Oasis [2007] QBCCMCmr 266 (11 May 2007)

Last Updated: 22 May 2007

REFERENCE: 0060-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	20870
Name of Scheme:	Oasis
Address of Scheme:	100 Morala Avenue, Runaway Bay QLD 4216

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

Joseph Cutcliffe, an Owner(s) of lot 20

I hereby order that the body corporate is not entitled to engage painters to carry out the painting of lot 20. This is provided that the owner of lot 20 ensures that, within a reasonable time, lot 20 is painted to at least the same standard as adjacent lots.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0060-2007

"Oasis" CTS 20870

Application

Oasis Community Titles Scheme (Oasis) is a 76 lot scheme under the Body Corporate and Community Management Act (Act) and the Act’s Standard Module Regulation (Standard Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This is an application by Joseph Cutcliffe, owner of lot 20 (applicant) against the body corporate for Oasis community titles scheme (respondent). The applicant seeks an order to restrain the body corporate from engaging painters to carry out painting on his property without his permission.

Decision

Oasis is registered under a group titles plan (or standard format plan). Relevant legislation includes:

• The body corporate must maintain common property in good condition (Standard Module, 109);
• The owner of a lot must maintain the lot in good condition (Standard Module, 120(2));
• If an owner fails to carry out work required by the legislation or by-laws then the body corporate can carry out the work and recover the costs from the owner (Standard Module, 121);
• The body corporate may, by agreement with an owner, engage a person to supply painting or other services to the owner (Standard Module, 119).

Oasis has a by-law that prevents owners altering the exterior colour scheme of their lot. It is also argued that this by-law allows the body corporate to take responsibility for painting of individual lots. However, the legislation places the responsibility for maintenance of a lot on the owner of that lot and the by-law would be invalid to the extent it is inconsistent with this requirement of the legislation (Act, 180(1)).

A number of objections were made in relation to owners painting their own lots including concerns about public risk and safety, different tints or quality of paint being used, ability to delineate boundaries between lots and managing multiple contractors on site.

I conducted a teleconference with the applicant and the chairperson. At this teleconference the applicant indicated that his neighbour’s property had already been painted and the painters had been able to identify the boundary and stop painting at that boundary. He also indicated that he was a builder who had painted professionally and supervised professional painters. The applicant said that he was willing to provide a copy of his insurance policy to the committee, paint at a time that suited the committee, use exactly the same paint, and paint his lot to an equal or better standard as other lots. He also indicated that he would be able to perform the painting from within his own lot except that he would need to stand on common property to paint the front of the garage.

The legislation places the responsibility for maintenance of a lot upon the lot owner. Under a group titles plan most exterior areas of the building will form part of the lot and need to be maintained by the owner. Provided the owner maintains their lot in good condition, the body corporate has no right to force the owner to use any particular contractor. It will often be possible to have better quality painting performed at a better price if owners vote to approve one particular contractor to perform the painting and individual owners utilise the option of choosing that particular contractor. However, provided any individual owner can paint their own lot to an equal or better standard then it is not possible for the body corporate to force that individual to use the contractor preferred by the majority of owners.

Order

In the circumstances I consider that it is just and equitable to order that the body corporate is not entitled to engage painters to carry out the painting of lot 20. This is provided that the owner of lot 20 ensures that, within a reasonable time, lot 20 is painted to at least the same standard as adjacent lots.