Snipe Court [2004] QBCCMCmr 119 (3 March 2004)

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

I hereby order that:

1. Within 1 month the owner of lot 2, Gertrud Sobania, and the owner of lot 1, Adele Emerson, are each to engage a licensed pest contractor to take reasonable steps to eradicate any termites in their respective lots and exclusive use areas (including the fence surrounding their exclusive use areas) and to guard against future termite damage to these areas. Each owner is to pay the costs of the licensed pest contractor in respect of their own lot and own exclusive use area;
2. Within 2 months, each owner is to present to the body corporate a letter from a licensed pest contractor certifying that they have taken reasonable steps to eradicate any termites in their respective lot and exclusive use area (including the fence surrounding their exclusive use area) and guard against future termite damage to this area;
3. Within 3 months, the owner of lot 2 is to replace the wooden paling fence surrounding her exclusive use area. The replacement fence is to be of a professional quality and, unless an alternative is approved by the body corporate, the replacement fence is to be of the type commonly referred to as a "Colorbond fence", is to be of a similar height to the existing fence and is to match the colour of the existing fence or the fence that divides the driveway area from the exclusive use area of lot 1.

I further declare that the owner of lot 2 is wholly responsible for the costs of maintaining the fences enclosing her exclusive use area and abutting Snipe Street and the common property driveway. However, the owner of lot 2 and the owner of lot 1 are jointly responsible for the costs of maintaining the section of fence dividing their exclusive use areas. Further, the owner of lot 1 is wholly responsible for the costs of maintaining the fence enclosing her exclusive use area and abutting the common property driveway.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0463-2003

"Snipe Court" CTS 7704

Snipe Court Community Titles Scheme (Snipe Court) is a 2 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes.

Lot boundaries are designated under a building units plan (now known as a building format plan).

This application is by the body corporate for Snipe Court (applicant) seeking orders against Gertrud Sobania (respondent). The applicant is seeking orders requiring the respondent to treat termites located within her exclusive use area and to replace the fence surrounding the exclusive use area.

Snipe Court is a duplex in Miami Waters. The original owner, Daniel Kleinig, registered the plan for the scheme in 1986. This registered plan is a building units plan that divides the building into two lots separated by a common wall. All of the land surrounding the building is common property.

This is different from the common situation for a duplex under a standard format plan (previously known as a group titles plan) under which the land itself is divided into two lots. A subdivision under a standard format plan gives each person ownership of the land that forms part of their lot and typically, the only land forming part of the common property will be a small area comprising a shared driveway.

Because Snipe Court was registered under a building units plan, each owner only owns the part of the building that comprises their respective lot. All the land surrounding the building is common property of the scheme. However, in 1987, the original owner registered an exclusive use by-law that gave each owner exclusive use of the common property around their lot. Only the driveway area was left for the shared use of both lots. The terms of this exclusive use by-law state "The proprietors for the time being of Lots 1 and 2 in the building shall be respectively entitled to the exclusive use for themselves, their transferees and their licensees of those parts of the common property which have been formed by separate dividing fences into respective private courtyards adjoining each Lot upon the condition that each proprietor shall be responsible for the proper maintenance and keeping in a good state of repair of the respective courtyard adjoining that proprietors Lot".

Due to this by-law, each owner has had exclusive use of the courtyard area surrounding their lot and has used this area of the common property as if it is their own lot. However, disputes have arisen between the owners about maintenance of the exclusive use areas. This application raises two issues related to maintenance. The first claim is that termites have been discovered on the scheme and the applicant seeks an order requiring the respondent to treat those termites. The second claim is that the fence surrounding the respondent’s exclusive use area is in poor condition because of decay and termite infestation. The applicant seeks an order requiring the respondent to replace this fence.

The body corporate’s main submissions were to the effect that the respondent has failed to comply with maintenance obligations and the exclusive use by-law by failing to eliminate termites and failing to keep the fence in good repair.

The respondent conceded that termites had attacked the fence and that it was in such a poor state of repair that it was not possible to nail palings back on when they had fallen off. The respondent also provided submissions that it was important to treat the termites and that the fence should be replaced with a metal fence. However, the respondent submitted that she had been to the Land Titles Office in Southport and been told that the fence is common property. The respondent therefore submits that the body corporate should pay the costs of replacing the fence.

