Fig Tree Cottages [2002] QBCCMCmr 91 (19 February 2002)

C G YOUNGREFERENCE: 0598-2001

ORDER OF AN ADJUDICATOR

MADE UNDER PART 10 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10393
Name of Scheme:	Fig Tree Cottages
Address of Scheme:	9-11 Walton Street SOUTHPORT QLD 4215

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

Janet Elizabeth MARLES, as the owner of Lot 1,


C G YOUNGI hereby order that –

1. the owner of Lot 2 has under By-law 22 the exclusive use of the northern half of the western garage area on common property, and the owner of Lot 1 has no rights in respect of that northern half of the area; and

2. the owners of Lots 1 and 2, unless they agree to the joint use of the western garage area as it is currently constructed, must share in equal portions the cost of the removal of the double garage door from the western garage area (which door shall remain the property of the owner of Lot 1), and the installation of whatever structures are reasonably necessary for the division of the area into separate garage spaces with separate entry doors.

I further order that –

3. Janet Elizabeth Marles, the current owner of Lot 1, has the personal use of the carport erected alongside the car space for Lot 3 for vehicle parking or general storage for so long as she remains the registered owner of Lot 1, but that it must be wholly maintained by her; and

4. upon the transfer of ownership in Lot 1 from Marles, whether by sale or other reason, she may, at her option, either dismantle and remove the whole of the carport from the scheme as her personal property, or abandon the whole of the carport when ownership passes to the body corporate as a body corporate asset.

I further order that the body corporate secretary must as soon as possible provide a copy of this order and the accompanying reasons to the owners of Lots 3 and 4.
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STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0598-2001

“Fig Tree Cottages” CTS 10393

This is the final order to an application by Janet Marles of Lot 1 who has sought the following order of an adjudicator under the Body Corporate and Community Management Act 1997 (“the Act”), quote -

“We are seeking resolution to the ownership and/or usage rights of the individual units to the garages and carports within the property. Five years ago I purchased Unit 1 and was told I also owned the double garage marked as Unit 1. This Unit 1 has been sold four times with the double garage & Unit 2 has been sold four times with a carport marked “2” since 1982.”

The applicant also sought the following interim order of an adjudicator -

“That the current car parking, garage & carport arrangements continue as they presently are, until this matter is resolved. This matter is urgent as the lawyers representing Unit 2 have stated their client will remove the garage door from Unit 1’s double garage and remove all items of property stored within after 2pm on Tuesday 16^th October 2001.”

On 15 October 2001 I issued the following Interim Order 598-2001 –

I hereby order that Harold Frank Goldsworthy and Yvonne Doreen Goldsworthy, the co-owners of Lot 2, must not take any step to obtain possession or occupy any part of the double garage situated on common property in the north-western corner of the scheme, now occupied and used by the owner of Lot 1, Janet Elizabeth Marles, pending determination of this application by final order.

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) of the Act). An adjudicator’s order may contain ancillary or consequential provisions the adjudicator considers necessary or appropriate (section 230(1) of the Act).

In the “Statement of Adjudicator’s Reasons for Decision” to the interim order, I gave a brief outline of the applicant’s grounds for retaining the use of the double garage she now uses, and I repeat that outline here –

“In the supporting grounds the applicant states that after the car spaces were originally allocated in 1982, and sometime before November 1984, an alternative arrangement was decided upon whereby the carports for Lots 1 and 2 both became garage spaces for the owner of Lot 1, and an additional carport was erected on common property for the use of the owner of Lot 2. The applicant states that this was at some cost to the owner of Lot 1 at the time. She states further that both Lots 1 and 2 have each been sold a number of times since under this arrangement. She states that her purchase price included a component in recognition of the double garage, and for the respondent owner of Lot 2, Harold Goldsworthy, to now want the original Lot 2 carport space returned, is inequitable. The applicant has submitted copies of some body corporate documents in support of her argument.”

