Fairway Gardens [2005] QBCCMCmr 440 (10 August 2005)

Last Updated: 30 September 2005

REFERENCE: 0183-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	17021
Name of Scheme:	Fairway Gardens
Address of Scheme:	28 Dalton Drive MAROOCHYDORE QLD 4558

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

The Body Corporate of Fairway Gardens CTS 17021 -

I hereby order that Melanie Gilder, occupier of Lot 9, within 2 weeks of the date of this order must cease parking a vehicle on common property or allowing her guests or visitors to park on common property, other than in the designated areas for the use of bona fide visitors as explained in the statement of reasons.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0183-2005

"Fairway Gardens" CTS 17021

THE APPLICATION

This is an application dated 1st March 2005 by the body corporate for Fairway Gardens CTS (the applicant) against Melanie Gilder, (Ms Gilder) occupier of Lot 9, concerning a breach of one of the scheme by-laws. The body corporate wishes to stop Ms Gilder from parking or allowing visitors to park on common property

The body corporate issued Ms Gilder with a continuing contravention notice (BCCM Form 10) on 1st October 2004 in which it quoted its By-law 2 as follows:-

2 Vehicles
(1) The occupier of a lot must not, without the Body Corporate’s written approval –
(a) park a vehicle or allow a vehicle to stand, on the common property; or

(b) permit an invitee to park a vehicle, or allow a vehicle to stand, on common property.

(2) An approval under subsection (1) must state the period for which it is given.

(3) However, the Body Corporate may cancel the approval by giving 7 days written notice to the occupier

On 18th October 2004, the Committee resolved at a meeting to ask the body corporate manager to make an application to this office as Ms Gilder had not complied with the contravention notice.

The respondent does not deny that she parks on common property and is therefore in breach of the by-law. She says that she is discriminated against and that everyone else does the same including members of the committee, and that she will continue to do so until they also cease to do so.


JURISDICTION

"Fairway Gardens" CTS 17021 is a community titles scheme under the Body Corporate and Community Management Act 1997 and the Body Corporate and Community Management ((Standard Module) Regulation 1997.

There are 25 lots in the scheme, created under a Building Unit Plan of subdivision.

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)).

SUBMISSIONS

Submissions were invited from all 25 lot owners in accordance with section 243(2)(b) of the Act, and the occupier of Lot 9, the respondent Ms Gilder.

Ms Gilder, who has lived in the complex for 7 years, says that there is a car parking problem which has gone on for some time, and in support, she has sent in her submission copies of various letters written to the body corporate manager for the scheme, and the owner of Lot 9. The letters are dated mainly between January 2002 and May 2002, one letter dated 15th January 2002 stating: -

"I feel that the issue of parking will never be solved until owners and members of the committee show a good example."

She also says that since the application was lodged she has tried to discuss parking with the chairperson Alison Quirke on 20th March 2005, but that the chairperson did not want to discuss the problem.

The owners of Lot 9, state that Ms Gilder is a good tenant, which is not a matter in dispute. Both the lot owners and Ms Gilder rather curiously say that they have nominated Ms Gilder as a committee member but do not say how this came about.

Unfortunately, as a tenant, Ms Gilder is not eligible by law to be a member of the committee unless she is a family member or a lot owner authorises her to act under the authority of a power of attorney.

Section 10 states as follows:-
10 Eligibility for committee membership
(1) A person is eligible to be a voting member of the committee if the
person is an individual nominated for membership of the committee by a
member of the body corporate (the "nominating entity") and is also--
(a) a member of the body corporate; or
(b) a person of a following category--

(i) if the nominating entity is an individual--

(A) a member of the individual’s family; or
(B) a person acting under the authority of a power of
attorney given by the individual;

(ii) if the nominating entity is a corporation--a director,
secretary or other nominee of the corporation;
(iii) if the nominating entity is the body corporate for a

subsidiary scheme in a layered arrangement of community
titles schemes--a representative of the subsidiary scheme.

(2) .................
(5) In this section--
"family", of a nominating entity who is an individual, means the following
persons--

(a) the individual’s spouse;
(b) each of the children of the individual or the individual’s spouse
who is 18 years or more, including a step child or an adopted
child;
(c) each of the individual’s parents, including a step parent;
(d) a brother or sister of the individual.

If Ms Gilder holds a power of attorney from the owners of Lot 9, then her nomination should be put forward with other nominations for committee to be voted on at the annual general meeting.

