be given the owner by the body corporate prior to entry which needs to be complied with if action is taken).

In summary, the legislation already provides a means for the body corporate to take the action it desires. What is unsaid is how the body corporate should put the procedure in motion – I suggest the first step is to identify those sliding shutters which require repair, replacement and/or painting, and give written advice to the relevant owners of the problem requesting them to rectify it. The photographs submitted show that at least some shutters do need attention.
Of course the body corporate is entitled to seek an order to this end but in this application no evidence was provided as to either the particular lots involved or that rectification was needed (i.e. the damage in each case). Of course the body corporate also did not know which category of shutters were to be whose responsibility as determined by this order. I cannot see the point in a further application for the purpose and I suggest the body corporate identify the problem areas, notify the owners to rectify and proceed if they do not.

As the body corporate will already need to engage a tradesperson to rectify (repair/paint) the shutters it is responsible for (categories 1 and 2), perhaps it might wish to utilise the “service arrangement” mechanism provided by section 118 of the Accommodation Module where owners can have the same tradesperson carry out the owners rectification work (to category 3 shutters) and bill them. It will provide convenience for absentee owners, promote a uniformity in the appearance of the building, and likely be at less cost to owners than if they contracted individually. The cost charged can equate to actual work done and not be charged according to lot entitlement which will likely not be equitable in these circumstances.

For the above reasons I have dismissed the application in respect of the order sought. However I believe that my reasons will facilitate the body corporate resolving the problem. Because of the misunderstanding which the terms of the order itself may cause, and the relative complexity of the matter, and the desirability of owners being clear as to their responsibility, I have ordered that all owners (who have already received notice of the application) be served with a copy of this order. This measure should also facilitate the task of the body corporate in rectifying the problem now and in the future. 2n