11 Esther [2005] QBCCMCmr 729 (23 December 2005)

Number of Scheme:	2954
Name of Scheme:	11 Esther
Address of Scheme:	11 Esther Place BUNDALL QLD 4217

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

I hereby order that the application for an order that the owner of lot 1 provide a termite barrier around lot 1 and clear overgrowth in the garden adjacent to lot 1, is dismissed.

I further order that no vehicles shall be permitted to be stored on the common property at any time.

I further order that the owners and occupiers of both lots shall not park vehicles on the common property at any time in such a manner as to obstruct access to each other’s garages.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0444-2005

"11 Esther" CTS 2954

ORDER SOUGHT

The applicants have sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

JURISIDCTION

The application evidences a dispute between an owner of a lot included in a community titles scheme and another owner of a lot included in the scheme (section 227(1)(a) 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)).

SCHEME DETAILS

11 Esther registered as a building units plan (now described as building format plan) on 5 April 1993. The scheme comprises 2 lots and common property and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

The applicants stated that they purchased their lot in June 2003. The applicants further stated that in May 2005 the tenant in lot 1 (the respondent’s lot) complained "to others" about termites and vermin. As a result, a pest inspection of lots 1 and 2, arranged by the applicants but with the agreement of the respondent, was carried out and a copy of the resultant report was attached to the application.

The applicants expressed concern about the fact that some interior walls and roof spaces in lot 1 could not be accessed by the pest inspector because of the excessive amount of personal belongings stored in various rooms.
They pointed out that termites were found in the grounds outside, and borer infestation was observed in trees adjacent to the building, as well as in fences. The applicants stated that they have had a termite barrier placed around their part of the building and now seek an order that the respondent do the same around his part of the building.

The applicants provided photographs of the grounds, which showed cars and car bodies standing on the common property, as well as overgrown garden areas and a large number of items stacked against the outside walls.

The respondent was provided with a copy of the application and invited to lodge a submission. A submission was received from him, as well as from his tenant. The applicants obtained copies of the submissions and lodged a reply.

I conducted two teleconferences with the parties. On 26 October 2005, both of the applicants and Mr McGregor participated. The discussion centred on the applicants’ perception of the termite problem. Mr Lion explained that even though the pest inspector had not found any evidence of termite activity inside the building during his inspection, the fact that he could not properly inspect some areas because of the proliferation of the tenants’ goods was causing them concern. In addition Mr Lion pointed out that the fire wall in the garage prevented a proper inspection from lot 2’s side to lot 1’s side, and he believed that if the termites were active on lot 1’s side, it would obviously impact on lot 2’s side eventually. Mr Lion stated that on the main building the roof over lot 1 was sagging in places, which made him all the more suspicious that there was termite activity in the roof support timbers. Mr Lion pointed out that the guttering was also damaged, and the downpipe at one end had come away from the gutter.

Mr McGregor requested time to obtain a report on the roof. It was decided that another teleconference should be held on 14 December 2005, and that in the meantime, Mr McGregor should obtain the report.

Two quotations for roof repairs were obtained by Mr McGregor’s managing agent, Ray White Southport, and faxed to the Commissioner’s office. Copies of the quotations were, in turn, provided to the applicants, prior to the resumed teleconference.

During the second teleconference, further discussion was held about the roof repairs outlined in the quotations (one of which had not yet reached Mr McGregor as it had only been faxed to the Commissioner’s office late on 13 December 2005, and was still in the post to Mr McGregor). Neither quotation referred to any termite activity, and instead related to the replacement of roof tiles and the fitting of a soaker course down the roof gables.

I advised the parties that as the scheme was established under a building format plan the responsibility for roof repairs and maintenance fell on to the body corporate. Both Mr Lion and Mr McGregor stated that they were quite happy with their present arrangement, which is that they each attend to whatever repairs and maintenance are required on their respective lots. I pointed out that such an arrangement was not in accordance with the legislation, and that it might present difficulties if either of them were to sell their lot, and encounter a prospective purchaser who may insist that the body corporate be placed on a proper legal footing.

I also advised the parties that I intended to speak with the contractors who had provided the quotations to obtain such further details as they may have had in relation to the general state of repair of the roof support timbers.

Mr Lion continued to express concern about the general state of the grounds, pointing out that there were a large number of trees and that it was generally untidy. He also advised that the car body of which he complained in the application had now been moved, and there were two working cars, belonging to Mr McGregor’s tenants, which were continually parked either in the driveway or beside the fence.
Mr Lion stated that his present tenant does not have a car, but that he is moving out in January 2006, and the next tenant may have a car, in which case the current arrangement would not be satisfactory.