The submissions and previous history of the scheme make it clear that the two owners in the scheme have difficulty communicating in a civil manner. If the parties are able to put their personal differences aside and work to administer the scheme in a practical and tolerant way then less disputes may occur. If not, it may become necessary to appoint a professional body corporate manager or administrator to the scheme at the shared cost of both owners.

Subject to limited exceptions, the body corporate is responsible for maintenance of the common property (Standard Module, 109(1)). The body corporate must administer, manage and control the common property reasonably and for the benefit of lot owners (Act, 152(1)).

Subject to other exceptions, the lot owner normally has the responsibility to maintain their own lot in good condition (Standard Module, 102(2)).

It is widely accepted that proper maintenance includes a responsibility to undertake reasonable pest control. Termites pose a risk to buildings throughout Queensland and termite control should be part of the maintenance considerations of all schemes. Typically, if a scheme is registered under a standard format plan then individual owners are responsible for inspecting their lots and undertaking any appropriate steps to control termites. On the other hand, if a scheme is registered under a building format plan then the land comprising the scheme is common property and the body corporate will normally be responsible for inspecting that common property and undertaking any appropriate steps to control termites. Of course, the lot owner should still be vigilant in detecting any early signs of termite damage and the lot owner still has the responsibility to ensure that they do not bring termites or borers into their lot in a piece of furniture.

Snipe Court is registered under a building units plan which would tend to indicate that it is the responsibility of the body corporate to control termites on the common property. However, the exclusive use by-law effectively transfers use and maintenance of the areas surrounding the building to the respective owners. This is because the exclusive use by-law allocates an area of the common property to each owner and places upon them an obligation of "proper maintenance and keeping in a good state of repair" of the area.

While exclusive use areas are technically common property, it is very common for an owner to have to maintain their own exclusive use area. In fact the legislation states that, unless specific provision for maintenance is made, lot owners must maintain their own exclusive use areas (Standard Module, 123(2)). This overrides the general requirement that the body corporate maintain common property (Act 173(b)). The exact statement in the legislation is "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" (Standard Module, 123(2)).

I therefore conclude that each owner is responsible for pest control in their own lot and exclusive use area. The body corporate is only responsible for pest control in the small driveway area that has not been allocated for the exclusive use of either owner.

The standard required for owners to maintain their own lots is maintenance "in good condition" (Standard Module, 120(2)). The standard required for owners to maintain their exclusive use areas is "proper maintenance and keeping in a good state of repair" (by-law 22).

To comply with these requirements, both owners should have been conducting regular termite inspections of their lots and exclusive use areas. It appears that this has not been done. The body corporate has brought this application seeking an order that the owner of lot 2 treat termites on her property. However, both lots are adjacent to each other and share a common wall. Effective termite control will require both owners to take action rather than only the owner of lot 2. Therefore, I consider that it is necessary for both owners to undertake termite control as part of their obligation to maintain their own lots and exclusive use areas. At this time, I will order that each owner must engage a licensed pest controller and take reasonable steps to eradicate any termites on their lot and exclusive use area, and guard against future termite damage to this area. Because this is part of each owner’s maintenance responsibilities, each owner is required to pay their own costs in doing this. It may be cheaper and more practical for both owners to obtain the services of the same licensed pest contractor and share the costs involved. If they choose to do this and the pest contractor provides a letter to the body corporate certifying that they have both taken the necessary steps then this will amount to compliance with the order.

The common property driveway is a relatively small area of the scheme that has not been allocated as part of either owner’s exclusive use area. If it appears necessary to treat this area then this is a body corporate responsibility that should be paid for from body corporate funds.

There have been a number of applications before this office in relation to the maintenance of the respondent’s fence. In application number 66 of 2001 the respondent was required to "within 3 months of the date of this order, and at her own expense, replace any missing palings in her courtyard fence" (Application 66-2001, 10 May 2001). The reasons provided with this order stated that "the fence enclosing the respondent’s exclusive use area and abutting Snipe Street has some palings missing from it. The exclusive use by-law requires each owner to be responsible for the proper maintenance of her respective courtyard area. I therefore propose to order that the respondent shall replace the missing palings in her courtyard fence within 3 months of the date of my order".

