Cuvee [2006] QBCCMCmr 669 (18 December 2006)

Last Updated: 27 March 2007

REFERENCE: 0750-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	5637
Name of Scheme:	Cuvee
Address of Scheme:	50 Galloway Drive ASHMORE QLD 4214

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Chris Para, the owner of Lot 5

I hereby order that the application by Chris Para, the owner of Lot 5 seeking an outcome that Motion 10 passed at the Annual General Meeting dated 21 March 2006 be invalidated, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0750-2006

"Cuvee" CTS 5637

APPLICATION

This application is by Chris Para, the owner of Lot 5 (applicant) against the body corporate. The applicant is seeking an outcome that Motion 10 passed at the general meeting dated 21 March 2006 be invalidated.

JURISDICTION

"Cuvee" Community Titles Scheme 5637 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).

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 claimed or anticipated contravention of the Act or the community management statement; or the exercise of rights or powers, or the performance of duties, under the Act or the community management statement^[1].

SUBMISSIONS

In accordance with the Act, submissions were called and a copy of the application was provided to the body corporate manager for distribution to the owner of each lot (excluding the applicant) and the committee. A submission was received from the committee and a lot owner. The applicant made a written reply to submissions under section 244 of the Act.

DETERMINATION

Motion 10 on the agenda of the Annual General Meeting dated 21 March 2006 (AGM) related to replacing the fence and gate behind Unit 5. The Motion was included on the voting paper for the AGM as a motion with alternatives. The Motion stated "That the 12 metre fence and gate behind Unit 5 be replaced" with the first alternative being that the cost be met by the unit owner and the second alternative being that the cost be met by the body corporate. The minutes of the AGM indicate that it was resolved "That the 12 metre fence and gate behind Unit 5 be replaced at the cost of the unit owner".

The application was made on 14 September 2006, almost six months after the resolution was passed on Motion 10. Section 242 of the Act prescribes a three month time limit for making an application about a resolution passed at a general meeting and provides that the time limit may be waived by an adjudicator for good reason. The applicant has stated that the time limit should be waived as there was no response from the body corporate or the body corporate manager; he was waiting for responses from other (undisclosed) sources; and nobody is interested to talk to him. Motion 10 sought a determination relating to the allocation of responsibility for the replacement or maintenance of the fence and gate behind Lot 5. The body corporate voted that the owner of Lot 5 is responsible for the replacement of the fence and gate. While the applicant seeks to invalidate the Motion, the effect of the outcome sought is that the applicant is questioning this determination of the body corporate. In the circumstances, I am satisfied that the time limit should be waived.

The plan of subdivision for this scheme is Building Units Plan 9695 which was registered by the registrar of titles on 1 December 1989. On 17 January 1990, the registrar of titles recorded a change of by-laws including By-Law 16 stating that "The proprietor for the time being of Lot 5 shall be entitled to the exclusive use and enjoyment of that portion of the Common Property adjoining Lot 5 and shown diagonally striped on the attached plan, marked with the letter ‘A’". The attached plan shows the exclusive use area as being to be to the north, east and west of Lot 5. The plan indicates that there is unallocated common property between that part of the exclusive use area to the east of Lot 5 and the boundary of scheme land.

A general function and duty of a body corporate is to administer and manage the common property reasonably and for the benefit of lot owners^[2]. A body corporate must maintain common property in good condition^[3]. However, the owner of a lot who obtains the benefit of an exclusive use by-law is responsible for the maintenance and operating costs for the part of the common property to which an exclusive use by-law applies, unless the by-law itself makes some specific provision about maintenance and operating costs^[4]. Further, the body corporate’s duty to maintain common property is subject to any authority given by the body corporate to a lot owner to make an improvement to common property for the benefit of the owner’s lot^[5]. For improvements made prior to the commencement of the Act (13 July 1997) a resolution without dissent in general meeting was required^[6]. If the proper authority had been given, the legislation has consistently provided that the benefiting lot owner is responsible for the maintenance of the improvement unless excused by the body corporate.

