Glenefer Gardens [2005] QBCCMCmr 20 (12 January 2005)

Number of Scheme:	19942
Name of Scheme:	Glenefer Gardens
Address of Scheme:	30 Glenefer Street RUNCORN Q 4113

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

I hereby order that the application for an order that the Body Corporate pay to her the amount of $1,778 being the cost of termite treatment and the cost of rectifying damage to her dwelling caused by subterranean termites made up as follows:

• Drilling of holes in carport to inject termiticide $253
• Digging of trench along external walls of building $1210
• Initial inspection $99
• Follow up inspection $77
• Ken’s Maintenance (repair work) $139

Is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0526-2004

"Glenefer Gardens" CTS 19942

The applicant, Ms Allison, the owner of lot 2 is seeking an order that the Body Corporate pay to her the amount of $1,778 being the cost of termite treatment and the cost of rectifying damage to her dwelling caused by subterranean termites made up as follows:

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate, is a dispute which may be resolved under the dispute resolution provisions of the Act. As this is a dispute between lot owners and the body corporate, it is a dispute which may be resolved under the dispute resolution provisions 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

(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)).

Background

Glenefer Gardens CTS 19942 is a subdivision of approximately 100 lots on approximately 3.7 hectares, registered under a group title plan (now known as a standard format plan). The regulation module applying to the scheme is the accommodation module.

In October 2003 the applicant discovered that part of an internal door frame had been hollowed out and subsequently engaged a pest controller to undertake an inspection of her dwelling. The pest controller confirmed that subterranean termites had caused damage to the main bedroom door frame and lounge skirting board. This damage was subsequently repaired at a cost of $139 being $39 for materials and $100 for labour.

The pest controller produced a report indicating that evidence of termite damage had been found in the main bedroom door frame and lounge skirting board. The report also states that live insects were not located and that weep holes in the external brick walls were neither fully nor partly covered. The pest controller recommended that preventative measures be taken against subterranean termite infestation including the following measures:

On 3 October 2003 the applicant wrote to the body corporate as follows:

By virtue of the fact that the Body Corporate has the responsibility of the buildings in this complex, I request the payment of the inspection fee of $99 plus the termite treatment of $1638 be paid by the body corporate in the first instance. A separate request for payment of repairs will be made when a quote is available.

The body corporate declined this request and advised the applicant that owners should ensure their buildings are properly maintained and amongst other things, garden foliage and soil are prevented from accumulating against exterior walls.

The applicant responded as follows;

In the purchase contract I signed in 1992 there was a clause that I would not remove or cut any trees or shrubs in communal areas. Also Brisbane City Council regulations are that permission has to be sought by the relevant Body Corporate where gardens are planted on footpaths and the subsequent upkeep of them is also the responsibility of the body corporate.

A copy of by-law 3 was provided which states:

Except with the written permission of the committee a proprietor or occupier of a lot or his invitee shall not:

A copy of clause 5(g) of the Caretaking Agreement was also provided in which it was stated that the caretaker is to maintain in a weed free and litter free condition all lawns, rockeries, garden beds (with bark chip covered areas regularly raked and kept replenished) and other landscaped areas and where necessary prune trees and fertilise gardens and lawns.

Following further correspondence from the applicant, the body corporate responded as follows in a letter dated 19 February 2004:

The damage to lot 2 has not been caused by the condition of the common property, rather it is similar to damage through an act of nature.

Glenefer Gardens is essentially a land subdivision which occupies more than 3.7 hectares. At present there may be a number of termite colonies beneath the complex, each operating independent of the other.

Finally, in response to the application the body corporate submits as follows:

The committee vigorously counters Ms Allison’s claims and her case is fundamentally flawed... Glenefer Gardens is a land subdivision, not a block of units and no townhouse building is owned by the body corporate.

Ms Allison has assumed that termites originated from the common property. Further assuming that to be so, and she has failed to prove it, the body corporate did not place them there....

