King Lodge [2002] QBCCMCmr 329 (27 May 2002)

MF MorganREFERENCE: 0107-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	21040
Name of Scheme:	King Lodge
Address of Scheme:	103 Lower King Street CABOOLTURE Q 4510

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

Mrs Carmel Joyce Manton, the Owner(s) of lot 1

MF MorganI hereby order and direct that the King Lodge Body Corporate call a general meeting of both of its members within three months of the date of this order, to consider a motion to be moved, which proposes to either repair or replace the down pipes located on the outside walls of lot 2, with the cost to be borne by the Body Corporate and also the Body Corporate must consider the imposition of special contributions by the owners of lots 1 & 2 relating to the cost of this repair or replacement. Further if the cost of the works is greater than $400.00, then two quotations must be obtained and both lot owners given copies of the quotations and retained as an attachment to the minutes of the meeting at which the quotation is considered.

I further order that the owner or occupier of lot 2 shall not park or stand a motor vehicle on any part of the common property unless and until the authorisation of the Body Corporate has first been sought and obtained.

I further order that the owner or occupier of lot 2 is to remove and keep removed from the lot and the common property generally, the rotweiller presently being kept on lot 2 unless and until the authorisation of the Body Corporate has first been sought and obtained.

I further order that the application for an order for the “Ceasing of fighting, foul language, slamming of doors” is dismissed.

I further order that the application for an order that “All surrounds to be clean and tidy” is dismissed.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0107-2002

“King Lodge” CTS 21040

The applicant Mrs Carmel Joyce Manton, the Owner of lot 1, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

1. Repairs of drain pipes on unit 2.
2. No parking of car in driveway, preventing our entry and exit to property.
3. Ceasing of fighting, foul language, slamming of doors.
4. Removal of dog from property.
5. All surrounds to be kept clean and tidy.

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)).

Down pipes on unit 2

The applicant has provided three photos showing downpipes in need of repair. She has advised that the down pipes are located around the walls of lot 2. The respondent states that she is a pensioner and will get the drains replaced when she has the money.

Under section 109 of the Standard Module, the body corporate is responsible for repairs to common property, which includes infrastructure pipes (see section 21 of the Act), except where the pipe solely services the lot and is within the boundary line or the inside surface of any boundary structure.

Here the problem relates to down pipes, which drain water from the roof. The roof is common to both lots. The down pipe therefore does not solely service lot 2. The body corporate comprised of the two lot owners has the general maintenance responsibility for full cost of the repair of the down pipes even though they are on the outside of lot 2. I propose to order accordingly.

Dog

It is clear from the information supplied by both parties that the dog is upon the premises. The dog belongs to the friend of the owner of lot 2 who resides with her.

When the dog first came to the premises the respondent claims that the applicant agreed to this and said it would be good to have a dog so that it would protect her and stop intruders.

However since then the dog’s presence has become the subject of dispute. The respondent has referred to an incident where the dog started to bark and snarl at a person called Geoffrey. Geoffrey then went to kick the dog and threatened that if the dog bit him that he would kill it.

If as the applicant states, the dog is a savage rotweiller which is tied up at the back door and prevents the use of the back of the property, then the dog is constituting a nuisance within the terms of section 129 of the current Act and interfering unreasonably with the use and enjoyment of the common property and the lots within the scheme.

However without making any finding in this regard, I intend to base my order on a contravention of by-law 11 for the following reason.

The body corporate was in existence before the commencement of the Act on 13 July 1997 and retains the by-laws applying to it immediately before that date. Here the by-laws contained in the Third Schedule to the previous legislation (the Building Units and Group Titles Act 1980) applied to the body corporate before and continue to apply.

By-law 11 provides as follows:

Keeping of Animals

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 lot or the common property.

Because there is no evidence that the written approval of the body corporate has been obtained to the keeping of the animal upon the lot or upon the common property, the keeping of the dog is in contravention of by-law 11. The owner or occupier of lot 2, is to remove and keep removed the dog from lot 2 and the common property generally.

Car

The applicant is seeking an order as follows:

“No parking of car in driveway, preventing our entry and exit to property”.