One further document that I need to make reference to is an order made by a Delegate of a Referee (adjudicating under the then relevant legislation), Order 225-94, issued on 29 August 1994. The applicant was the owner of Lot 3, Ronald Warren, who sought an order for the garage arrangements to revert to the original configuration. The order was dismissed, though from my reading of the Reasons, that decision was based on the ground that the dispute solely concerned the owners of Lots 1 and 2 - the relevant extract of those Reasons, which also contains comments of relevance to this application, reads –

“I do not fully appreciate what the applicant is endeavouring to achieve with his application. As I understand the situation, if Lot 2 again uses the car parking area which is attached to it by virtue of the by-law, that will mean that the body corporate (and proprietors) storage area is lost and the car park presently occupied by Lot 2, which is adjacent to Lot 3’s car park, will then be unoccupied. In the circumstances, the order sought by the applicant will serve no useful purpose and I have therefore dismissed the application.”

The file documentation shows that, at that time in 1994, part of the “double garage” (now used wholly by the applicant as the owner of Lot 1) was used for body corporate purposes, namely the storage of body corporate gardening equipment, bags of concrete and some furniture belonging to the then owner of Lot 2 (Mrs Passlow) on a temporary basis. That use contrasts with the current situation where the applicant, since her purchase in 1996, has claimed and used the entire “double garage”.

“Fig Tree Cottages” was registered as a building units plan (now termed a “building format plan”) on 2 April 1982. The registered plan shows that originally the developer planned to register the car spaces as being parts of the respective lots, however at some time prior to registration the car space areas for Lots 1, 2 and 3 were deleted (by crossed lines on the plan) and the plan registered with only Lot 4 having a garage as part of lot property.

Following a resolution passed by the body corporate on 16 April 1982, a change in the body corporate by-laws was recorded on the registered plan by the Registrar of Titles on 10 May 1982. The changes included an additional by-law, By-law 22, which grants to the owners of Lots 1, 2 and 3 (I will refer to Lot 4 later) the exclusive use of the same areas of common property originally shown on the plan as being part of their respective lots. That is: in the western garage area (the “double garage”) Lot 2 has the top northern half, and Lot 1 the lower southern half; in the eastern garage area, Lot 3 has the western half.

The by-law also, wrongly, purports to grant exclusive use over the eastern half of the latter to the owner of Lot 4. I say wrongly because I have already explained that this car space area was not crossed out on the plan with the others. Consequently, when the plan was registered on 2 April 1982 this area became part of Lot 4, and was therefore never part of the common property for the body corporate to deal with by purporting to grant exclusive use over it.

It appears that the reason why the original purchaser of Lot 1 built the alternative car port for Lot 2 (alongside the car space for Lot 3), and assumed the use of the northern half of the western garage area from Lot 2, was to store some printing machinery pending the opening of a new printing business (which seemingly didn’t happen). He reportedly enclosed what was previously an open garage area, laid a fresh slab floor thus converting the western garage area to the present “double garage”. This must have taken place sometime prior to 1 November 1984 when a “Questionnaire” of owners records, amongst other things, the views of each owner regarding the garage/carport arrangement between the owners of Lots 1 and 2. Although named as a questionnaire, it appears to record a body corporate decision on the matter, being that the garage/carport arrangement was to “stand until either unit comes up for sale & any action to be the responsibility of both units”. The comments by the owner of Lot 4 are significant, “No cost by body corporate but as such arrangement has not been legally registered, the present situation could remain dormant until such time as the sale of either unit is imminent – bearing in mind By-laws 22, 23 and 24.”.

I also note in a submission to that previous application by Patricia Passlow, the then owner of Lot 2 and the body corporate secretary, that when ownership of Lot 1 passed from Mrs P Hayes to Mr I Richardson she (Passlow, as secretary disclosing information) had made known the “oddities of the parking arrangements” to Richardson’s solicitor and he had agreed that only a single car space belonged to Lot 1. It was at that time that the body corporate was using the other part of the western garage area for the storage of gardening equipment, etc. Passlow also submitted a copy of all meetings held prior to the Questionnaire and nowhere is there any mention of the arrangement between the owners of Lots 1 and 2, which of course included construction of a carport on an area of common property.