This dispute relates primarily to the maintenance of a fence on common property adjacent to Lot 5. While there may be some disagreement between the parties as to the exact position of the fence, I am satisfied from the material submitted that the fence (including the gate) extends from the building in which Lot 5 is located, over exclusive use common property allocated to the owner of Lot 5 and over common property not subject to an exclusive use allocation. Lot 5 is in the same building as Lots 6 and 7. The owners of these lots also have the benefit of an exclusive use allocation (By-Laws 17 and 18). It is apparent from the material submitted that there are also fences to the east of these lots which extend from exclusive use common property over unallocated common property.

The committee submitted that there were no fences behind Lots 5, 6 and 7 when the body corporate was created in 1989 and that these fences were erected by subsequent lot owners with the acquiescence of other owners. The committee claim that these fences constitute an improvement to common property for the benefit of the respective owners and are therefore the owners’ responsibility to maintain. It is submitted that the owners of Lots 6 and 7 replaced a fence behind these lots in 2002.

Where an owner seeks to carry out work on common property of this nature for the benefit of the owner’s lot, the owner must first obtain the authority of the body corporate in accordance with section 114 of the Standard Module. The fences to the east of Lots 5 to 7 separate common property from general use and primarily benefit the owners of these lots. The body corporate or other owners do not derive any benefit from these fences. With respect to the disputed fence, it would seem that the only access through the fence to the common property area enclosed by it and to the east of Lot 5 is the gate on the part of common property allocated as exclusive use to the owner of Lot 5. In these circumstances, I agree that these fences constitute improvements to common property for the benefit of the respective owner’s lots.

It would seem that the body corporate has not given the proper authority for the erection of these fences and this is an issue which should be considered by the body corporate. However, the absence of proper authority to erect the fence does not change the responsibility for the maintenance of the fence. If proper authority had been given to the then owner of Lot 5, the applicant would be responsible to maintain the fence in good condition unless excused by the body corporate. It is clear given the disputed resolution that the body corporate has not given this exemption. Additionally, the applicant is responsible for the maintenance and the operating costs for the exclusive use area given the terms of By-Law and section 123 of the Standard Module.

For these reasons, I consider that the owner of Lot 5 is responsible for the general maintenance (including the replacement) of the disputed gate and fence. The requirement to maintain the fence includes the requirement to replace the fence if the most practicable way to retain a fence in its present position is to replace it with an equivalent fence. It is of no consequence that the fence is on or not on the area allocated by By-Law 16, or that the fence is on the boundary between this area and an unallocated part of common property. Of course, if the applicant chooses, he may remove the fence completely and not replace it. If the applicant would prefer to construct a new fence wholly on the exclusive use area allocated to Lot 5, he will need to seek body corporate authority in accordance with section 114 of the Standard Module.

In passing Motion 10 by ordinary resolution, the body corporate determined that the owner of Lot 5 was responsible to replace the fence and gate. The gate and part of the fence is on the exclusive use area allocated to the owner of Lot 5 by By-Law 16. Given section 123 of the Standard Module, the body corporate could not, by ordinary resolution make this decision as specific provision for maintenance and operating costs must be in the by-law. Additionally, section 114 of the Standard Module provides that an improvement to common property by a lot owner for the benefit of the owner’s lot such as the erection of the 12 metre fence must be authorised by special resolution and in giving the authority, section 114(4)(b) provides that the improvement must be maintained in good condition by the owner "unless excused by the body corporate". In my view, the body corporate’s decision to excuse the owner requires the same resolution as the authority to make the improvement. As a consequence, the body corporate could not excuse the owner by ordinary resolution. While the body corporate could not accept responsibility for the maintenance of the gate and fence by ordinary resolution, as the outcome of the Motion is not contrary to the legislation, I do not consider it necessary that the Motion be invalidated.

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^[1] Section 276(1), Act.
^[2] Sections 94 and 152, Act.
^[3] Section 109(1), Standard Module.
^[4] Section 123, Standard Module.
^[5] Section 114, Standard Module.
^[6]Section 37A, Building Units and Group Titles Act 1980.