San Lucas Villas [2004] QBCCMCmr 498 (22 October 2004)

Last Updated: 30 September 2005

REFERENCE: 0635-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	28215
Name of Scheme:	San Lucas Villas
Address of Scheme:	14 - 16 Terrigal Street, SOUTHPORT QLD 4215

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

Ms Barbara-Joanne Hayward, the Owner(s) of lot 10

I hereby declare that the owner of lot 10, Barbara-Joanne Hayward (applicant) is responsible for the maintenance of the pergola covering part of her exclusive use area (including the pillars that support the pergola). I further declare, in relation to the fence surrounding the exclusive use area of lot 10, that 1. The body corporate is wholly responsible for maintaining sections of the fence that form part of the fence around the body corporate pool area (except for sections of the fence that have been modified at the request of the owner of lot 10); 2. The owner of lot 10 is wholly responsible for maintaining sections of the fence that have been modified at her request and are therefore improvements to the common property for the benefit of her lot; and 3. The owner of lot 10 is wholly responsible for maintaining sections of the fence that do not form part of the fence around the pool area and therefore are solely for the benefit of her lot to create her separate courtyard area. I further order that the proposed modifications to part of the fence surrounding the exclusive use area of lot 10 are to proceed on the following conditions: 1. The applicant is to, on or before 30 October 2004, have the gate repaired and have blue board installed to a height of 2100mm to replace the part of the fence adjacent to the applicant’s pergola. The blue board is to be painted or finished to a workmanlike standard within one month of installation; and 2. The body corporate is to pay $550 towards the cost of the modifications within 14 days of being provided with an invoice in that amount. This amount represents the amount that the body corporate was quoted if it were to repair the gate and install colorbond fencing to meet its pool fencing requirements.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0409-2004 & 0635-2004

"San Lucas Villas" CTS 28215

Application

San Lucas Villas Community Titles Scheme (San Lucas) is a 10 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module). The scheme is designed for residential purposes. Lot boundaries are designated under a building format plan.

This order relates to applications 409-2004 and 635-2004, both by Barbara-Joanne Hayward, owner of lot 10 (applicant) seeking orders against the body corporate (respondent). In application 409-2004, the applicant is seeking orders primarily about repairs and maintenance of a pergola on her exclusive use area. The applicant also raises other issues including proposed alterations to part of the fence around her exclusive use area. Parts of this fence form a boundary between the applicant’s exclusive use area and the body corporate swimming pool.

In application 635-2004, the applicant seeks urgent interim orders relating to matters in application 409-2004 due to the local government issuing the body corporate with a notice to properly fence the pool. As all owners have been given an opportunity to provide submissions in response to application 409-2004 and application 635-2004 does not raise any new issues then it is appropriate to make a final order disposing of both applications without waiting to seek further submissions from owners regarding application 635-2004.

Background

San Lucas was established on 19 June 2000. Lot 10 was owned by Michael and Kathleen Baker from July 2000 until March 2003. The applicant, Barbara-Joanne Hayward has owned lot 10 since March 2003.

Lot 10 has a courtyard area granted for the exclusive use of the occupiers of that lot. A pergola has been erected over part of this area. Material provided by the applicant indicates that she had concerns over the state of this pergola prior to her purchase of the lot being finalised. A property inspection report provided by Archicentre Limited states "Render cracking at junction at top of column and pergola rafters. Body corporate responsibility?", "Pergola members beginning to split. A visible sag has developed in part of pergola. Monitor for further deterioration. Body Corporate responsibility?", and "Slight horizontal cracks in the centre of masonry pergola posts. Monitor for further deterioration. Corners of lattice panels are opening up. Refixing required. Gate latch not in compliance with Australian standards for swimming pool safety. Gate binds. Adjustment required".

The applicant has said that $3,000 of the purchase price is being held in trust due to the defects in the pergola, and pending a determination of whether the original builder is liable to fix the pergola or compensate the applicant.

Submissions

The applicants’ main submissions were to the effect that the pergola is an original installation by the developer so comprises common property that the body corporate is responsible for maintaining. She says that a building inspection when she purchased the lot showed extensive splitting and sagging of pergola members and cracking of the columns. Further, a recent termite inspection found wood rot, sagging and splitting that indicate some danger that the pergola will collapse. The applicant says that she has been waiting for the body corporate to have the work carried out or to require the original builder to have the work carried out but nothing is happening.

Further, the applicant expresses concern about the body corporate proposal to use colorbond pool fencing and wishes to confirm that the body corporate agrees to her proposal to use fencing she considers more appropriate for the scheme. She has agreed to provide the additional funds necessary for her proposed modifications. The applicant also mentions some other concerns she has about the way in which the body corporate is being managed.