I pointed out to both parties that the by-laws provide that no vehicle is permitted to park or stand on common property without the written consent of the body corporate. Both parties recognised that there would need to be some flexibility to allow for occasions when a tradesperson or a visitor might require access to the lots. Mr Lion stated that he would be agreeable to an order that prevented vehicles being parked permanently on common property. He then explained that this was intended to address the problems which arose if a car were to effectively be stored on the common property, as occurred when Mr McGregor’s tenants had a car body wrapped in a tarpaulin (as depicted in several of the photographs attached to the application).

On 20 December 2005 I telephoned Mr Brad Cooper, the principal of Brads Roofing Pty Ltd, in relation to his quotation dated 19 November 2005. Mr Cooper stated that in his view if termites were present in the roof support timbers he would have noticed a "different feel" to the roof when he walked over it during his inspection of the roof tiles. However, he said that when the damaged roof tiles were being replaced, whoever was doing the job would certainly notice if the roof support timbers were infested with termites. Mr Cooper further stated that if that occurred the job would have to be halted until the termites were eradicated, and the affected timbers replaced. Mr Cooper noted that the only way to be absolutely certain about the presence or otherwise of termites would be to have a pest inspector check the roof.

On 20 December 2005 I also telephoned Surefix Roofing Services Pty Ltd and spoke with Ms Teah Vassella. Ms Vassella advised me that the employee who had prepared the quotation dated 8 December 2005 had now left the company. However she offered to telephone him and enquire whether he had noticed any termite activity in the roof when he prepared the quotation. Ms Vassella subsequently advised me that the past employee had not needed to lift any tiles when preparing the quotation, so he had not made any observations about the roof support timbers

DETERMINATION

This body corporate has not been operating in accordance with the legislation for some time. The owners of the two lots do not hold annual general meetings, they have not prepared annual budgets, they do not pay levy contributions and they have not established a body corporate bank account. The only aspect of the legislation with which they appear to be complying is that they contribute equally to the building insurance, although it is not clear on the material before me if they have the mandatory $10 million public liability insurance in place as well. As the parties are in agreement in respect of this arrangement, there is no dispute between them, and because the jurisdiction of the Commissioner’s office is only enlivened if a dispute exists, I am therefore unable to make any orders in relation to these deficits in the management of the body corporate.

Turning to the matters which are in dispute, on the present evidence I am not persuaded that there is termite activity in the scheme buildings. The pest inspection report dated 13 May 2005 attached to the application noted the presence of termites in fences on the property, and also in timbers in soil contact at the time of the inspection, but not in the buildings themselves. However, risk factors which might attract termites were identified (such as debris in gutters, damaged gutters, leaking roof, unsealed tap flanges and built up garden soil), and this is a matter which the two owners should monitor. I do not therefore propose to make an order that the owner of lot 1 install a termite barrier at the present time. Undoubtedly if termites are discovered in the roof over lot 1 when the roof tiles are being replaced appropriate action will be taken. Clearly, the roofing contractor would not replace roofing tiles over termite infested roof support timbers.

The parking issue is not easily resolved. During the teleconference, both parties conceded that parking on the street immediately outside the scheme is limited, and that there will also be occasions when a tradesperson or a visitor might wish to park on the common property. The major concern expressed by Mr Lion related to the storage of cars on the common property, although the specific car of which he complained in his application has now been removed.

If an order were made that no vehicles were to be parked on the common property at any time, unless the owners agreed in writing to allow it, the situation could become intolerable for both owners and for their tenants. Apart from anything else, the likelihood of an agreement would be remote, given the strained relations that exist currently.

I consider that the best outcome for this scheme with its present ownership will be an order that prohibits the storage of any car on the common property, and which also prohibits the parking of any vehicle in such a way as to obstruct the entrance to either of the garages. The intent of such an order is to provide the flexibility for visitors, tradespersons and even the occupants of the lots to park their vehicles on the common property from time to time, whilst at the same time avoiding the scheme becoming a rubbish tip. The ideal situation would be for the garages to be used for their intended purpose (the parking of occupiers’ cars) such that the occasions when other vehicles were on the common property would be relatively limited, however I recognise (as indeed did both parties) that some regard must be had for the specific circumstances of this scheme with its very limited street parking.

In view of the parties’ stated position in relation to formal body corporate requirements, I have decided that the maintenance of the grounds should continue to be monitored by the respective owners, with appropriate steps being taken if trees present a danger to the buildings. I have not made any order in this regard.

Both owners need to be aware that if the ownership of either lot should change, the present non-adherence to the requirements of the legislation might not be tolerated by the new owner. If a dispute should then arise, an adjudicator would view a request for orders in a different light.

i.	To provide a termite barrier and vermin treatment and
ii.	To have the garden area overgrowth reduced and
iii.	To remove rubbish and car bodies and car parts from the driveway area.

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

11 Esther [2005] QBCCMCmr 729 (23 December 2005)