Rambling Rose [2005] QBCCMCmr 705 (14 December 2005)

TAKE NOTICE that pursuant to an application made under the abovementioned Act by the body corporate for Rambling Rose community titles scheme 1560

I hereby order that within one month of the date of this order, Melvyn O’Flaherty, the owner of Lot 1 must submit a motion or motions to the body corporate for Rambling Rose community titles scheme 1560 to request body corporate authorisation under the Body Corporate and Community Management (Standard Module) Regulation 1997 for the construction of the wooden fence on common property adjacent to Lot 1 and for the installation of the garage door on common property on or adjacent to a part of common property allocated for the exclusive use of the occupier of Lot 1.

I further order that provided the Melvyn O’Flaherty submits a motion or motion in accordance with this order, the body corporate must, within three months of the date of this order, call and convene a general meeting in accordance with the Body Corporate and Community Management Act 1997 and the Standard Module to consider the motion or motions submitted by the respondent.

I further order that within four months of the date of this order, Melvyn O’Flaherty must remove:

1. The wooden fence from common property if he does not submit a motion to the body corporate in accordance with the terms of this order; or the body corporate does not, at the general meeting held in accordance with this order, authorise his request to approve the construction of the fence on common property.
2. The garage door from common property if he does not submit a motion to the body corporate in accordance with the terms of this order; or the body corporate does not, at the general meeting held in accordance with this order, authorise his request to approve the installation of the garage door on common property.

I further order that the agenda for the general meeting may include any other motion submitted in accordance with the Standard Module.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0612-2005

"Rambling Rose" CTS 1560

APPLICATION

This application is by the body corporate (applicant) against Melvyn O’Flaherty, the owner of Lot 1 (respondent). The applicant is seeking the following outcome, quote:

The owner of Lot 1 is required to remove structures installed on the common property without body corporate approval as required under s114 of the Body Corporate & Community Management Act (Standard Module Regulation) 1997 namely:

If the owner fails to do so within a reasonable period of time the body corporate may remove the subject garage door and fences at the owner's expense as permitted under s121 of the standard module regulations.

JURISDICTION

"Rambling Rose" Community Titles Scheme 1560 is a scheme under the Body Corporate and Community Management Act 1997 (Act) and the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

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:

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

In accordance with the Act, submissions were called and a copy of the application was provided to the respondent and to the body corporate manager for distribution to the owner of each lot (excluding the respondent). A submission was received from the respondent and a number of lot owners.

DETERMINATION

The body corporate submits that the respondent, in June 2004 started to make the following alterations to and adjacent to Lot 1:

The body corporate submits that the respondent also installed a garage door on common property. The body corporate contends that the respondent has made these alterations without the approval of the body corporate; has created exclusive use of the common property; and has impeded access to water pipes and waste drains. While the body corporate has mentioned a number of alterations to common property claimed to have been made by the respondent, the body corporate only seeks an outcome in relation to the garage door and the fences.

The respondent submitted that when he purchased Lot 1 in July 2004, he considered that the property was badly neglected and in need of maintenance. He therefore decided to renovate the property at his own expense. The respondent provided photographs of the land before and after alterations had been made.

"Rambling Rose" was established by the registration of Building Units Plan 70052 on 7 February 1977. With the commencement of the Act on 13 July 1997, a building units plan is now classified as a building format plan of subdivision under the Land Title Act 1994. A building format plan defines land using the structural elements of a building, including, for example, floors, walls and ceilings^[1]. Section 49C of the Land Titles Act 1994 provides that except to the extent permitted under directions of the registrar about the required format for a building format plan of subdivision, the boundary of a lot created under the plan, and separated from another lot or common property by a floor, wall or ceiling, must be located at the centre of the floor, wall or ceiling.

As the parts of scheme land outside each lot is common property, it is evident that the fence shown in the photographs provided by the respondent is on common property. In addition, the community management statement for the scheme indicates that garage door has been installed on or adjacent to a part of the common property allocated by By-Law 17 for the exclusive use of the occupier of Lot 1. Section 35 of the Act provides that owners own the common property as tenants in common which gives each owner a general proprietary right to use the common property. Sections 94 and 152 of the Act provide that the body corporate administers, manages and controls the common property. Section 109(1) of the Standard Module provides that the body corporate must maintain the common property in good condition. A lot owner does not have a right to carry out work on the common property unless authorised by the body corporate in accordance with the legislation or a body corporate by-law.

