The Petals [2004] QBCCMCmr 609 (2 December 2004)

Last Updated: 30 September 2005

REFERENCE: 0554-2004

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	7666
Name of Scheme:	The Petals
Address of Scheme:	7 Rosewood Avenue BROADBEACH QLD 4218

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

Harold John Belch and Valerie Marian Belch, co-owners of lot 2

I hereby order that the cost of re-tiling the exclusive use area of lot 2 (including the application of a new waterproof membrane if the re-tiling damages the membrane) is the responsibility of the owners of lot 2.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0554-2004

"The Petals" CTS 7666

ORDER SOUGHT

The applicants, Harold John Belch and Valerie Marian Belch, have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

The adjudication of a dispute between the body corporate and applicants (owners) concerning responsibility for costs involved in repairing an area of courtyard deemed as a sole use area.

JURISDICTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).

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)).

SCHEME DETAILS

The Petals was established as a Community Titles Scheme upon registration of a building units (now described as a building format) plan of subdivision on 24 November 1986. The scheme comprises 5 lots and common property, and is regulated by the Body Corporate and Community Management (Small Schemes) Regulation 1997 (Small Schemes Module).

BACKGROUND

The applicants purchased their lot in May 2004 and after carrying out renovations, took up residence later that month. Shortly later, they became aware that the courtyard tiles in their exclusive use area which also cover the basement garage roof slab were loose and lifting due to expansion. The applicants are of the view that the work required to repair the tiles should be paid for by the body corporate, because the area provides part of the waterproofing membrane for the basement area. The body corporate chairperson has expressed a contrary view, based on the fact that the courtyard area is part of the common property which has been allocated to the exclusive use of the applicants.

All owners, the body corporate manager and the body corporate committee were invited to respond to the application. Submissions were received from all four remaining owners, one of whom is also the chairperson. The owners all opposed the application. The owners of one lot however stated that if all owners were agreeable, then perhaps the body corporate might replace the membrane under the tiles at its expense, and then the applicants would only have to pay for their own tiling.

DETERMINATION

Section 70 of the Small Schemes Module provides the framework which governs the duties of the body corporate about common property in the following terms:

70 Duties of body corporate about common property--Act, s 114

[SM, s 109]

(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is structural in

nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created under a

building format plan of subdivision, the body corporate must--

(a) maintain in good condition--

(i) railings, parapets and balustrades on (whether precisely, or

for all practical purposes) the boundary of a lot and

common property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common property; and

(iii) roofing membranes that are not common property but that

provide protection for lots or common property; and

(b) maintain the following elements of scheme land that are not

common property in a structurally sound condition--

(i) foundation structures;

(ii) roofing or other covering structures providing protection;

(iii) essential supporting framework, including load-bearing

walls.

(3) Despite anything in subsections (1) and (2)--

(a) the body corporate is not responsible for maintaining fixtures or

fittings installed by the occupier of a lot if they were installed for

the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility

infrastructure in good order and condition, to the extent that the

utility infrastructure--

(i) relates only to supplying utility services to a particular lot;

and

(ii) is 1 of the following types--

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service of a domestic

nature to a lot.

Examples for subsection (3)(b)--

1. An airconditioning plant is installed on the common property, but relates only to

supplying utility services to a particular lot. The owner of the lot would be

responsible for maintaining the airconditioning equipment.

2. A hot-water system is installed on the common property, but supplies water only to

a particular lot. The owner of the lot would be responsible for maintaining the

hot-water system and the associated pipes and wiring.

(4) To avoid doubt, it is declared that, despite an obligation the body

corporate may have under subsection (2) to maintain a part of a lot in good

condition or in a structurally sound condition, the body corporate is not

prevented from recovering an amount of damages from a person (whether

or not the owner of the lot) whose actions cause or contribute to damage or

deterioration of the part of the lot.

The applicants’ courtyard has been allocated to lot 2 under by-law 20(2), which provides:

As set out in Schedule E the proprietor for the time being of lots 1 and 2 shall be entitled to the exclusive use and enjoyment of the courtyard area being that part of the common property immediately adjacent to the eastern end opf the lot, the identifying number of which is shown in the plan attached hereto and marked "B" and which corresponds to the lot number entitled to the exclusive use and enjoyment of the courtyard.

By-law 20(3) provides for the maintenance of the area so allocated in the following terms:

Each proprietor shall be responsible for the care and maintenance of the area of which his lot has the exclusive use and enjoyment and benefit and shall at all times keep that area in a neat and tidy condition and so far as possible consistent with the other parts of the common property to be maintained by the other proprietors. (emphasis added)

I note from the material that the exclusive use courtyards were originally covered in artificial grass, but that over time, the owners of the lots to which the courtyards were allocated replaced the artificial grass with tiles, at their expense. In such circumstances, the maintenance/repair/replacement of those tiles would be done at the expense of the respective owners of the lots in question as required under the by-law.

The waterproof membrane covering the concrete slab of the courtyard (which forms the roof of and provides protection for the common property parking area of the scheme) is a separate and identifiable component, and is, of itself, capable of being repaired or replaced, depending on its condition. Such repair or replacement would ordinarily be at the cost of the body corporate, unless the membrane had been damaged or had deteriorated as a direct result of the actions of a lot owner, in which case the provisions of section 70(4) of the Small Schemes Module (set out above) would apply.

There is no evidence before me that the waterproof membrane has deteriorated or that it has been damaged. The applicants have not claimed that there are leaks in the basement, and several other owners have specifically denied that there are leaks. If however, as seems likely from the quotation dated 30 August 2004 from S & D Goodey Tiling, the removal of the existing tiles from the courtyard will damage the waterproof membrane, then the applicants must repair or replace it at their expense before retiling the courtyard.

I have ordered accordingly.