Eleonora Court [2007] QBCCMCmr 199 (10 April 2007)

Last Updated: 24 April 2007

REFERENCE: 0093-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	10589
Name of Scheme:	Eleonora Court
Address of Scheme:	QUEENSLAND

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

Sam Tornatore, a Co-owner(s) of lots 3 and 4

I hereby order that the application for orders that: 1. The affected persons provide the secretary of the body corporate a signed copy of every new rental agreement for units 1, 2 and 6 within 24 hours of occupancy. 2. The affected persons to provide to the secretary a list of by-laws signed by every new occupant of units 1, 2 and 6. 3. The affected persons display signs in units 1, 2 and 6. ie: regulations - noise and nuisance. 4. Random inspection and verification of item 3. 5. That no residents of 57-Annie Street enter any part of Eleonora Courts grounds or buildings - by day or night. 6. That no backpacker or short term accommodation is permitted in A class buildings - Eleonora Body Corporate from the Ryan family 57 Annie Street New Farm. is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0093-2007

"Eleonora Court" CTS 10589

Application

The applicant Sam Tornatore, a co-owner of lots 3 and 4, has sought the following orders of an adjudicator under the Body Corporate and Community Management Act 1997 ("the Act") –

1. The affected persons provide the secretary of the body corporate a signed copy of every new rental agreement for units 1, 2 and 6 within 24 hours of occupancy.
2. The affected persons to provide to the secretary a list of by-laws signed by every new occupant of units 1, 2 and 6.
3. The affected persons display signs in units 1, 2 and 6. ie: regulations - noise and nuisance.
4. Random inspection and verification of item 3.
5. That no residents of 57-Annie Street enter any part of Eleonora Courts grounds or buildings - by day or night.
6. That no backpacker or short term accommodation is permitted in A class 2 buildings in Eleanor Body Corporate from the Ryan family 57 Annie Street New Farm.

With urgency please.

The affected persons are named as Julia Ann and Owen Ryan and Sean Ryan as a committee member.

The Scheme

"Eleonora Court" was registered as a building unit plan (now termed a building format plan) on 5 January 1982 and comprises 8 lots. It is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 ("Standard Module").

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)).

Background

Of the eight units in the scheme, three are owned by various members of the Ryan family. Members of the Ryan family (Sean and Julia) have also owned the premises next door since June 1989 and run it as backpackers’ accommodation.

There have been a series of disputes in Eleanora Court, with orders made in August 2002 against the (then) owner of Lot 6, Rebecca Ryan, that she was not to permit or accept clients from the adjacent backpackers being directed to stay in her lot when accommodation is unavailable to them in the backpackers. The basis of that decision was that the placement of overflow clients from the backpackers next door amounted to conducting a business on a lot within the meaning of the scheme’s by-laws which prohibit the conducting of a business.

A transfer in ownership of Lot 6 from Rebecca Ryan to Julia Anne Ryan was registered on 21 April 2006.

A transfer of ownership of Lot 1 from Owen Ryan to David Ryan was registered on 6 November 2006. This was the first lot in the scheme registered as owned by the Ryans (14 April 1999).

Lot 2 has been registered as owned by Sean Ryan since 13 July 2005.

Grounds

The applicant is quoted as follows:

With reference to conciliation agreement Ref: 0758-2006 – this agreement has not been carried out by Sean Ryan. At the conciliation meeting he also gave a verbal agreement to carry out the same agreement with units 1 & 6. None of the agreements, neither verbal nor written has been honoured.

It is reasonable for the Body Corporate to ask for names & agreements to adhere to by-laws. Indeed the legislation requires it. It would appear that the owners of Lots 1, 2 & 6 are deliberately by-passing the legislation & attempting to impose their own jurisdiction.

The owners of units 1, 2 & 6 do not accept that occupiers of units 1, 2 & 6 are accountable to the Body Corporate.

The applicant also encloses minutes of meetings and various items of correspondence.

Submissions

Five submissions were received. Two were received from other lot owners who live on premises, and two were received from past and present tenants of Lot 1 (provided by the Ryans). One was received from a representative of the Ryans, namely David the owner of Lot 1.