The respondent states that the car belongs to her friend who lives with her. It cannot be parked in the garage, as there is furniture there. All was fine about the parking until the ‘rot’ started.


By-law 2 provides as follows:

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.

The terms by-law 2 concerning “vehicles” are clear and I propose to order as requested. The area on which the occupier of lot 2 has parked a vehicle is common property. They should cease parking on the common property unless authorised.

Fighting

The applicant seeks an order for the ceasing of fighting, foul language and slamming of doors and states that the fighting is so bad it worries other neighbours. Both parties confirm that the police have been called.

The respondent states that foul language comes from both sides of the fence from dusk to dawn and is contributed to by the sons (the invitees) of the applicant who don’t live on the premises.

By-law 6 relevantly provides as follows-

6. Behaviour of invitees. A proprietor or occupier of a lot shall take all reasonable steps to ensure that his 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.

Also Section 129 of the Act provides as follows:

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.

Hence the legislation provides that all occupiers of lots have the right to the peaceful enjoyment of their lot and the common property, free of any nuisance by other owners, tenants or their invitees.

The applicant has not provided specific details about the fighting, foul language or slamming of doors and it is difficult to make any findings about these allegations. Likewise I cannot determine whether the applicant’s sons swear, use foul language and are abusive and threatening as respondent alleges.

It is apparent that there is conflict between both the applicant and the respondent with both accusing the other or their invitees of wrongful conduct. On 9 May 2002, this Office telephoned the Caboolture Police who were provided with details of the parties to the dispute and scheme details. However the Caboolture Police were unable to identify any formally registered complaint in relation to the matter.

Overall, I am of the view that both parties should adopt a more conciliatory approach in their dealings with each other so that the administration of the body corporate can proceed in accordance with the requirements of the Act and the Standard Module.

Also I would hope that any order would cause least friction between the parties and create the opportunity for a pathway towards future reconciliation. For the time being and for these reasons I do not propose to make an order in this respect but would remind both parties of their obligations under the Act and by-laws.

Clean and tidy surrounds

The applicant seeks an order that all surrounds are to be kept clear and tidy and states that the concrete is never swept. Cigarette buts are thrown in the garden and empty cartons are left around.

The respondent states amongst other things that the cement driveway is always kept clean. No cigarette butts or empty cartons are lying around the ground or in the gardens.

Section 120 of the Standard Module provides as follows:

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.

(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.

The section is clear that it is the owner’s responsibility to maintain their lot in good condition, but also, that this obligation does not extend to any part of the lot which is the responsibility of the body corporate to maintain.

Both the applicant and the respondent should be aware of what parts of the scheme comprise common property and also should be aware of their mutual obligations relating to the common property.

However on the material before me, there is insufficient evidence to grant the order sought against the respondent and I propose to dismiss this aspect of the application.

General

Certain of the issues raised in this application illustrate a lack of understanding by both lot owners about the role and responsibility of the Body Corporate.

In this case, the scheme land is subdivided by group titles plan 1661 (now termed a “standard format plan”). When the group titles plan registered in 1987, the King Lodge Body Corporate was created. This Body Corporate is a legal entity comprised of the owners of lots 1 & 2. The owners do not have any choice as to whether or not they will be body corporate members. They are both automatically members of the Body Corporate.

I would take this opportunity to remind both lot owners that the Act requires a comprehensive form of internal governance and responsibility by the Body Corporate including the requirement for the Body Corporate to hold annual general meetings and to agree on budgets for the administrative and sinking funds for each financial year. Both owners are required to contribute to these funds.

The Body Corporate has the general responsibility to maintain, manage and control the common property for the benefit of both lot owners.

Both owners should inform themselves about the obligations imposed under the Act.

I would take also this opportunity to inform both lot owners that a freecall information service has been established by the Commissioners Office to provide owners with information regarding the provisions of the Act. The service includes the following state-wide 1800 freecall inquiry line accessible during business hours at no cost: Phone: [phone]. The parties may find this service helpful.

I would further encourage both parties to engage in the alternative dispute resolution processes provided by this Office so that any future disputes may be resolved.