Barrington Place [2004] QBCCMCmr 350 (9 July 2004)

Last Updated: 30 September 2005

REFERENCE: 0006-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19958
Name of Scheme:	Barrington Place
Address of Scheme:	18 Bottlewood Court BURLEIGH WATERS QLD 4220

TAKE NOTICE that pursuant to an application made under the abovementioned Act by John Hitches, the Owner(s) of lot 4

I hereby declare that there is no valid resolution authorising the painting of the front fences and gates of lots in Barrington Place.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0006-2004

"Barrington Place" CTS 19958

Application

Barrington Place Community Titles Scheme (Barrington Place) is a 29 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This application is by John Hitches, the owner of lot 4 (applicant) seeking orders against the body corporate for Barrington Place (respondent).

Background

The plan for Barrington Place shows two rows of lots separated by a large area of common property that presumably contains the driveway used by owners to access their lots.

Based on the submissions and photographs provided, it appears that most lot owners have erected fences around their lots. These fences are constructed from untreated pine.

The applicant is seeking a number of declarations about responsibility for erecting and maintaining fences around lots.

The applicant is also seeking resolution of a dispute about the painting of the fences. The applicant is seeking to stop the body corporate from painting the front of the fences that separate the common property from owners’ lots.

Decision

Maintenance of fences

The applicant is seeking declarations about who is responsible for erecting and maintaining fences in Barrington Place. Because the fences are on the boundaries of lots, responsibilities are defined under the Dividing Fences Act 1953. The Dividing Fences Act 1953 sets out a scheme for one owner to require the owner of an adjoining lot to contribute to the costs of building and maintaining a dividing fence.

The Body Corporate and Community Management Act 1997 is relevant to determining responsibility for building and maintaining dividing fences to the extent that it clarifies which persons are considered adjoining owners under the Dividing Fences Act 1953. Adjoining owners under the Dividing Fences Act 1953 will normally be jointly liable for the costs of erecting and maintaining a fence unless they have agreed on some other arrangement.

The three common situations are as follows:

1. The body corporate is taken to be the adjoining owner in respect of fencing around the outside of the scheme land (Act, 311(1)). The body corporate will normally be equally responsible for fencing the outside of the scheme land with whichever person owns the land on the other side of the fence in question. However, if the land on the other side of the fence is council land then the body corporate would be solely responsible for the fence;
2. Owners of adjoining lots included within the scheme are taken to be adjoining owners for the purposes of dividing fences (Act, 311(3)). Therefore, these owners will normally be jointly responsible for fencing between their lots; and
3. Similarly, fencing between common property and lots included within the scheme will normally be the joint responsibility of the body corporate (which is responsible for administering the common property owned by all owners as tenants in common) and the particular owner who owns the lot on the other side of the part of the fence in question.

It is necessary to consider the Dividing Fences Act 1953 and any agreements about fence maintenance. However, assuming the usual situation that adjoining owners are equally responsible for erecting and maintaining a suitable fence, section 311 of the Body Corporate and Community Management Act 1997 would mean that:

1. The applicant’s northern fence bounds the applicant’s lot and the common property. The applicant and the body corporate would be equally responsible for this fencing;
2. The applicant’s southern fence is an external boundary for the scheme and would be the responsibility of the body corporate and any adjoining owner outside the scheme (although, it appears this fence bounds council land so would be the sole responsibility of the body corporate);
3. The applicant’s eastern fence is the boundary between two lots within the scheme. It would be the equal responsibility of the applicant and the owner of the adjacent lot 5; and
4. The applicant’s western fence is the boundary between two lots within the scheme. It would be the equal responsibility of the applicant and the owner of the adjacent lot 3.

The above summary may help resolve some of the applicant’s queries. However, it does not resolve the present dispute. The present dispute results from the applicant’s concerns that the body corporate has not followed proper internal procedures under the Body Corporate and Community Management Act 1997 in making the decision to paint the side of the fences facing the common property.

Proper procedures for decision making

A body corporate cannot delegate its powers (Act, 97). Decisions of the body corporate must be made either by the committee or, if necessary, by the body corporate in general meeting (Standard Module, 26).

If a committee meeting is to be held then notice of the meeting must be given (Standard Module, 28), owners can request to attend the meeting (Standard Module, 32B), and, within 21 days, minutes must be provided to lot owners giving details of each committee resolution (Standard Module, 36). Most committee resolutions cannot be acted upon for 7 days after notice of the resolution is given to owners, and owners can overturn those committee resolutions by providing the committee with a notice of opposition within that 7 day period (Standard Module, 37).

In this instance, the submissions indicate that the body corporate committee has not followed the proper procedures and that there is no valid resolution to paint all front fences of lots in Barrington Place. The only information initially provided to owners was a letter from the body corporate manager stating that the committee has "decided that all front fences will be repainted to help update the appearance of the complex. This will be done progressively and at minimal cost to the body corporate." No record of a committee meeting or any resolution of the committee was supplied.

Subsequently, the body corporate manager has said that the matter was discussed at the annual general meeting and it was agreed that the committee finalise all issues to do with the painting of the fences and advise owners by letter of the intended course of action. This statement is disputed by the applicant and by another owner who was present at the meeting. In any event, no proper resolution was passed either at the general meeting or in committee meeting. Therefore, there is no valid resolution authorising the painting.

Owners have since raised concerns about the desirability of painting the fence, the likelihood that a painted fence would require regular maintenance or repainting, the actual estimated cost of painting the fence, who will paint the fence, and the colour and type of paint to be used. It would be prudent for any future resolution to address these uncertainties. In particular, for there to be proper authority to expend body corporate funds, the resolution should set out the actual amount authorised to be expended or at least an upper estimate. Also, given the significant opposition to the proposal, it would be prudent if any future resolution was put before a general meeting in order to properly gauge the preferences of the majority of owners.

Request for reimbursement of costs

The applicant states that he is a pensioner and he has requested reimbursement for costs related to the application in the amount of $70. He says that he has expended in excess of this amount in lodging the application, and in incidental costs of printing documents, postage, telephone calls and obtaining copies of submissions.

This order is made pursuant to the dispute resolution processes under the Act, which are designed to assist in the low cost resolution of body corporate disputes. There is no provision authorising a departmental adjudicator to make a costs order in these circumstances. The specific power for a departmental adjudicator to grant payment of costs is limited to circumstances where the application is dismissed as being frivolous, vexatious, misconceived or without substance (Act, 270).

Order

For these reasons, I make the order above.