The resident lot owners both express the view that they have been subjected to unacceptable behaviour by tenants. They say that the Ryans do not think the by-laws apply to their tenants. One refers to the terms of a conciliation agreement. One brings up some historical affronts which do not have immediate relevance to the application at hand. They note they are aware that copies of leases need only be supplied to the Body Corporate, where the terms of the lease are at least 6 months (Section 140(3)(b) Standard Module). One views the placement of "holidaymakers" on terms outside the by-laws as discriminatory. She states the terms of the orders sought are therefore reasonable. She says that friendships with people next door are highly unlikely and that the fact that 4 people are given accommodation in a two bedroom lot means that they are in fact renting a bed. She requests that the orders issued in 2002 be reissued. There are also some arguments raised in relation to local government regulations.

One letter from a tenant of lot 1 states that they had not realised that sitting on the balcony and talking was so intrusive to the scheme (particularly as their flat mates had slept on) but accept that it must be disturbing to other lot owners and will not do it again. The other expresses the view that after living there for several months they acknowledge there is a certain level of noise from traffic, birds and humans. They say that at times any of these can be more noticeable than others but, in all, they thought the noise levels were consistent with what might be expected in community living.

The Ryans’ representative has been drawn into recounting some historical concerns which are not specific to the outcomes sought in this application. However the following pertinent points are quoted below:

1. It is our understanding that there is a tenant staying for more than six months we must advise the body corporate of the name of our tenants. Our tenants usually stay an average of three months and we are not obliged to supply the body corporate with the name of the tenant. In an earlier mediation session we agreed to provide the name of the occupier in attempt to satisfy the body corporate committee. We have informed the current Body Corporate Committee that the agreements sought will be completed by the AGM being held on the 12th of March.
2. The list of by-laws signed by every new occupant will also be supplied at the upcoming AGM.
3. It is our understanding that we are obliged by the Residential Tenancies Act 1994 to provide our tenants with a copy of the body-corporate by-laws. Photos of the displayed the by-laws in each unit will also be supplied to the committee at the AGM.
4. We reject outright random inspections. We consider this as another excuse for certain members of the committee to continue to harass our tenants. Photos of the displayed laminated by-laws will be provided at the AGM.
5. We reject the fifth outcome sought, preventing potential friends of tenants from visiting them.
6. The sixth outcome about short-term accommodation (<2 weeks) is not an issue. Our tenants stay more than two weeks and are therefore not deemed short-term residents. There are no laws preventing backpackers from renting units. This would be discrimination.

Determination

Before dealing with each of the outcomes sought, I will repeat part of the reasons for decision provided by Adjudicator Young in the previous order referred to above:^[1]

The legislation itself provides that owners and tenants, and visitors, are bound by the by-laws. The legislation also sets out a mechanism for bodies corporate to take action against offenders by the service of a contravention notice outlining the particular by-law being breached. If the offender does not remedy the breach (eg stop the noise, or continue to throw rubbish on the common property), then the body corporate may prosecute the offender for non-compliance in the local Magistrates Court. The body corporate has issued a number of such notices but does not appear to have prosecuted any instances of non-compliance. I note that at least in one case, the tenant refused to give his name to a process server, making prosecution difficult. I shall deal with the particular breaches of by-laws under the appropriate following item.

Therefore the by-laws apply to tenants, no matter the length of their tenancy agreement.

The affected persons provide the secretary of the body corporate a signed copy of every new rental agreement for units 1, 2 and 6 within 24 hours of occupancy

The respondent advises they have always intended to comply with the conciliation agreement in relation to this request. It appears likely that no standard agreement has previously existed in relation to leases for less than 6 months, and that the respondent has needed this time to develop such an agreement.

Given the respondent’s indication that this outcome was to be complied with by 12 March 2007 and that this date has now passed, I do not intend to make any orders in this regard.

The affected persons to provide to the secretary a list of by-laws signed by every new occupant of units 1, 2 and 6

Given the respondent has indicated they intended to comply with this request at the annual general meeting of 12 March 2007, I do not intend to make any orders in this regard.

The affected persons display signs in units 1, 2 and 6. ie: regulations - noise and nuisance

Given the respondent has indicated they intended to comply with this request at the annual general meeting of 12 March 2007, I do not intend to make any orders in this regard.

Random inspection and verification of item 3

I am concerned that the applicant may be seeking powers of entry that go beyond that given to a landlord under the Residential Tenancies Act 1994 or the Queensland Police Service under the Police Powers and Responsibilities Act 2000.

