Bayview Beach [2006] QBCCMCmr 249 (19 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0163-2006

ORDER OF AN ADJUDICATOR (AMENDED)

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	6960
Name of Scheme:	Bayview Beach
Address of Scheme:	418 Marine Parade BIGGERA WATERS QLD 4216

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

The Body Corporate

I hereby order that the owners of lot 1 are to forthwith cease using the car parking space referred to as "Area 32" in sketch plan "A" attached to the Community Management Statement dated 13 August 1998. I further order that unless otherwise permitted by the body corporate committee, the owners of lot 1 may only use the car parking space allocated by the Community Management Statement and referred to as "Area 3 on sketch plan "A".

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0163-2006

"Bayview Beach" CTS 6960

PURPOSE OF AMENDED ORDER

The purpose of this Order is to amend an earlier order dated 16 May 2006 by clarifying that it was intended to have effect as a Final Order rather than an Interim Order.

The Order dated 16 May 2006 was headed "Interim Order of an Adjudicator" which could give rise to the impression that a further Final Order would be made. Rather, given the straight-forward nature of the legal issues in this matter, it was intended that the purpose of that Order was to finally determine the matters in dispute i.e. the Order should be regarded as an "Interim Final Order".

Accordingly, no further submissions will be sought from the parties and no further orders will be made regarding this dispute resolution application.

APPLICATION

The applicant is the body corporate for Bayview Beach, has sought the
following Interim Order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act), quote -

An order requiring the owner and other occupiers of Lot 1 to park in their allocated car space for the lot (as identified in the Community Management Statement) and not in the car space for Lot 12, until such time as a final determination is made.

The applicant also seeks the following Final order

An order requiring the owner and other occupiers of Lot 1 to park in their allocated car space for the lot (as identified in the Community Management Statement)

BACKGROUND

The applicant states that soon after purchasing lot 1 in January of this year, the new owners began using the car park space allocated to lot 12. In the Community Management Statement (CMS) dated 13 August 1998, Lot 1 is allocated car park area 3 and lot 12 is allocated car park area 32, (which is a double car parking space). It is alleged that prior to purchase of the property the real estate agent informed the current owners of lot 1 that they were entitled to use lot car park 32. Although the owners of lot 1 have been advised that they are supposed to use car park space 3, they continue to use car park space 32, with the result that the occupier of lot 12 has to park elsewhere.

On 14 February, the committee resolved by way of flying minute that the body corporate manager was to issue a contravention notice to the occupier of lot 1. The contravention notice was issued on 14 February 2006 and included a copy of the exclusive use by-law. However it is alleged that the owners of lot 1 continue to use car park space 32. Accordingly, the committee has resolved that this application be brought.

Pursuant to section 243 a copy of the application was distributed to all owners of lots in the scheme. In summary, the owners of lot 1 claim that they are entitled to use car park space 32 (or B5) because:
• The real estate agent told them they were entitled to a double car parking space;

• Their solicitors were not advised of the car parking arrangements, nor were the arrangements disclosed on the title search;
• the previous owners claimed to be entitled to car park space 32;

•	the body corporate should have disclosed to them who was entitled to what car parking space;
•	this issue should have been resolved when the previous owners of lot 1 were in occupation.

The body corporate made the following submissions

• allegations of deceptive advertising or representations should be raised with the previous owner, the real estate agent and the solicitor who handled the purchase of the unit;
• if proper searches were undertaken, the purchasers’ solicitor would have noted the exclusive use allocations marked on the Community Management Statement dated 13 August 1998 and available for perusal from the Department of Natural Resources;
• there is no "claim" by lot 12 to car space 32 but a legal right in accordance with the CMS;
• the letter referred to was sent by the previous owners on 22 February 2006 when settlement of the property occurred on 9 January 2006 and in any event such correspondence cannot override the CMS;
• if there was some unofficial swap previously entered into, it was not undertaken with body corporate approval and not officially recorded by way of a new CM;
• the market value of lot 12 is enhanced by the allocation of the tandem car space. The owners of lot 1 may have paid a higher price for their unit believing that it was allocated a "tandem" car space, but if proper searches were undertaken they would have noted that car park 3 is allocated to Lot 1.