The respondent owner of Lot 2 since 5 October 2001, Harold Goldsworthy, had knowledge of the right of the owner of Lot 2 under By-law 22 to the exclusive use of the northern half of the western garage area, having been so informed by his solicitor, the vendor Hero, and another owner, Mr Warren of Lot 3. A body corporate meeting held on 16 September 2001 included a motion for the parking arrangements to revert to that provided for in By-law 22. I assume this decision was sought to facilitate the sale of Lot 2. The result of the decision was this application.

Goldsworthy dismisses the applicant’s claim that the price she paid for her unit included a component for the additional car space in the western garage area, on the grounds that she cannot prove this. He wants By-law 22 to be adhered to and the double garage door removed; the carport be dismantled and removed; and a Body Corporate Manager to be employed. The last point does not concern this application and shall be left to the owners to decide upon.

By- law 22 is quite clear in its grant of exclusive use over designated parts of the common property to the owners of Lots 1, 2 and 3 (I have already pointed out that the grant in respect of Lot 4 under the same by-law is void). Had the owners of Lots 1 and 2 when originally negotiating the agreement for Lot 1 to use the rest of the western garage area and Lot 2 to use a carport constructed by Lot 1, wished the arrangement to be a valid and permanent one, then they should have put a motion for a replacement by-law to reflect the sole grant of the area to Lot 1, and also sought a further grant in respect of the area of common property for the carport site. This was not done and By-law 22 remains unaffected.

I would agree with the applicant’s statement that her purchase price would have included a component for the extra garage space. However, she (through her solicitor at the time) should have been aware of the primacy of By-law 22 in respect to this extra space, despite the presence of the carport either being agreed to or tolerated by the body corporate since before 1984. She states that she only became aware of the real situation at the September 16 meeting. However, intending purchasers have rights to search the records of the body corporate and a search by her solicitor or herself at the time of purchase would have revealed the true nature of the exclusive use grants.

Section 223 of the Act provides that, in determining an application, adjudicators must consider the overarching principle that an order to resolve a dispute must be just and equitable in the circumstances.

Undoubtedly the grants under By-law 22 must apply and Goldsworthy be given possession of the area of the western garage area he is entitled too. However, in the circumstances I consider it equitable that he should share in the cost of the removal of the double garage door and any common installations that are necessary to facilitate the installation of individual garage doors, for example, a post separating the door areas, a separating wall, etc. The two owners will then each bear the individual cost of installing their own garage door. Alternatively, the two owners may wish to share the present double garage by having duplicate keys.

In regard to the carport alongside the car space for Lot 3, this is a difficult matter. It is apparent from the evidence of a long-standing and former owner, and the body corporate records available, that the body corporate did not formally approve the erection of the carport on common property, whether by license, or a grant of exclusive use. However it is equally true that the carport has remained with at least the acquiescence of the body corporate, for 17 years in total including the last 5 years when the applicant has been the owner.

I consider that the applicant should have some rights over the carport which was, after all, paid for and erected by the initial purchaser of Lot 1 in exchange for the Lot 2 car space which is now being denied her. The carport could be regarded as the personal property of that initial purchaser, though for the use of the owner of Lot 3 so long as the arrangement remained n existence, with ownership passing to subsequent owners of the lot. However, the carport is occupying an area of common property without the proper authorisation of the body corporate and that authorisation may not now be given if the matter were to be voted on by owners.

It is my decision that the most equitable outcome is for the carport to remain in space for the sole use of the applicant, Janet Marles, so long as she remains the registered owner of Lot 1. That is, upon her sale of the lot, or a change of ownership for other reasons, the rights of use under this order will not transfer to the incoming owner. Additionally, upon sale she may either dismantle and remove the carport as her own property, or alternatively leave it in place when ownership will pass to the body corporate. The body corporate may then wish to use it as a visitor’s car space, rent it to a tenant or owner, use it for storage, or remove it.

This office will be providing a copy of this order to both the owners of Lots 1 and 2, being the applicant and respondent in the matter. Because the order is of importance to all owners, I have further provided in the order that the secretary must provide a copy of it to the remaining owners of Lots 3 and 4.
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