The Francis [2004] QBCCMCmr 42 (22 January 2004)

Last Updated: 30 September 2005

REFERENCE: 0487-2003

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19833
Name of Scheme:	The Francis
Address of Scheme:	Cnr Kent & Richmond Street MARYBOROUGH QLD 4650

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Deborah Maureen Kinnaird, the owner of lot 4

I hereby order that the application for an order that within one (1) month of the date of this order, Kerry David Grennan, the owner of lot 1, shall remove from the common property the lattice gate / barrier structure he has installed on the upper level common property balcony and thereafter reinstate the common property to its former condition.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0487-2003

"The Francis" CTS 19833

The applicant, Deborah Maureen Kinnaird, the owner of lot 4 has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote -

That Kerry Grennan be required to remove a barrier he has erected across a balcony which is part of the common property. The barrier prevents access by the applicant to and from the applicant’s lot via a set of stairs leading to common property.

Section 276(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 contractual matter about-

(i) the engagement of a person as a body corporate manager or service contractor for a community titles scheme; or

(ii) the authorisation of a person as a letting agent for a community titles scheme.

An order may require a person to act, or prohibit a person from acting, in a way stated in the order (section 276(2)). An adjudicator's order may contain ancillary and consequential provisions the adjudicator considers necessary or appropriate (section 284(1)).

The scheme is a 4 lot subdivision registered under a group title plan of subdivision (now a standard format plan).

The applicant seeks the removal of a lattice wall containing a door secured by a chain and padlock (the structure) erected by the owner of lot 1, Kerry David Grennan, on the upper level common property balcony. The applicant states that the structure acts as a barrier preventing access to and from parts of the building including lot 4, and that the structure was erected without body corporate consent. The applicant then sets out how the structure affects access, and concludes that the respondent "has no right of exclusive use of the balcony located on the first level at the rear of lot 1". The applicant has attached a layout plan of the lot, indicating the location of the structure.

The respondent has made a submission stating as follows –

What is Ms Kinnaird about. We both have a lattice petition for security reasons. Ms Kinnaird has access through my section via a large door and key which she requested of my and was immediately given. Also she has other access. There is no fire department objection. They have inspected it. I am not aware of any corporate body. I purchased this property on group title.

For the benefit of the respondent, I will point out that he has purchased a lot in a group title plan (now a standard format plan) and as such is a member of a body corporate subject to all the rights and obligations contained in the Act and associated legislation, in particular, the Standard Module regulation.

As part of my investigation, I have checked the by-laws for the scheme to confirm that there is no exclusive use allocation of common property relevant to this dispute granted to the respondent. All lots have been granted certain car parking spaces by way of exclusive use. In addition, lots 1, 2, and 4 have been granted other exclusive use allocations, namely toilet facilities on either the ground or first floor of the building. In particular, the exclusive use allocations do not relate to or include the balcony area which has been sectioned off by the respondent.

The location and area where the respondent’s structure has been erected is a balcony and is common property of the scheme. No one owner has been granted exclusive use of this area of common property. The balcony and adjoining stairs is clearly capable of servicing the upper level of all lots.

The respondent’s allegation that the applicant has erected similar structures is not sustainable. The location of these structures is on the boundary of the applicant’s lot with common property, where the structure of the respondent is in the middle of common property, blocking a common property balcony. There is a significant difference. The fact that the applicant has been given a key to unlock the respondent’s structure is also not relevant in my view.

The fact is that as what the respondent has done amounts to an annexation of part of the common property, then he requires an exclusive use by-law to be created before this structure is authorised. An exclusive use by-law requires a resolution without dissent of the body corporate (see section 62 of the Act). Until such resolution is carried and a by-law recorded, the respondent’s structure is illegal. I intend to order that within one (1) month of the date of this order, the respondent is to remove the all parts of the structure from the common property and thereafter reinstate the common property to its former condition. I have ordered accordingly.