Venice Apartments [2006] QBCCMCmr 262 (25 May 2006)

Last Updated: 19 December 2006

REFERENCE: 0873-2005

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	24307
Name of Scheme:	Venice Apartments
Address of Scheme:	12 Bailey Street New Farm QLD 4005

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

Mark Andrew Conaghan, the Owner of lot 4

I hereby order that the application for the following order: "Repairs to Unit 4 and Unit 13 to prevent the ingress of water from the balcony of Unit 13 causing extensive damage to timber surrounds and floor boards, porch door, of Unit 4 over a period of 4 years." is dismissed. I further order that the Owner of Lot 4, Mark Andrew Conaghan, must, upon the receipt of at least seven days notice in writing, permit a person authorised by the body corporate to enter and remain upon his lot and the common property (including that common property over which he has rights of exclusive use) while it is reasonably necessary to carry out repairs required to prevent water ingress to his lot.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0873-2005

"Venice Apartments" CTS 24307

Scheme

"Venice Apartments" was registered as a building units plan (now known as building format plan) of subdivision comprising 17 lots and common property on 3 October 1997. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (the Standard Module).

Application

This application is brought by the Owner of Lot 4, Mark Andrew Conaghan (the Applicant) against the body corporate, seeking an order for "repairs to unit 4 and unit 13 to prevent the ingress of water from the balcony of unit 13 causing extensive damage to timber surrounds and floor boards, porch door, of unit 4 over a period of 4 years".

Submissions in response to the application were sought from all owners and in particular from the Owner of Lot 13, Christopher Godfrey. No submissions were received, apart from one from the chairperson which was very brief. I requested, pursuant to my investigative powers under section 273 of the Act, via letter of 8 May 2006, that the body corporate/body corporate managers provide me with certain information. The body corporate managers responded to that request and I have been aided by that information in my determination of this dispute.

Jurisdiction

This is a matter which falls within the dispute resolution provisions of the Act (see sections 227, 228, 276 and Schedule 5).

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

Responsibility for Maintenance of Balconies and Courtyards

Firstly, I wish to respond to a statement made by the current body corporate manager, Jenny Maguire, in her response to my letter of 8 May 2006. She states in her second last paragraph on page two "We note from our records, on the plan of the Body Corporate, that the balconies are registered as exclusive use areas and therefore the Lot owner is responsible for all maintenance and up keep of the balconies."

It is true that the balconies and courtyards within Venice Apartments are in fact common property over which rights of exclusive use have been granted pursuant to by-law 13, recorded in the Community Management Statement for the scheme registered on 22 January 1998. Section 173(b) of the Act provides that the regulation module applying to the scheme may make provision about obligations imposed on the owner of a lot to which the by-law attaches (including obligations that would otherwise be obligations of the body corporate). In relation to maintenance, section 123(2) of the Standard Module provides as follows:

123 Conditions and obligations under exclusive use
by-law--Act, s 173
(2) An exclusive use by-law is taken, in the absence of other
specific provision in the by-law for maintenance and
operating costs, to make the owner of the lot to whom
exclusive use or other rights are given responsible for the
maintenance of and operating costs for the part of the
common property to which the exclusive use by-law applies.
Examples of operating cost for part of common property--
Cost of providing lighting to the part of common property.

Subsection (3) goes on to provide:

(3) However, if the lot was created under a building format plan
of subdivision, in the absence of other specific provision in
the by-law, the owner of the lot is not responsible for--
(a) maintaining in good condition roofing membranes
that--
(i) are on the part of the common property to which
the by-law applies; and
(ii) provide protection for lots or common property; or
(b) maintaining in a structurally sound condition any of the
following elements of scheme land that are part of a
structure that is on the part of the common property to
which the by-law applies and is not constructed by or for
the lot owner--
(i) foundation structures;
(ii) roofing structures providing protection;
(iii) essential supporting framework, including
load-bearing walls.

Section 123(3) was inserted into the Standard Module in 1993 by the Body Corporate and Community Management Legislation Amendment Regulation (No. 1) 2003 No. 263, 2003. The explanatory notes give some insight into why the amendment was introduced.