Other owners have provided submissions. These submissions are primarily to the effect that the applicant is responsible for maintaining her pergola and that she should use the $3,000 withheld from the purchase price for this purpose.

Decision

Applicable law

The legislation includes provisions to the effect that:

• Generally speaking, the body corporate must maintain common property in good condition (Standard Module, 109(1));
• Generally speaking, an owner of a lot must maintain their lot in a good condition (Standard Module, 120(3));
• Generally speaking, an owner of a lot must maintain in good condition improvements to the common property made for the benefit of their lot (Standard Module, 114); and
• Generally speaking, an owner of a lot must maintain their exclusive use area in good condition (Standard Module, 123(2)). However, foundation structures, roofing structures providing protection and essential supporting framework under a building format plan for structures that were not constructed by or for the lot owner must be maintained by the body corporate (Standard Module 109(2), 123(3)).

Maintenance of fences

The parties appear to assume that that the responsibility for maintenance of the fence surrounding the exclusive use area of lot 10 is shared between the body corporate and the owner of lot 10 as though the areas are two separate lots and maintenance responsibilities are governed by the default position under the Dividing Fences Act 1953.

However, the fence in question only separates common property of the body corporate from other common property of the body corporate, being the area of common property granted to the exclusive use of lot 10. Therefore, the Dividing Fences Act 1953 does not apply.

Under a building format plan of subdivision, the following principles will normally apply:

1. The body corporate will generally be responsible for maintenance of a fence that goes around the very outside border of scheme land, with this responsibility generally shared under the Dividing Fences Act 1953 with the registered owner of adjacent land outside the scheme (Act, 311). (However, there can be exceptions, for example, an owner within the scheme may be individually responsible for a fence they have put up along a small stretch of the scheme boundary if that fence is only for the benefit of their lot and does not operate as a dividing fence that separates the scheme land from land outside the scheme);
2. Maintenance of a fence that has been erected solely to create an exclusive use area for the benefit of a lot is generally the responsibility of the owner of that lot. This is because the fence is an improvement for the benefit of that lot (Standard Module, 114) or because maintenance of the fence comprises part of the owner’s responsibility for maintenance of and operating costs of the exclusive use area (Standard Module, 123); and
3. Maintenance of a fence that divides the exclusive use areas of two lots will be the responsibility of both owners of the lots that benefit from the fence.

In this instance, the usual situation is complicated because the fence around the applicant’s exclusive use area also partially operates as a fence around the body corporate pool area. The applicant has a responsibility to maintain her section of the fence in good condition but the body corporate also has a responsibility to fence the pool. In particular, the local council has warned the body corporate that maintenance of the fence in its existing form is insufficient and modifications are required to meet pool fencing requirements. The applicant has no responsibility under body corporate legislation to make modifications to this fence.

The body corporate could choose to erect a colorbond fence around the pool and leave the existing fence as the responsibility of the applicant. However, at the general meeting of 24 March 2004, the applicant obtained permission to increase the height and put cladding on both sides of a section of this fence for aesthetic reasons. It was agreed that the applicant would then take on responsibility for maintenance of this part of the fence, which adopts the standard position that an owner should be responsible for improvements to the common property made for the benefit of the lot (Standard Module, 114).

Having said this, the body corporate is presently responsible for ensuring the pool is fenced to an appropriate standard and maintaining that fence to an appropriate standard. I therefore consider it just and equitable that the body corporate should contribute the amount it would have spent to erect a colorbond fence past the relevant area and the applicant should take responsibility for the additional amount necessary to improve the fence as agreed.

Further, the body corporate should take sole responsibility for maintaining the sections of the fence that operate as a pool fence with the exception that the applicant is solely responsible for maintenance of the sections that are being improved by her. The applicant will also be solely responsible for maintaining the sections of the fence that are solely there to create her exclusive use area and do not operate as a pool fence (Standard Module, 123).

Ongoing maintenance of improved fence

The sections of fence that are being improved are for the benefit of lot 10. Therefore, any subsequent owner of lot 10 will need to maintain these sections of the fence as they comprise an improvement to common property for the benefit of the lot (Standard Module, 114).

To ensure any future owner has proper notice of this obligation, the body corporate should note that these sections comprise improvements for the benefit of lot 10 in the body corporate’s register of authorisations affecting the common property (Standard Module, 146(3)).

Finally, I note that if other occupiers cause damage to this fencing then the owner of lot 10 will still be required to repair the fence. However, the costs of these repairs can be sought from the occupier who caused the damage (Act, 281).

