Paradise Mews [2004] QBCCMCmr 499 (22 October 2004)

Number of Scheme:	3625
Name of Scheme:	Paradise Mews
Address of Scheme:	14 Paradise Street HIGHGATE HILL QLD 4101

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the Body Corporate for Paradise Mews

I hereby order that unless a motion seeking authorisation for the installation of the window mounted air conditioner currently installed in unit 7 without body corporate authority is -

a) received and included on the agenda of the forthcoming AGM; and
b) is duly carried (approved) by special resolution at such AGM, subject to conditions the body corporate might impose

the occupiers of lot 7, Margot and Elizabeth Morris shall, within two (2) weeks of the date of such meeting, remove the air conditioner installed without authorization, and reinstate the common property to its former state and condition of repair.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0332-2004

"Paradise Mews" CTS 3625

The applicant, the Body Corporate for Paradise Mews has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) quote –

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

(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 subdivision of 20 lots registered under a building unit plan (now a building format plan of subdivision). The regulatory module applying to the scheme is the standard module.

This dispute concerns the installation by the occupiers of lot / unit 7, Margot and Elizabeth Morris (Morris) of a window mounted air conditioner without first obtaining the approval of the body corporate in general meeting.

Briefly, the installation involves common property and is an improvement for the benefit of a lot. As such, it is governed by the provisions of section 114 of the standard module which provides –

114 Improvements to common property by lot owner--Act, s 159
(1) The body corporate may, if asked by the owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
(2) The improvement must be authorised by special resolution of the body corporate unless--
(a) the improvement is a minor improvement; and
(b) the improvement does not detract from the appearance of any lot included in, or common property for, the scheme; and
(c) the body corporate is satisfied that use and enjoyment of the authorised improvement is not likely to promote a breach of the owner’s duties as an occupier.
(3) An authorisation may be given under this section on conditions the body corporate considers appropriate.
(4) The owner of a lot who is given an authority under this section42--
(a) must comply with conditions of the authority; and
(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

The air conditioner is not a minor improvement as it has an installed value of more that $250.

Whilst there are matters raised by Morris which will be considered, I will say at the outset that the approach of the body corporate and its manager to this dispute has been prompt and correct, both in terms of the applicable law, and the approach taken. In contrast, the actions of Morris’s letting agent were incorrect. Letting agents have no authority whatsoever to grant any approvals associated with the body corporate. Letting agents would and should know this. Perhaps if Morris is considering issues of responsibility / compensation in connection with this matter, the letting agent would be an appropriate place to start.

The approval given by the letting agent is invalid and of no effect. It is in no way binding on the body corporate. The fact that Morris "acted in good faith" and appears to have genuinely made endeavours to resolve this dispute is not a reason to allow Morris to retain the air conditioner. The body corporate, and owners generally are entitled to require that correct procedures are followed and that correct approvals are obtained. Moreover, it is not relevant to me at this stage that Morris alleges that "two other similar window mounted air conditioner were already in place". The question here is that the requisition approval was not obtained. In the absence of any evidence to the contrary, it is assumed that these units have the requisite approval. Considerations involving other air conditioners installed may be relevant to an application where it is alleged that body corporate approval is being unreasonably withheld, but not to an application where no, or improper, authorization was obtained.

In the circumstances, I intend to order that Morris remove the air conditioner installed without requisite authorization, and reinstate the common property to its former state and condition of repair. However, in the circumstances, I intend to order that this order not be implemented or carried out by Morris unless and until the forthcoming AGM is held in January. This is so for a number of reasons including –

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Paradise Mews [2004] QBCCMCmr 499 (22 October 2004)