In application number 40 of 2002 the respondent sought to require the body corporate to repair part of the fence surrounding her exclusive use area. The adjudicator dismissed this application, referring to the earlier decision above that required her to replace the palings at her own cost (Application 40-2002, 9 May 2002). In application number 708 of 2002 the respondent again raised concerns about the state of repair of fences enclosing the common property. On that occasion the adjudicator again referred to the earlier decision and stated "the adjudicator made reference to the exclusive use by-law dealing with the courtyard, and noted that the by-law required the owner to properly maintain the area. On this basis, the adjudicator found that the maintenance of fences enclosing the courtyard areas in the responsibility of the owner enjoying the benefit of the exclusive use by-law. It seems to me that the fencing issue raised in this application has been largely addressed in the above order and statement of reasons. On this basis, it seems to me that ... [the owner of lot 2, Getrud Sobania] is responsible for the maintenance of the fences enclosing her courtyard and abutting Snipe Street and the common property driveway".

The respondent has therefore already been given very clear notice that she is responsible for the maintenance of the wooden paling fence enclosing her courtyard and abutting Snipe Street and the common property driveway. Any maintenance to this fence must be done at her own cost.

I do not propose to revisit this issue. However, to provide further clarification, I can confirm the owner of lot 1 has the sole responsibility for the maintenance of the fence that separates her exclusive use area from the shared driveway area. Any maintenance of this fence must be done at the cost of the owner of lot 1. Also, both owners are responsible for maintenance of the small section of fence that divides their exclusive use areas. Costs of maintenance of this section of fence should be shared equally.

The other fences in the scheme form the boundary between Snipe Court and neighbouring properties. These neighbouring properties will have a responsibility to contribute to the maintenance and repair of their boundary fences. Therefore, the parties should seek to agree with the owners of neighbouring properties on the costs of any maintenance required to these fences. If no agreement can be reached then application can be made to the Small Claims Tribunal or the Magistrates Court pursuant to the Dividing Fences Act 1953. This office does not have jurisdiction over disputes under the Dividing Fences Act.

The respondent submits that the Land Titles Office of Southport has advised her that the fence around her exclusive use area that borders Snipe Street and the common driveway area is common property. Because it is common property, the respondent considers that the body corporate should maintain the fence. Based on the plan, I agree that the fence is common property. However, even though the body corporate generally has a responsibility to maintain common property there are exceptions that require a lot owner to maintain parts of common property. For example, when an owner receives the benefit of an exclusive use by-law (Standard Module, 123(2)) or when improvements are made to the lot for the benefit of the lot owner (Standard Module, 114(4)).

The respondent has already had the benefit of a number of orders that confirm it is her responsibility to maintain this fence. If the respondent continues to refuse to accept responsibility for maintenance of the fence it would be appropriate for action to be taken in the Southport Magistrates Court to enforce this order (Act, 287).

The evidence of both parties is that following the order in May 2001 requiring the respondent to replace any missing palings in her courtyard fence the respondent endeavoured to replace the palings but found the fence rails were in such poor condition that the nails would not hold and the palings would fall off again. Eventually the respondent tied the palings on with string.

Subsequently, the respondent brought an application claiming that the fence needed substantial repairs and sought an order that the body corporate pay for those repairs. This part of the application was dismissed on the basis that it not the body corporate’s responsibility to pay for those repairs.

The respondent should have maintained the fence in a good state of repair but has failed in this obligation. Both parties have since expressed the view that the fence is in such poor condition that it should be replaced. An inspection of the fence confirmed this view. I am therefore prepared to order that the respondent must replace the fence.

Technically speaking, a replacement fence should be a close as possible in design to the fence it replaces. However, it is possible for the body corporate to approve a fence of a different design. Submissions on behalf of the respondent were to the effect that it would be better to replace the fence with a metal fence to avoid the risk of subsequent termite attack. When questioned about this, the other owner in the scheme indicated that a "colorbond" type fence would be suitable. This type of fence would meet the respondent’s requirements by not being subject to termite attack. I also note that this type of fence is well known, commonly used, and can be of a size, bulk and colour that is similar to the existing paling fence.

Because of the long history of disputes between the two owners in this scheme, I consider it preferable to make an order specifying the type of fence rather than risking potential disagreement at a body corporate meeting. I have therefore specified that the fence is to be of the type commonly referred to as "colorbond", is to be of a similar height to the existing fence and is to match the colour of the existing fence or the fence that divides the driveway area from the exclusive use area of lot 1. However, it is open to the owners to agree on some alternative specifications for the fence if they wish.

Number of Scheme:	7704
Name of Scheme:	Snipe Court
Address of Scheme:	17 Snipe Court MIAMI QLD 4220

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Snipe Court [2004] QBCCMCmr 119 (3 March 2004)