It is evident that the respondent did not seek, and has not obtained any authorisation from the body corporate before carrying out the disputed work to the common property.

Fences adjacent to Lot 1
The fence is on a part of the common property which, based on the photographs provided by the respondent, is adjacent to Lot 1. This part of common property is not subject to an exclusive use by-law.

The respondent has submitted that the fence replaced a "broken and unrepairable" fence. However, Dieter and Dagmar Telburn submit that there has not been a fence on this area. While there may be dispute about the existence of a fence, it is clear that the respondent did not have a right to construct the new fence. An existing fence should have been maintained by the body corporate unless the fence had, with body corporate approval, been constructed by a lot owner. If there was not a fence, the owner should only have constructed a fence with the approval of the body corporate in accordance with section 114 of the Standard Module.

Section 114 of the Standard Module states, quote:

(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--

(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.

(b) must maintain the improvement made under the authority in good condition, unless excused by the body corporate.

While the committee are opposed to the fence, it is not clear that the lot owners have a similar opinion. Therefore, I consider that this matter requires determination in general meeting. The respondent claims that an existing mesh fence was replaced. This is disputed by another lot owner and given that the fence has not been replaced with similar material and there is no specific right for the respondent to construct the fence, I am of the view that the fence could only have been constructed by the respondent with the proper authorisation of the body corporate under section 114. Consequently, I have ordered that the body corporate must give consideration to a request from the respondent seeking authorisation for the construction of the fence. If the body corporate does not give authorisation, the respondent must remove the fence.

I have noted the body corporate’s resolution at the Annual General Meeting dated14 October 2005 to allow fencing under certain conditions (Motion 13). In my view, this resolution is nothing more than a general position in relation to this issue, and an owner proposing to construct a fence on common property still requires specific authority of the body corporate in accordance with section 114 of the Standard Module.

When considering this issue, the body corporate will also need to consider the effect of a resolution to allow an owner to make an improvement to common property. While the body corporate can authorise an owner to make an improvement on common property for the benefit of the owner’s lot, there are limitations to the use of common property under only that authority. Where for example an owner wishes to install an air-conditioner by positioning it in a window where it overhangs common property, this is a valid use of the "improvement" provision as the encroachment onto common property is incidental, not of significant size, and is unlikely to interfere with another’s use of the common property. In contrast, body corporate authorisation under section 114 may not be sufficient authority where the effect of the improvement to common property is that part of the common property is alienated, is not insignificant and may or may not interfere with another’s use of the common property. In these circumstances, an "exclusive use" test may apply to require the owner to only hold that use under an exclusive use by-law.

Garage door
The photographs provided by the respondent show a white roller door at the entrance to the common property car space allocated for the exclusive use of Lot 1. The installation of the door is an improvement to common property. Given that the exclusive use by-law does not authorise the making of the improvement and as the door would appear to be on the exclusive use area, the respondent required body corporate authorisation pursuant to section 124(3) or (4) of the Standard Module which provide, quote:

(3) If the exclusive use by-law does not authorise the lot owner to make an improvement, the lot owner may make the improvement only if the body corporate authorises it to be made.

(4) However, if the value of the improvement mentioned in subsection (3) is more than $250, the making of the improvement must be authorised by a special resolution of the body corporate.

This authorisation has not been sought or obtained. Consequently, I have ordered that the body corporate must give consideration to a request from the respondent seeking authorisation for the installation of the garage door. If the body corporate does not give authorisation, the respondent must remove the garage door.

I have noted the body corporate’s resolution at the Annual General Meeting dated 14 October 2005 in relation to roller doors (Motion 17). However, I consider that this resolution is nothing more than a general position in relation to this issue, and an owner proposing to install a garage door on common property would still require specific authority of the body corporate.

Number of Scheme:	1560
Name of Scheme:	Rambling Rose
Address of Scheme:	9 - 11 Amphora Street PALM COVE QLD 4879

(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.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Rambling Rose [2005] QBCCMCmr 705 (14 December 2005)