The owners of lot 12 advised that the information provided by the body corporate is correct and they require their car parking space to be vacated for use by their tenant who has occupied their unit since February 2002. They did not give permission to anyone else to use their car parking space for parking cars or storage of goods.

JURISDICTION

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)).

DETERMINATION

I note that the body corporate has issued a notice regarding likely future contravention of the above body corporate by-law pursuant to section 183(3). I have perused the most recent Community Management Statement held by the Department of Natural Resources and note that the CMS, dated 13 August 1998, provides as follows:

By-law 3: Vehicles
An occupier must not park any vehicles on common property except:
(a) with the consent of the body corporate committee, or
(b) where authorised by an exclusive use by-law .

By-Law 22. Exclusive Use – Car Parks
The owner for the time being of each lot in the building shall be entitled to the exclusive use for himself and his licensees of the car space or spaces identified in Schedule E and on the attached plan marked A provided that in respect of those car spaces allocated pursuant to this by-law the body corporate committee is hereby authorised to vary the allocation so made and to transpose car spaces from one lot to another at any time and from time to time on the written request of the owners of the lots involved. Each owner to whom exclusive use is given pursuant to this by-law shall use such space or spaces for the purposes of car parking only ....

Apart from the representations of the real estate agent and the letter from the vendor dated 28 March 2006, the owners of lot 1 have failed to produce any evidence of their entitlement to car parking space 32. The wording of the CMS, dated 13 August 1998, is clear - Lot 1 is allocated car park 3 and lot 12 is allocated car park 32.

The owners of lot 1 have not provided any evidence to suggest that the body corporate has authorised a reallocation of car parking spaces, and in any event, section 62 of the Act contemplates that such a reallocation of exclusive use areas would be recorded in a new Community Management Statement.

It should be noted that before the purchase of a unit, a purchaser has an opportunity to inform ones self of the scheme by-laws by conducting a search of the CMS registered with the Department of Natural Resources.

As well as being part of standard conveyancing practice in the purchase of a lot in a community titles scheme, it is also one of the "suggested matters for examination" on the "Contract Warning" which is contained in each contract of sale for a lot in a community titles scheme. Potential purchasers are therefore able to peruse the CMS prior to purchase, and raise any anomalies regarding entitlement to exclusive use of common property with the body corporate.

The Act establishes rights and imposes obligations on participants in community titles schemes to promote the provision of flexible and contemporary communally based arrangements. One of the specified objects of the Act is "to balance the rights of individuals with the responsibility for self management as an inherent aspect of community titles schemes".

All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law, and the body corporate has a duty to enforce the by-laws (Act 94(1)). While rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)), there is nothing extraordinary in this case to render the decision of the committee unreasonable.

However, It would be unreasonable to expect the owner of lot 12 to forgo entitlement to their double car parking space because of an alleged misrepresentation by a real estate salesman to the purchasers of lot 1, and the failure of the purchasers or their solicitor to conduct proper searches.
I therefore propose to order that the owners of lot 1 shall forthwith cease to use the car parking space referred to as "Area 32" in sketch plan "A" attached to the Community Management Statement dated 13 August 1998. Instead, the owners of lot 1 shall forthwith use the car parking space allocated to lot 1 in the Community Management Statement and referred to as "Area 3 on attached sketch plan "A".

Although the applicant contemplated that this Office would firstly make an Interim Order to be followed by a Final Order, it was my intention that the order dated 16 May 2006 should finally determine the matters in dispute i.e. the Order should be regarded as an "Interim Final Order".

Accordingly, no further submissions will be sought from the parties and no further orders will be made regarding this dispute resolution application.