Obconica [2002] QBCCMCmr 492 (8 August 2002)

DJ ReardonREFERENCE: 0323-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	4345
Name of Scheme:	Obconica
Address of Scheme:	8 Snowgum Court BURLEIGH WATERS QLD 4220

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

Beatrice McNeice, a Co-owner of Lot 2


I hereby order that within 14 days of the date of this order, the Owners of Lot 1 must pay the Owners of Lot 2 the amount of $199.30, being half the balance of the Body Corporate’s sinking fund as at 18 March 2002.

I further order that within 2 months of the date of this order, the Owners of Lot 2 must at their own expense, engage a tradesperson to carry out painting of the eaves and guttering located around Lot 2 in the same colours as those used around Lot 1.

I further order that within 2 weeks of the completion of the painting described above, the Owners of Lot 2 must remove the section of lattice installed and located between the garages and the upright post supporting the pergola located on the area of common property allocated for the exclusive use of Lot 2. 2n
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0323-2002

“Obconica” CTS 4345

1.	Orders sought

The Applicant, a Co-owner of Lot 2, has sought orders of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”) concerning the painting of guttering and eaves that has been carried out by the Owners of Lot 1. The Applicant also seeks clarification of rights and responsibilities relating to a wall located between the building containing units 1 and 2, and the respective garages.

The “Obconica” community titles scheme consists of 2 lots and common property, and was originally created under a building unit plan of subdivision (now know as a building format plan of subdivision). Departmental records show that an exclusive use by-law has been recorded for the scheme.

The community management statement for the scheme indicates that the Body Corporate and Community Management (Standard Module) Regulation 1997 (“the Standard Module”) applies to the scheme.

2.	Application and submissions

This application was made on 29 May 2002. On 3 June 2002, the Commissioner for Body Corporate and Community Management invited the Owners of Lot 1 to make a written submission about the application. The Owners of Lot 1 made a written submission about the application under cover of a letter dated 5 June 2002. The Applicant requested, and was provided with a copy of this submission pursuant to section 196 of the Act, and has made a brief reply to the submission.

On 23 July 2002, the Commissioner for Body Corporate and Community Management made an initial case management recommendation that the application should be the subject of departmental adjudication.

In the course of my consideration of the application, I conducted an inspection of the parcel on 7 August 2002. In addition, I met with the Owners of both lots, albeit separately due to the hesitation of parties to meet with each other.

3.	Matters in dispute

There appear to be two main matters raised by this application, which I will consider in turn.

3.1

Painting

The first matter raised in the application concerns painting that has been carried out by the Owners of Lot 1.

From the material before me, and my inspection of scheme land, I understand that the Owners of Lot 1 engaged a person to carry out painting to the eaves and guttering around parts of the buildings surrounding Lot 1. The guttering has been painted a shade of green and the eaves have been painted a shade of white. The guttering around those parts of the building surrounding Lot 2 have remained a very light brown-cream colour.

From the material before me and from my discussions with the parties, I understand that the Owners of Lot 1 paid approximately $600 for the painting work. I also understand that the Owners of Lot 1 applied the balance of the sinking fund (approximately $398.61) towards the painting. The material before me evidences some discussion about painting, however it is clear that the work was carried out without the agreement of the Owners of Lot 2.

A large proportion of the eaves and guttering in question are located in an area of common property over which the Owners of Lot 1 have a right of exclusive use. As will be explained in more detail below, this right of exclusive use imposes an obligation on the Owners of Lot 1 to pay for the maintenance and operating costs of the area in question. However, if the Owners of Lot 1 wished to make alterations or improvements to the area, they would require the approval of the Body Corporate. A similar area is allocated for the exclusive use of the Owners of Lot 2.

I wish to make it clear that the sinking fund should be used for carrying out capital, or non-recurrent work on the common property for the Body Corporate. Further, the sinking fund should not be expended without the approval of the Body Corporate. In this case it is my view that it was improper for the Owners of Lot 1 to apply the sinking fund to the painting of eaves and guttering located within the area allocated for their exclusive use, particularly in the absence of agreement of the Owners of Lot 2.

