Jadran Court [2007] QBCCMCmr 435 (24 July 2007)

Last Updated: 27 July 2007

REFERENCE: 0845-2006

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	13870
Name of Scheme:	Jadran Court
Address of Scheme:	54 Frank Street LABRADOR QLD 4215

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

Joseph Edward Stonham, the owner of lot 2

I hereby order that the body corporate is responsible for maintaining all common property which has not been allocated to the exclusive use of lot 2, unless otherwise exempted under section 109(3) of the Body Corporate and Community Management (Standard Module) Regulation 1997. I further order that the owner for the time being of lot 2 is responsible for maintaining common property which is contained within the exclusive use area allocated to lot 2 by virtue of the exclusive use by-law registered under Dealing Number 601237677 on 19 June 1974.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0845-2006

"Jadran Court" CTS 13870

ORDER SOUGHT

The applicant has sought an order of an adjudicator under the Body Corporate and Community Management Act 1997 (the Act) as follows:

An order is sought to have the body corporate ordered to maintain all concrete footpaths, driveways and parking areas where such structures are not additional installations specifically installed by owners, but are part of the original construction before the complex was strata titled.

(typed as written)

JURISDICTION

The application evidences a dispute between the owner of a lot included in a community titles scheme and the body corporate for the scheme (Act s227(1)(b)).

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)).

SCHEME DETAILS

Jadran Court is a community titles scheme comprising 11 lots and common property. The scheme was established upon registration of the building unit plan (now described as a building format plan) on 5 April 1974, and is regulated by the Body Corporate and Community Management (Standard Module) Regulation 1997 (Standard Module).

BACKGROUND

There is a lengthy history of disputation in this scheme. Two previous adjudications have resulted in orders being made on 22 January 2004 and 14 June 2006. All of this is well known to the parties and to the other owners in the scheme, as material was circulated to them at the time. I do not therefore intend to repeat that material here.

This application was provided to all owners, who were then invited to respond. Submissions were received from two owners. The applicant exercised his right of reply to that material.

To the extent to which the material refers to harassment and vindictive behaviour, it has been ignored, on the basis that it is not relevant to the matter for determination, namely who is responsible for the maintenance of the common property and certain footpaths, driveways and carports within the exclusive use area allocated to lot 2.

DETERMINATION

Section 109 of the Standard Module provides as follows:

109 Duties of body corporate about common property--Act,

s 152

(1) The body corporate must maintain common property in good

condition, including, to the extent that common property is

structural in nature, in a structurally sound condition.

(2) To the extent that lots included in the scheme are created

under a building format plan of subdivision, the body

corporate must--

(a) maintain in good condition--

(i) railings, parapets and balustrades on (whether

precisely, or for all practical purposes) the

boundary of a lot and common property; and

(ii) doors, windows and associated fittings situated in a

boundary wall separating a lot from common

property; and

(iii) roofing membranes that are not common property

but that provide protection for lots or common

property; and

(b) maintain the following elements of scheme land that are

not common property in a structurally sound

condition--

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including

load-bearing walls.

(3) Despite anything in subsections (1) and (2)--

(a) the body corporate is not responsible for maintaining

fixtures or fittings installed by the occupier of a lot if

they were installed for the occupier’s own benefit; and

(b) the owner of the lot is responsible for maintaining utility

infrastructure, including utility infrastructure situated on

common property, in good order and condition, to the

extent that the utility infrastructure--

(i) relates only to supplying utility services to a

particular lot; and

(ii) is 1 of the following types--

• hot-water systems

• washing machines

• clothes dryers

• another device providing a utility service to a

lot; and

Examples for subsection (3)(b)--

1 An air-conditioning plant is installed on the common property, but

relates only to supplying utility services to a particular lot. The

owner of the lot would be responsible for maintaining the

air-conditioning equipment.

2 A hot-water system is installed on the common property, but

supplies water only to a particular lot. The owner of the lot would

be responsible for maintaining the hot-water system and the

associated pipes and wiring.

(c) the owner of the lot is responsible for maintaining the

tray of a shower that services the lot, whether or not the

tray forms part of the lot.

(4) To avoid doubt, it is declared that, despite an obligation the

body corporate may have under subsection (2) to maintain a

part of a lot in good condition or in a structurally sound

condition, the body corporate may recover the prescribed

costs, as a debt, from a person (whether or not the owner of

the lot) whose actions cause or contribute to damage or

deterioration of the part of the lot.

(5) In this section--

prescribed costs means the proportion of the reasonable cost

to the body corporate of carrying out the maintenance that

can, in the body corporate’s reasonable opinion, be fairly

attributed to the person’s actions.

The area of common property which has been allocated to lot 2 under an exclusive use by-law is defined in the Notification of Change of By-Laws recorded under Dealing Number 601237677 by the Registrar of Titles on 19 June 1974. The area in question is confined to the area immediately surrounding lot 2.

The applicant stated in his supporting grounds that he has been requested to pay for concreting work carried out on common property.

In Application 0757-2005 the adjudicator made the following finding:

The owner of lot 2 is responsible for the maintenance and operating costs of the exclusive use area and all improvements in the exclusive use area (page 8, paragraph 3 of the Statement of Reasons for Decision)

All other areas of common property must be maintained by the body corporate unless it is exempted by virtue of s109(3), above.

It is a simple exercise for the body corporate to determine which area of common property falls within its responsibility and which falls within the responsibility of the applicant. If carports are constructed within the exclusive use area allocated to lot 2 (as was noted by the adjudicator in Application 0757-2005) then the applicant is liable for their maintenance.

The applicant seeks his order based on footpaths, driveways and parking areas "being part of the original construction before the complex was strata titled." It is immaterial when the footpaths, driveways and parking areas were constructed. Once the plan of subdivision was registered, and then the exclusive use allocation was made to lot 2, anything falling within that area of exclusive use must, in the absence of other specific provision, be maintained by the owner for the time being of lot 2.

If, however, driveways or footpaths traverse both common property allocated to lot 2 under the exclusive use by-law, and also the remaining common property outside that exclusive use area, then the cost must be apportioned across both areas, so that the owner of lot 2 would be liable for the portion within the exclusive use area and the body corporate would be liable for the remaining portion.

Ordinarily, this office will not make orders that merely restate the requirements of the Act or the regulations. However, on this occasion I have made such an order to provide some finality for the parties.