Day Dawn [2002] QBCCMCmr 554 (5 September 2002)

DJ ReardonREFERENCE: 0369-2002

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	3112
Name of Scheme:	Day Dawn
Address of Scheme:	1 Annie Street WOODY POINT QLD 4019

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

Pamela Paul, the Owner of Lot 8


DJ ReardonI hereby order that within 6 weeks of the date of this order, the Body Corporate shall engage a suitably qualified tradesperson to repair, and where necessary, replace, the row of tiles abutting the northern edge of the balcony of Lot 8.

I further order that within 6 weeks of the date of this order, the Body Corporate shall engage a suitably qualified tradesperson to rectify the deteriorated rendering on the front edge of the balcony of Lot 8.

I further order that the work required by this order shall be completed in a proper workmanlike manner.

I further order that within 14 days of the date of this order, the Secretary for the Body Corporate must provide a copy of this order and the accompanying statement of reasons to each owner of a lot included in the “Day Dawn” community titles scheme.
STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0369-2002

“Day Dawn” CTS 3112

1.	Orders sought

The Applicant, the Owner of Lot 8, has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), concerning maintenance responsibilities under the Act. Specifically, the Applicant requests clarification of whether she, or the Body Corporate, is responsible for rectifying certain cracked tiles and damaged rendering, located on the balcony of Lot 8 (the details of the maintenance issues are outlined in more detail below).

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 the Act or the community management statement; or
c)	a claimed or anticipated contravention of the terms of, 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 community management statement for the “Day Dawn” community titles 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 dispute resolution application was made on 24 June 2002. On 1 July 2002, the Commissioner for Body Corporate and Community Management (“the Commissioner”) invited the Committee for the Body Corporate, and all owners of lots included in the scheme to make a written submission about the application. However, no submissions were received.

On 25 July 2002, the Commissioner made an initial case management recommendation that the application should be the subject of departmental adjudication.

On 16 August 2002, I wrote to the Body Corporate care of the Body Corporate Manager and requested the Body Corporate to provide me with an engineer’s report on the area in dispute to assist me determine the cause of the problem, and in turn, determine responsibility for repairs. In a letter dated 19 August 2002, the Body Corporate Manager expressed a number of concerns regarding my letter requiring the Body Corporate to obtain an engineer’s report.

In order to further progress the resolution of the application, on 4 September 2002, I conducted an inspection of the balcony of Lot 8 and met with the Applicant, her sister, and two of the Body Corporate Managers for the scheme.

3.	Matters raised in the application

The Applicant has raised two main repair and maintenance issues in this application. Firstly, the Applicant has described, and provided photographs of a number of cracked floor tiles. Theses tiles are located on the balcony of Lot 8, and primarily abut the edge of the balcony. I also note that some of the cracks in the floor tiles adjoin the points on the balcony where the railing is attached to the balcony. In addition, it is also evident that at least one of the tiles is significantly lifting away from the balcony.

The second matter raised by the Applicant concerns the rendered surface on the outside face of the balcony. At the inspection, I observed that this surface had deteriorated in that the surface is bubbling and at some points is coming away from the balcony, and also shows some discolouration.

I also wish to note that at the inspection, it also appeared, (from the Applicant’s balcony) that the balcony of Lot 7 shows similar problems as that described above in respect of Lot 8.

4.	Repair and maintenance responsibilities

The “Day Dawn” community titles scheme was originally created under a building units plan of subdivision (now known as a building format plan of subdivision). This type of plan defines land using the structural elements of a building including walls, floors and ceilings, and the projections of those structural elements (see section 48C of the Land Title Act 1994). Generally, where a lot is separated from another lot, or common property by a floor, wall or ceiling, the boundary of the lot is the centre of the wall, floor and ceiling (see section 49C(4) of the Land Title Act 1994).

After reviewing the relevant plan of subdivision, it seems to me that in respect of the balcony of Lot 8, the boundary of Lot 8 is located at the edge of the balcony.

Section 109(1) of the Standard Module imposes an obligation on bodies corporate to maintain the common property for the scheme in a good condition. Similarly, section 120(2) of the Standard Module requires owners of lots included in a community titles scheme to maintain their lots in a good condition. However, in the case of a scheme created under a building format plan of subdivision, section 109(2) of the Standard Module imposes some additional obligations on the body corporate. Specifically, section 109(2) of the Standard Module provides the following,

(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.

5.	Determination

In most cases, any necessary maintenance and repair of floor tiles located on a balcony within the boundaries of a lot are the responsibility of the owner of the lot. However, in my view and in respect of schemes created under a building format plan of subdivision, if the balcony of a lot “provides protection” for other lots or common property in the scheme (in many cases, the balcony of the lot below), then the body corporate has an obligation to maintain the balcony in a structurally sound condition in accordance with section 109(2)(b)(ii). In addition, the body corporate has a clear duty under section 109(2)(a)(i) to maintain any railings that are located on, or for all practical purposes located on, the boundary of the lot and common property.

In terms of the deterioration of a rendered surface on the outside edge of a balcony, it is my view that in most cases, this area will form part of the common property for the scheme, and as a result, the body corporate has an obligation to maintain the area in a good condition.

At the inspection and meeting held on 4 September 2002, the Body Corporate Manager for the scheme further expressed the concern of the Body Corporate regarding obtaining an engineer’s report assessing the matters raised by this application. In the absence of an engineer’s report, I cannot eliminate the possibility that the cracked tiles, and bubbled paint are indicative of a structural problem.

However, at the meeting, the Body Corporate Manager on behalf of the Body Corporate and the Applicant came to an agreement that the Body Corporate would engage a person to carry out repairs to the tiles and the rendered surface at the expense of the Body Corporate. In the circumstances, and subject to the following, I am satisfied that it is reasonable in the circumstances that I make an order formalising this agreement between the parties.

I wish to make it very clear, and to emphasise to all owners that the Body Corporate has a duty to maintain the balcony in a structurally sound condition, and further, the Body Corporate has a clear duty to ensure the integrity of the balcony railing is maintained. If in the course of repairing the tiles and render it becomes evident that a structural problem is in existence, the Body Corporate is obliged to take all reasonable and necessary steps to address the problem in accordance with its maintenance responsibilities. Further, if after the repairs are completed, the problems experienced by the Applicant arise again, it is my view that the Body Corporate should investigate the matter thoroughly, including by obtaining professional advice, before making any decisions on the appropriate method of repair or rectification.

In any event, while I do not intend to order the Body Corporate to obtain an engineer’s report, I would suggest that it may be prudent for the Body Corporate, particularly in light of the fact that at least one other lot is experiencing similar problems as the applicant, to obtain professional qualified advice on the matter.

If problems arise again after the repairs are completed, or if new maintenance issues arise, and the Body Corporate cannot agree on how to proceed, the Applicant, or another lot owner would be entitled to make a further dispute resolution outlining the circumstances, and seeking a determination of the matter.