In the circumstances, I consider that it is reasonable for the Owners of Lot 2 to receive a similar benefit of the sinking fund as was enjoyed by the Owners of Lot 1. To this end, I intend to order the Owners of Lot 1 to pay the Owners of Lot 2 the amount of $199.30 being half the balance of the sinking fund at 18 March 2002, which was the balance closest in time to the expenditure of the sinking fund that was available to me. The Owners of Lot 2 will be able to apply this amount toward carrying out painting to the eaves and guttering surrounding Lot 2.

From my inspection, I agree that the eaves and guttering around the buildings should be painted the same colour. Unfortunately this means that either the Owners of Lot 2 must paint the eaves and guttering in the colours chosen by the Owners of Lot 1, or alternatively the parties would have to agree to a different colour, which would have to be applied to all areas including those already painted. At the inspection, the Owners of Lot 1 indicated that while the green was not in their view an ideal colour, it was acceptable to them. Given that it is unlikely that the parties could agree on an alternative colour, and that re-painting all relevant areas a new colour would result in further expense, I intend to order that the Owners of Lot 2 engage a person to paint the areas in the same colours as those applied by the Owners of Lot 1. However, I wish to state clearly that this decision should in no way be taken as an endorsement of the actions of the Owners of Lot 1 to choose and apply colours without the agreement of the Owners of Lot 2.

A further issue is raised concerning lattice that has been erected by the Owners of Lot 2 adjacent to a wall between the garages and the main building and separating the exclusive use areas allocated to Lots 1 and 2. This improvement was made to the common property without the approval of the Body Corporate. At the inspection, the Owners of Lot 1 stated that they were only particularly concerned with a small portion of the lattice work, specifically, the section between the garages and the upright post of the pergola. The Owners of Lot 2 indicated that they had installed this section of lattice as a result of the inconsistent colours painted on the guttering. The Owners of Lot 2 indicated that they would remove this section of lattice when the guttering was painted a consistent colour. I intend to order that upon completion of the painting, the Owners of Lot 2 must remove this portion of the lattice work.

3.2	Classification of wall

The second order sought by the applicant concerns a particular wall on scheme land and raises the question of whether the wall is common property, or part of a lot.

The wall in question runs in a southwest to northeast direction, and separates the main building from the garages. It appears to me from examining the original building unit plan for the scheme that this wall is located on, and forms part of the common property for the scheme.
However, the situation is somewhat complicated in that the wall in question is affected by the exclusive use by law that is registered for the scheme. The wall forms part of the boundary between the areas granted for exclusive use of the owners/occupiers of the lots included in the scheme. The exclusive use area allocated to the owner/occupier of Lot 1 is located to the east of the wall, and the exclusive use area allocated to the owner/occupier of Lot 2 is located to the west of the wall. It would seem to me, that the mid-point of the wall in question forms the boundary of the exclusive use areas.

In terms of maintenance of the wall in question, I refer the parties to section 123(2) of the Standard Module, which provides the following, quote-

(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.

In this case, the relevant by-law states that the owner of the relevant lot is responsible for “all gardening cleaning and maintenance work and all costs thereof from time to time necessary or desirable in respect of such area”. Therefore, the owner of the lot with the benefit of exclusive use is responsible for the maintenance costs of the area allocated for their use by the by-law, including that half of the wall forming part of the exclusive use area. Of course, it may be that in some circumstances the wall will require repairs or maintenance that can only be practically achieved by a co-operative effort between both parties, for example, if a defect arose which affected the wall in its entirety, rather than simply one side of the wall. In such an instance it is for both owners to act reasonably, and to ensure that the wall is maintained in a good condition.

I also wish to note that while an exclusive use by-law entitles an owner or occupier of a lot a right to exclusively use and enjoy a particular area of common property, it does not entitle the owner or occupier to make alterations or improvements to the common property without the proper approval of the Body Corporate (see section 114 of the Standard Module).

4.	Conclusion

In my view, it is important for the Owners of Lots 1 and 2, to familiarise themselves with their rights and obligations as owners of lots included in a community titles scheme. To this end, I have arranged for the Information Service provided by the Commissioner for Body Corporate and Community Management to send the Owners copies of information brochures regarding the Act and the operation of bodies corporate.

Currently there is significant reluctance on the part of Owners to meet, and jointly administer the affairs of the Body Corporate. Clearly there will be issues arising in the future that will necessitate the Owners of Lots 1 and 2 communicating and making joint decisions. In my view it would be beneficial for all parties if previous disagreements could be put aside, and communication channels could be re-opened, at least in regard to the affairs of the Body Corporate.