Amendment of s 123 (Conditions and obligations under exclusive use
by-law--Act, s 136)
Clause 98--Section 123 provides that, unless an exclusive use by-law
specifically provides otherwise, the owner to whom exclusive use of
common property is given is responsible for the maintenance of that part of
the common property. However, it is generally not appropriate that, in a
building format scheme, this obligation to maintain common property
applies to the maintenance of those parts of the common property that exist
for shelter and support for the general benefit of the scheme, even if they
are within the area that is the subject of the exclusive use by-law.
Accordingly, new subsection (3) provides that, in a scheme created by a
building format plan of subdivision, an owner to whom exclusive use of
common property is given is not responsible for the maintenance of roofing
membranes and structures that exist for the shelter and support in the
scheme, unless the exclusive use by-law specifically provides otherwise.^[1]

By-law 13, as recorded in the Community Management Statement, provides as follows (bolding my emphasis):

BY-LAW 13 Exclusive use - Courtyards

13.(a) The proprietors for the time being of some lots in the building shall be entitled for himself and his licensees to the exclusive use of that part (if any) of the common property being the courtyard area and/or deck area as allocated in Schedule E and identified on the plan annexed thereto and marked "B" and "C" hereto for recreational and leisure purposes and any other purposes incidental to the occupation use and enjoyment of the respective lot. It shall be the respective proprietor’s obligation to maintain the courtyard and/or deck in a clean and tidy state and in good and serviceable repair and for the plants thereon to be properly tended and watered and for the grass (in the case of a courtyard) to be mown and the proprietor shall not do or permit to be done in the courtyard and/or deck any act or thing which shall or maybe or grow to be an annoyance, nuisance, grievance, damage or disturbance of the proprietors or occupiers of other lots in the building. The proprietor shall not otherwise be obliged to comply with the body corporate obligations set forth in Section 114 of the Act.

While by-law 13 makes specific provision for maintenance of the courtyard and deck areas generally, I do not consider that it makes specific provision for the maintenance of roofing membranes or structural aspects of the respective areas. I consider that the deck off lot 13, directly above the courtyard area of lot 4, constitutes a roofing membrane that is on part of the common property to which by-law 13 applies and also provides protection for lot 4 and the common property courtyard over which lot 4 has rights of exclusive use. I also consider that the deck off lot 13 is a roofing structure that is on the part of the common property to which the by-law applies and was not constructed by or for a lot owner. Therefore, under section 123(3), the body corporate is responsible for maintaining the structure of the deck off lot 13, directly above lot 4, including the roofing membrane. It appears to be conceded that the failure of the membrane on the deck off lot 13 is the cause of the water ingress into the Applicant’s lot.

Has the Body Corporate Fulfilled Its Responsibility?

It is apparent from the material submitted by the Applicant that water ingress into various lots within Venice Apartments, including the Applicant’s lot 4, and courtyard drainage have been issues for some years. It is also apparent that the body corporate has been attempting to address these issues for some time. The manager has submitted copies of minutes of meetings to substantiate this. It appears to me, on the basis of the material submitted by the Applicant himself and the body corporate manager in response to my letter of 8 May 2006, that the only reason the repairs the Applicant now requests have not been attended to is the Applicant’s refusal to co-operate with the body corporate and the selected contractor, Dwight Hicks of Dwight Hicks Constructions. The letter of 20 October 2005, from Yvonne Barnes, the then body corporate manager for the scheme, to the Applicant is particularly telling in this regard. The Applicant has been cited as refusing to answer the door to his unit despite being home, refusing to allow access to his unit and being tardy in making contact with tradesmen to arrange suitable times for the necessary work to be performed. I note from the second last paragraph of that letter, that the Applicant was advised, in order to have a different tradesman do the work, it was necessary for him to contact a carpenter/builder and have them submit a quote to the body corporate managers.
Jenny Maguire, the current body corporate manager for the scheme, advised by facsimile on 22 May 2006 that no further quotations have ever been received from the Applicant. Further, she forwarded a facsimile received from Dwight Hicks Constructions detailing the difficulties the tradesman has had in attempting to perform the necessary repairs, as follows:

Address 4/12 Bailey St New Farm Q

Re – Water Entrance Back S/Door

Body Corporate gave approval for work to be carried out late last year 2005.
Owner could not be contacted by phone. Eventually owner responded. The conversation was – A. Approval for work was granted; B. I wanted to arrange time for work to be done C. Owner’s response. He didn’t care. He didn’t want work to be done. He was going to complain to the Rental Authorities and make it difficult for them – "body corporate". My response – when you’re ready call me – he said he would. To date I have never heard from him.

I believe the body corporate has earnestly tried to do everything in its power to fulfil its maintenance obligations under the legislation. I further believe that the only reason the necessary work has not been undertaken is because of the Applicant’s refusal to co-operate. Perhaps the only additional thing the body corporate could have done was to exercise its power of entry into lot 4 in accordance with section 163 of the Act. I appreciate that bodies corporate may be reluctant to use this power without the backing of an Adjudicator’s order.

I intend to dismiss the application for the order sought by the Applicant and make an ancillary order that the Applicant, upon the receipt of at least seven days notice in writing, permit a person authorised by the body corporate to enter and remain upon his lot and the common property (including that common property over which he has rights of exclusive use) while it is reasonably necessary to carry out repairs required to prevent water ingress to his lot.

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^[1] Explanatory Notes for SL No.263 pp70-71