Then Ms Allison goes on to assume the Body Corporate placed bark chips up against her wall. Again she has failed to prove it....

Ms Allison appears convinced that the common property begins at the exterior walls of her townhouse but if that was correct the footings and eaves of the townhouse would be encroaching on common property. Any bark chips abutting the outside walls of her townhouse are on her land.

Determination

In order to recover the cost of repairing termite damage to her lot and the cost of termite eradication, the applicant would need to establish on the balance of probabilities that termites emanated from common property that the body corporate had failed to take measures to control known termite activity on common property.

The plan of subdivision for this scheme is a group title plan (now a standard format plan) which is significant in determining responsibility for termite prevention and repair. In contrast to a building format plan, which is the subdivision of a building where the body corporate retains significant maintenance responsibilities in respect of areas of common property such as the external walls of the buildings, a standard format plan is a subdivision of land. As a subdivision of land, the body corporate has limited obligations in respect of building maintenance.

In this instance the applicant’s dwelling is situated on a block of land owned by the applicant, described as lot 2 on Group Title Plan 3150, consisting of 201 square metres.

Section 108 of the Accommodation Module Regulation provides for the body corporate’s duty to maintain common property. Section 109 relevantly provides -

Duties of body corporate about common property Act,

The distinction to be drawn between the responsibilities of a body corporate for a standard format scheme and the responsibilities of a body corporate for a building format scheme are clearly set out in section 108. Sub-section 108(1) outlines the general obligations of a body corporate to maintain common property. Sub-section 108(2) goes on to extend the responsibilities of the body corporate for a building format scheme to a number of very specific areas.

In the context of this body corporate, created under a standard format plan of subdivision, the responsibility of the body corporate under section 108 is limited to the maintenance of common property. In contrast to a building format plan, where the boundary of a lot with common property is usually the centre of the floor, wall or ceiling, in the case of standard format plans, there is no such boundary line and the owner of a lot also owns the gardens and lawns which are located on those parts of the lot not covered by their dwelling. Further, the owner of a lot in a standard format plan, is also the owner of the area below the surface of the land.

The body corporate has a duty to maintain common property, and owners to maintain their lots (see section 119 of the accommodation module). The duty of the body corporate is to undertake adequate termite monitoring of common property, and if discovered, to ensure the eradication of termites from the common property. In my opinion, in order to recover the cost of repairing termite damage to her lot and the cost of termite eradication, the applicant would need to establish on the balance of probabilities that termites emanated from common property that the body corporate had failed to take measures to control known termite activity on common property.

In this case the applicant has failed to establish that the termites emanated from common property. Indeed the pest controllers report indicates that although termite damage was located, no live insects were found and no nest was located.

The removal of bark chips and foliage was recommended by the pest controller but I am unable to locate any reference in the report to this being the point of entry. In a building such as this, the means of entry from external gardens is often through weep holes in the external brick walls which have been covered with bark or foliage, yet the pest controllers report notes that weep holes in the external brick walls were neither fully nor partly covered. In any event, as this is a standard format plan of subdivision, the applicant is responsible for maintenance of the external walls and gardens contained on her lot.

The applicant’s contention that by- law 3 prevented her from removal of foliage or bark chips abutting her dwelling must be rejected. That by- law refers to damaging trees or gardens located on common property without the consent of the body corporate. It is more than likely that any foliage or debris abutting the walls of the applicant’s dwelling was in fact on her lot and not the common property. In any event, even if any such foliage or debris was located on common property, the applicant could have requested it’s removal or obtained the consent of the body corporate to the removal by her or a person engaged by her.

In light of the above I find that there is no ground upon which the applicant has a claim against the body corporate for the cost of termite eradication or the rectification of termite damage to the dwelling located on Lot 2. Similarly, I find that there is no ground upon which the body corporate is responsible for the cost of installing an external chemical barrier around the perimeter of the applicant’s dwelling.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Glenefer Gardens [2005] QBCCMCmr 20 (12 January 2005)