Both the owners of Lot 9 and Ms Gilder say that she is "discriminated against" and there is some notion that the "owners" discriminate against the "tenants". Ms Gilder says that the chairperson regularly has visitors and friends parking on the common property, and that a previous chairman Bruce Lee had a more live-and-let-live attitude in that as long as parked cars did not inconvenience anyone, then the body corporate was not prepared to pursue it. In effect, Ms Gilder is saying that there has been previous acceptance of her breach of by-law by the body corporate.

On 15th January 2002 she writes:

- " Until I see committee members abide by their OWN rules I will continue to do what I do"...

The only other submission comes from Mrs Beverly Cronshaw (Mrs Cronshaw), a lot owner and a member of the current committee, who says that Ms Gilder " at any one given time ... has 4 cars in this complex" belonging to family members. Mrs Cronshaw says that this causes difficulty for other occupiers.

Hers is the only mention that Ms Gilder’s breaching of the by-laws causes a problem to others. There is a significant lack of such information from the body corporate in its "grounds", and I note that in the letter dated 10th January 2003 from the body corporate manager to the letting agent, Vic Murphy Real Estate, complaining inter alia about Ms Gilder’s " continual parking within non-designated areas on common property" that no complaint is made about such parking causing inconvenience or obstruction to others. I also note that none of the other owners has lodged a submission against Ms Gilder’s continual parking practices.

Ms Gilder does not say whether she has requested permission to park any vehicles on common property such as is envisaged by the body corporate at By-law 2(2), or been refused such permission, but I am presuming not.


DETERMINATION

The problem appears to stem from the fact that in a complex of 25 lots, each lot has one lock up garage and there are only 8 visitor spaces, which are and must remain, spaces designated for the use of bona fide visitors only. It has been held on many occasions by this office that "visitors" means a genuine caller or temporary guest who visits the owner or occupier of a lot. A visitor is not entitled to park on any other part of the common property other than in the visitors’ bay. An owner or occupier is not entitled to park his or her own car, or allow a person from the household to park permanently or regularly in the visitors’ bay.

It seems that the common property starts directly outside the garage doors so that it is a breach of By-law 2 to allow a vehicle to stand outside the garage although there may be space for a vehicle to be parked there. Technically, of course, every time an owner or occupier stops outside the garage to open or close the garage doors for example, the by-law is breached.

It is a function of a body corporate under section 94(1) of the Act to enforce the by-laws for the scheme. Under section 94(2), the body corporate must act reasonably in enforcing its by- laws, so that the technical breach when a vehicle is stopped for convenience outside a garage door, should not trigger a contravention notice. Sections 182 to 188 of the Act make provision for the enforcement of body corporate by-laws by the body corporate and by individual lot owners and occupiers.

It is clear that the body corporate has brought the by-law contravention to Ms Gilder’s attention on a number of occasions over the years. The body corporate has also given her a " Notice of Continuing Contravention of a Body Corporate By-Law" dated 1st October 2004 giving her 7 days to cease the contravention.

An owner or occupier may also ask the committee to act to enforce its by-laws by completing a BCCM Form 1 (Notice to Body Corporate of Contravention of a By-Law) which forms are available on our website www.dtftwid.qld.gov.au/Dispute+Resolution/BCCM/ or from our Information Service on 1800 060 119. This form asks the body corporate to serve a by-law contravention notice on offenders. If the committee does not do so within 14 days, that owner or occupier may make a direct application to the Commissioner’s office for the contravention to cease.

I note that the body corporate has given Ms Gilder five months between the serving of the contravention notice and bringing this application to the Commissioner’s office. I am giving Ms Gilder two weeks in which to make alternative parking arrangements for her vehicle and any vehicle belonging to her family or guests. This could include housing the vehicle(s) on the lot, or in another place in a manner which does not contravene the by-laws or which is in accordance with the directions of the body corporate.

In future, Ms Gilder must not park or allow her visitors to park on common property (other than as bona fide visitors in the visitor parking bays). An order of an adjudicator may be enforced in the Magistrate’s Court and the penalties for breaching an adjudicator’s order can be severe (a maximum of 400 penalty points, currently set at $75 per penalty point).

It would seem that other owners and occupiers are similarly parking on the common property, possibly in contravention of By-law 2. The body corporate has taken an action against one occupier, and if the body corporate complies with its obligation to act reasonably, it must also act in a similar manner against other owners or occupiers who are similarly breaching By-Law 2.

Therefore, if it hasn’t already occurred, other owners and occupiers should be made aware of their obligations and be required to comply with By-law 2.