University Square North [2004] QBCCMCmr 557 (12 November 2004)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Homerent Pty Ltd as representative of the owners of lots 17 (Helen & Walter Krechkin) and 18 (Funcorp Holdings Pty Ltd)

I hereby order that the application by Homerent Pty Ltd as representative of the owners of lots 17 (Helen & Walter Krechkin) and 18 (Funcorp Holdings Pty Ltd) for orders, quote –

1. That the owners are not entitled to the use of all the common area in the garage area and that they are not entitled to charge the tenants for use of the said spaces. That the signs posted on the wall are removed.
2. A copy of the house rules is provided to the owners and or owner’s agent free of charge as to comply with the Residential Services Act.
3. That items relating to body corporate issues such as the installation of bulk electrictity and the PABX Telephone System go through the correct channels and be approved by body corporate accordingly the owners are not to be contacted regarding these items and other issues through the correct channels. All remuneration paid to Ms Cai and Mr Huang is disclosed by these services.
4. That the complex is not currently secure as commercial businesses are currently parking in the garage and walking through the common areas. That the business relinquish all access to the garage and the common areas and the locks be changed and charged to the owners of lot 26 Mr Haung and Ms Cai for allowing such breaches of security to occur. Copies of keys to be forwarded to the tenants and to homerent Pty Ltd;

is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0394-2004

"University Square North" CTS 29834

The applicant, Homerent Pty Ltd as representative of the owners of lots 17 (Helen & Walter Krechkin) and 18 (Funcorp Holdings Pty Ltd) has sought the following orders 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 34 lots recorded under a building format plan of subdivision. The regulation module applying to the scheme is the Accomodation Module.

The applicants are the owners of lots 17 and 18 in the scheme, and are disputing certain aspects. I intend to deal with each of these aspects in turn. I will add that the applicant’s grounds, even when additional supporting grounds was requested by this office, are scant. Consequently, given the applicants have not considered it necessary to detail their arguments in any real way, then I don’t consider it necessary to provide any significant detail in these reasons for my decision, beyond the basis thereof.

This office did seek submissions in respect of the application from all owners, the committee and the respondent managers. Two individual owners and the managers have chosen to respond.

I will deal with each of the four issues raised by the applicants in turn –

The car parking issue

The applicants state they "are wanting use of two (2) car parks ... and not to be charged the fee that has been introduced by the new on-site managers".

In the additional material the applicants state "The owners are of the understanding that all units come with the use of a car space. The owners of lot 26 are claiming that they have exclusive use of the car spaces and are entitled to charge any person who wishes to park their care there a fee".

The managers of the scheme (Kevin Huang and Junnie Cai) have submitted that the common property carparking spaces are allocated by way of exclusive use by-law (no. 37) and "as owners of lot 26 and on-site managers of University Square, we have exclusive right to majority of the car parking spaces".

I can confirm this. I can further confirm that all units do not come with use of a carpark, and that car parking spaces have been allocated to the owners of lots 1 to 10 and 26 only. The registered plan shows the level A car park as common property. By-law 37 allocates the exclusive use of the common property on this level between 11 lots, lot 26 (the manager’s lot) and the ten commercial lots (lots 1 to 10). The applicants should obtain a copy of the registered plan, and CMS for the scheme from the Department of Natural Resources (Registrar of Titles) to clarify these matters for themselves.

I am satisfied that the managers are entitled to the exclusive use of most of the car parking areas in the building on level A, and that the applicant’s are incorrect in their understanding of how the car parking spaces are allocated. The first order sought by the applicants is dismissed.

The house rules

The applicants seek a copy of the house rules be provided to owners free of charge so "as to comply with the Residential Services Act. "The current Residential Services Act states that the house rules are to be displayed in each unit. ... The house rules should also be lodged with body corporate and form a part of the ‘by-laws’".

The managers have responded that "we consider that Homerent’s demand on us to provide free copies of the house rules books is not acceptable to us. It was costly to print the books and Homerent should pay for the books or print/copy themselves".

I am not familiar with the requirements of the Residential Services Act. Moreover, this office does not enforce compliance with legislation other than the Act and associated modules. The applicants, if they consider their basis for objection to this aspect to be warranted, should contact whatever agency or government authority which administers the Residential Services Act. Moreover, there is no requirement in the Act for any "house rules" to be included with the by-laws. House rules have no status under the BCCM Act or regulation modules. If house rules are to be incorporated as by-laws, then the provisions of the Act for the incorporation of by-laws into the CMS should be followed. This order sought is dismissed.

"Items relating to body corporate issues"

The owners "require items relating to electricity / telephone lines to go through body corporate and not through the owners direct as they are currently doing". In their additional material, the applicants state "Items relating to the complex should be direct though body corporate and the owners should not try and organise items such as new phone systems and electrical items themselves as the matter should be brought before the body corporate".

With respect, I do not understand the applicant’s submission on these aspects.

The managers have responded that "we have sought the body corporate’s approvals for all projects we initiated. We also offered unit owners 17 and 18 the same opportunities to participate in all our projects. Participation is voluntary".

I can only assume that the applicants are referring to services offered by the managers as part of their management and letting business. It is usual for managers in such circumstances to offer to participating owners additional services, for example, laundry, letting, telephone and TV entertainment and the like. These are not services which the body corporate provides, but rather are services offered by managers at a fee to participating owners. I suggest that if the applicants do not wish to avail themselves or their tenants of these services, they should simply decline. This order sought is dismissed.

Commercial businesses are parking in the garage

The applicants state "Mr Huang and Ms Cai have allowed commercial businesses access to the common areas and the car park which has taken away the "secure" nature of the complex".

The managers have responded that "the commercial shop owners are entitled to exclusive use of 10 car park lots as specified in title documents ... . Commercial businesses are tenants of University Square and entitled to lease any car park available, but students always have priority in leasing a car park".

The owner of 3 of the commercial lots has responded that "there is one car space allocated to each commercial shop (totalling 10) by way of "exclusive use" and as such, we have no intention of giving up that right".

I can confirm that reference to the exclusive use by-laws shows that that lots 1 to 10 (presumably the 10 commercial lots) have been allocated exclusive use of one car space each. Again, it appears the applicants have misunderstood the allocation of car parking spaces to certain owners (in this case, the commercial owners or their tenants). There is no basis for the final order as sought and this order is dismissed.

Number of Scheme:	29834
Name of Scheme:	University Square North
Address of Scheme:	13 Tonga Place PARKWOOD QLD 4214

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

University Square North [2004] QBCCMCmr 557 (12 November 2004)