Sanchelsea [2002] QBCCMCmr 473 (30 July 2002)

P J HANLYREFERENCE: 0366-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7431
Name of Scheme:	Sanchelsea
Address of Scheme:	146 Pacific Parade NORTH KIRRA QLD 4225

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Sanchelsea CTS 7431

P J HANLYI hereby order that the maintenance of the window and doorframe panels, and supporting beams separating the living areas of the lot from the balconies is the responsibility of individual owners, and not the body corporate, for the reasons set out in this order.




STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0366-2002

“Sanchelsea” CTS 7431

The applicant, the Body Corporate for Sanchelsea, has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote –

Who is responsible to pay for the repairs to the windows, doorframes and beams of the ground floor balconies, which are allocated under an exclusive use by-law to the ground floor lot owners?

Who is responsible to pay for the windows, doorframes and beams of the balconies of the upper level lots, where those balconies are part of the lot’s title?

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 body corporate states that work has been carried out on the ground floor balconies where the window and doorframe panels have corroded plus badly rested on the beams that come down from the roof. The body corporate seeks clarification on who is responsible for this repair work.

On Thursday 25 July 2002, I made an unannounced inspection of the scheme, and met the secretary, Jenny McKellar. The inspection was for the purpose of checking the configuration of the balconies of the lots, which I did.

The two relevant sections of the legislation are sections 109 and 123. Section 109 of the standard module provides as follows -

109 Duties of body corporate about common property—Act, s 114
(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
(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.

Section 123 provides as follows -

123 Conditions and obligations under exclusive use by-law—Act, s 136
(1) If the owner of a lot included in the scheme to whom rights are in the first instance given under an exclusive use by-law agrees in writing, the by-law may impose conditions (which may include conditions requiring the owner to make a payment or periodic payments to the scheme’s body corporate or the owners of lots included in the scheme, or both).
(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.

I firstly propose to deal with the question of responsibility in the case of lots 1 to 8. These lots are located on level A which is effectively the ground floor or entry level to the complex. The northern boundary of each lot with common property is the wall of the living area separating the small balcony located at the front of each lot. It is this wall to which repairs have been effected.

Given that this wall forms the boundary of the lot with common property, then under section 109(2)(a)(ii), the body corporate is responsible for “doors, windows and associated fittings”. It is doubtful this includes the beams, although they are probably the responsibility of the body corporate as “essential supporting framework, including load-bearing walls” under section 109(2)(b)(iii). Consequently, the body corporate is prima facie responsible for the repairs in question.

However this question is then complicated by the fact of the grant of exclusive use of the balconies adjacent to the boundary walls in question. Section 123(2) provides that 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.

The actual by-law does make the owner the subject of the by-law “responsible for the performance of the duty of the body corporate under section 38(1)(b)”. This reference is a mistake as there is no section 38(1)(b). I can only assume the intended reference was to section 37(1)(b) which refers to maintenance of lawns and gardens on common property. This section has no application to a balcony. I therefore conclude that the provisions of section 123(2) applies to deem owners of the lot to whom exclusive use has been granted responsible for the maintenance of the wall separating the lot from common property, for the reason that the owners have been granted exclusive use of that adjacent common property.

I now turn to the question of responsibility for the repair of the walls separating the balconies of lots 9 to 24 from the lot. Lots 9 to 24 are located on levels C and D respectively. In the case of these lots, the balcony forms part of the lot and is not common property. Given that the balcony is not common property, then section 109(2) does not apply to the wall requiring maintenance, and the maintenance is the responsibility of each individual owner.

Given that the maintenance is an owners responsibility in each case, then the body corporate is not at liberty to simply undertake the work. However, provided the provisions of section 119 are complied with, the body corporate can arrange for the maintenance to be done to each lot provided that the body corporate has an agreement with the owner for the supply of the maintenance service. For reference purposes I have set out the provisions of section 119 –

119 Supply of services by body corporate—Act, s 120
(1) The body corporate may supply, or engage another person to supply, utility services and other services for the benefit of owners and occupiers of lots, if the services consist of 1 or more of the following—
(a) maintenance services, which may include cleaning, repairing, painting, pest prevention or extermination or mowing;
(b) communication services, which may include the installation and supply of telephone, intercom, computer data or television;
(c) domestic services, which may include electricity, gas, water, garbage removal, airconditioning or heating.
Example—
The body corporate might engage a corporation to supply PABX services for the benefit of the owners and occupiers of lots.
(2) The body corporate may, by agreement with a person for whom services are supplied, charge for the services (including for the installation of, and the maintenance and other operating costs associated with, utility infrastructure for the services), but only to the extent necessary for
reimbursing the body corporate for supplying the services.25
(3) In acting under subsections (1) and (2), the body corporate must, to the greatest practicable extent, ensure the total cost to the body corporate (other than body corporate administrative costs) for supplying a service, including the cost of a commercial service, and the cost of purchasing,
operating, maintaining and replacing any equipment, is recovered from the users of the service.
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