Maintenance of pergola

The applicant is also solely responsible for the maintenance of the pergola that is a feature covering part of her exclusive use area. The legislation provides that an exclusive use by-law is taken, in the absence of specific provision in the by-law, to make the owner of the lot to whom exclusive rights are given responsible for the maintenance of and operating costs for that part of the common property (Standard Module, 123).

An exception, effective since 1 December 2003, is that the owner of the lot under a building format plan is not responsible for structural maintenance of foundation structures, roofing structures providing protection, or essential supporting framework if the structure was not created by or for the lot owner (Standard Module, 123(3)). However, for the following reasons, I conclude that this exception does not apply.

Firstly, even though the pergola and its pillars were not created by the lot owner it appears they were created "for the lot owner" (Standard Module, 123(3)). No other lot gains any benefit from the pergola and the design of the pergola and its pillars was clearly to benefit the owner of lot 10. While the pillars also form part of the fence that separates this area from the pool, the only reason for having pillars rather than normal fence posts appears to be to create this pergola area for the exclusive use of lot 10.

In addition, at a teleconference between the parties, the applicant conceded that the pergola does not have any roof and is appears unsuited to the addition of any roof without significant structural improvements. The pergola is therefore not a "roofing structure providing protection" and is not the type of structure that the body corporate is required to perform structural maintenance of (Standard Module 123, 109). It is therefore the responsibility of the applicant to maintain this structure. It was argued that the pillars holding up the pergola comprise essential supporting framework that should be maintained in a structurally sound condition by the body corporate. However, in interpreting the words "essential supporting framework" in the context of the provision I have concluded that these words refer only to framework that supports a roofing structure that provides protection or, at least, supports some other part of the common property. In this instance, the pergola is merely a cosmetic addition to the exclusive use area and the pillars merely form part of this structure.

In summary, the applicant should maintain the pergola (including its pillars) as it is a cosmetic feature built for the benefit of the owner of lot 10. The explanatory note for the 1 December 2003 amendments to the regulation,^[1] supports this conclusion by indicating that the purpose of these amendments were merely to limit the liability of an owner with exclusive use having to maintain parts of the common property that exist for shelter and support for the general benefit of the scheme. This explanatory note states:

Section 123 provides that, unless an exclusive use by-law specifically provides otherwise, the owner to whom exclusive use of common property is given is responsible for the maintenance of that part of the common property. However, it is generally not appropriate that, in a building format scheme, this obligation to maintain common property applies to the maintenance of those parts of the common property that exist for shelter and support for the general benefit of the scheme, even if they are within the area that is the subject of the exclusive use by-law.

Because of this conclusion, the applicant has a current obligation to maintain the pergola and its pillars in good condition (Standard Module 120(2), 123(2)). While the applicant claims that the original builder should be liable to rectify problems with this pergola and the previous owner should be liable for failure to maintain the pergola and pillars in good condition, these claims to not absolve the applicant of her statutory responsibility to maintain the pergola. The applicant may, however, be able to seek compensation from the original builder and the previous owner. It would be prudent for the applicant to obtain her own independent legal advice in this regard.

Other matters

The applicant has also expressed concerns about the decision making processes of the body corporate. In particular, she says that she can sometimes have difficulty attending general meetings due to ill health. She questions the completeness and correctness of some minutes of meeting as well as the ability of the body corporate to make decisions regarding matters that were not listed on the voting paper.

I confirm that the legislation allows owners to be present at a general meeting merely by submitting a voting paper (Standard Module, 48). The body corporate cannot make any decisions in general meeting except as a vote on motions properly listed on the voting papers. If there is general discussion at a meeting and other issues are raised then the formal decision on those issues will need to be made either at the next committee meeting or at the next general meeting of the body corporate.

Committee meetings can consider matters not listed on the agenda for the meeting (Standard Module, 30(2)). However, proper notice of the committee meeting must still be given (Standard Module, 28). Ordinarily, 7 days’ notice is required and an agenda must be included (Standard Module 28, 30). Minutes of committee meetings must also be provided in accordance with the legislation (Standard Module, 36).

The applicant, as a committee member, has expressed concern about her ability to be included in all decisions regarding common property. For example, decisions about the planting of trees on common property. I accept that the applicant’s concerns in this respect are genuine and I encourage all owners to keep lines of communication open. However, at this stage, I am not satisfied that it is necessary to make any order in this respect.

Order

For these reasons, I make the order above.

^[1] Explanatory Notes for SL 2003 No. 263.