Garden City Estate [2007] QBCCMCmr 531 (4 September 2007)

Last Updated: 26 September 2007

REFERENCE: 0024-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	19771
Name of Scheme:	Garden City Estate
Address of Scheme:	QUEENSLAND

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

Amandeep Dhillon, the Owner(s) of lot 6

I hereby order that the application for an order, that the body corporate be responsible for controlling termites and repairing termite damaged units, is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0024-2007

"Garden City Estate" CTS 19771

Application

Garden City Estate Community Titles Scheme (Garden City Estate) is a 64 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). Lot boundaries are designated under a group titles plan (now known as a standard format plan).

This application is by Amandeep Dhillon, owner of lot 6 (applicant) seeking orders against the body corporate for Garden City Estate (respondent). The applicant is seeking orders to require the body corporate to take responsibility for controlling termites and repairing termite damaged units.

Submissions

The applicants’ main submissions were to the effect that there are termite infestations on common property that the body corporate has failed to remove and treat. It is submitted that these termites have now come from common property into his unit and have caused damage.

The body corporate manager has provided submissions to the effect that it is the responsibility of individual owners to protect their lots from termites. It is submitted that the body corporate committee became aware of termite problems in 2004 but relied on professional advice that it was impossible to remove termites from the common property and it is the actual units that need to be protected. It is further submitted that the body corporate has subsequently investigated new alternative options available to it in monitoring termite activity but that the ultimate responsibility lies with the individual to protect their own property.

Other owners have been invited to provide submissions and two owners have provided their own submission supporting the application.

Decision

Maintenance responsibilities

Protecting premises from pests that would damage the premises is something that comes within maintenance responsibilities. However, as both the body corporate and the individual lot owners have maintenance responsibilities in respect of different aspects of the scheme it is necessary to determine who has the primary responsibility to protect the units against termite infestation.

Generally speaking, it is the body corporate’s responsibility to maintain common property and the individual lot owner’s responsibility to maintain the interior of their unit. However, maintenance responsibilities can vary for some matters depending on the type of plan the scheme is registered under. Under a building format plan, units within the scheme typically share common walls and roofing and the body corporate has additional maintenance responsibilities over external items that fall outside the lot boundaries (Accommodation Module, 108(2)). On the other hand, under a standard format plan (formally group titles plan) individual owners typically remain in a position more similar to owning a standalone house where the exterior of the unit is typically wholly within a lot boundary that is marked by survey pegs.

Protection of units from termites

Garden City Estate consists of units in separate lots created under a group titles plan. Lot boundaries are determined by survey pegs. The plan indicates that the unit buildings do not directly abut common property areas but are within the boundaries of individual lots. I have therefore concluded that individual lot owners are responsible for maintaining the areas immediately around their own unit and are responsible for taking any reasonable steps to prevent or detect any termite entry into their unit.

The body corporate will remain responsible for maintaining areas of common property outside these lot boundaries and it may be prudent for the body corporate to take reasonable steps to eradicate any obvious termite infestations. However, the body corporate should not be responsible for any termite damage to units owned by individual owners within the scheme.

Action by individual owners

As part of maintaining their lot in good condition, individual owners should take some reasonable steps to prevent termites infesting their lot or to detect any termite damage at an early stage. This may involve some type of chemical barrier, early detection system or regular inspections.

A review of the plan for the scheme indicates that most units have at least one common wall with another unit, this wall being on the boundary between the lots in question. It would therefore appear sensible that owners of adjacent units seek to reach agreement on the implementation and cost sharing of a termite management system.

If a significant number of owners agree on one particular type of termite management system then it may be beneficial for the body corporate to enter into a single contract with a professional in that respect. In this way, the body corporate can offer the service to all owners who agree to accept the service. However, the service must be provided only to those owners who agree to accept the service and the body corporate must recover the costs of supplying the service from the owners who accept the service (Accommodation Module, 118).

Order

The scheme consists of units within a group titles plan. Termites infesting the applicant's lot would have come through an individual owner's lot, most probably the applicant's own lot, before entering the applicant's unit. I have concluded that it is the responsibility of individual owners to protect their units from termites. The application seeking to require the body corporate to take responsibility for the termite damage is therefore dismissed.

In the circumstances, I would encourage all owners to consider appropriate ways to protect their own units from termites.