Under the Body Corporate and Community Management Act 1997 I do not have authority beyond the Body Corporate and Community Management Act 1997. Therefore I must dismiss the application on this point.

If the applicant wishes to pursue orders of this nature, they would need to make application to a court of competent jurisdiction. Legal advice would be appropriate before pursuing such a course of action.

That no residents of 57 Annie Street enter any part of Eleonora Courts grounds or buildings - by day or night

I find the suggestion that residents of 57 Annie Street cannot enter the grounds or buildings of the scheme inappropriate. In my view it is quite possible that friends of tenants in number 53 could be staying at number 57. While they may not frequently be friendships formed in childhood, they can none the less be legitimate friendships formed in the course of travelling.

I accept it may be preferable to residents of 53 that such friends meet at number 57 rather than 53. However it may be just as preferable to residents of 53 that no-one entertain in the complex and that even the occupiers of lots 3, 4, 5, 7 and 8 should go off-premises if they wish to socialise.

Clearly, it would be unreasonable to outlaw entertaining in the complex in general and discriminatory to impose such a condition only on particular lots. I therefore decline to make the order sought.

That no backpacker or short term accommodation is permitted in A class buildings in Eleanor Body Corporate from the Ryan family 57 Annie Street New Farm.

These orders appear to be based on planning requirements of the Brisbane City Council and also the meaning of "short term accommodation". As stated above, I only have jurisdiction in relation to matters falling within the Body Corporate and Community Management Act 1997.

Beyond these issues, I find the term "backpacker" problematic. While the term implies a commonly understood concept within ordinary conversation, it does lack certainty in terms of an enforceable term.

I again refer to the reasons for the previous decision of Adjudicator Young in relation to this scheme:

Apart from the information provided by owners having seen clients entering Lots 1 and 6 from the hostel from time to time, the Brisbane City Council in its letter of 9 July 2001 to owner Maureen Anderson says that the hostel manager had said that backpackers do stay in Lots 1 and 6 but for terms longer than the 2 week (general) threshold defining backpacker accommodation. Stays of longer than two weeks are not classed by the Council as "short term" but "multiple dwelling" for which the scheme is approved.

It would be difficult for the body corporate to know of, let alone establish, whether a resident in either of the lots is a short term occupier or not. In any case, even if the clients are longer term residents (longer than 2 weeks) and the lot owner is not in breach of the Council "short term" use/backpacker regulations, the practice is still subject to the application of the body corporate by-laws. The core question then is whether the practice of accommodating clients from the hostel into a scheme lot is the conduct of a business in breach of By-law 18.

I must again decline to make the particular order sought.

In any event, the respondent advises that the outcome sought by the applicant in this regard is not an issue as the tenants located within the scheme are not offered short term accommodation.

I note that in this matter, the applicant has not sought orders based on the by-laws.

Despite circumstances that find me unable to make the orders sought, I note that it is regrettable that residents of this scheme have likely experienced unreasonable interference with enjoyment of their homes, from time to time. I also recognise that some form of interference is likely to occur from time to time in the future. Unfortunately, this type of situation can of itself create a perception that any activity associated with a particular source is unacceptable.

In terms of future events, I suggest that permanent residents who are disturbed by others’ noise, first stop to consider (as objectively as possible) if the same noise would be disturbing if it were coming from a neighbour with whom they feel aligned. I also suggest that they consider how they might address the situation in the first instance, if the noise was coming from the activities of a friend.

In terms of the Ryans, and if this is not already occurring, I suggest that when asking future tenants to sign the by-laws, they attempt to demonstrate the reasonableness of the by-laws in terms of the comfort of fellow residents. In particular, they may wish to point out possible acoustic oddities of the balconies. While I do not expect that such an expression will have a 100% success rate, hopefully it will leave tenants kindly disposed to considering their neighbours.

It is the responsibility of landlords to take reasonable steps to ensure their tenants abide by the by-laws and the responsibility of all residents to accept that a certain amount of noise necessarily occurs in community titles schemes. Unfortunately, the disturbance felt from time to time is in fact the responsibility of the tenants in the lots, and not the applicant or respondent.

I hope that by co-operating with each other, permanent residents and the Ryans can avoid feelings of animosity towards each other and take appropriate action to maximise the selection of community minded tenants who are both considerate in their actions, but given equal consideration by community minded fellow residents.

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^[1] 0736-2001 – 15 August 2002