Fifteen George Street [2007] QBCCMCmr 534 (5 September 2007)

Last Updated: 26 September 2007

REFERENCE: 0443-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	8808
Name of Scheme:	Fifteen George Street
Address of Scheme:	15 George Street, Nambour

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

Gregory and Cheryl Colbert, the Owners of lot 5

I hereby order that within 30 days of the date of this Order the owner of lot 8 shall, at its expense, arrange for repairs to be effected in a workmanlike manner to the leaking shower recess in lot 8. I further order that within 30 days of the date of this Order the owner of lot 8 shall, at its expense, engage a plumber to locate other sources of water leakage from lot 8 through the concrete floor into lot 5. I further order that within 30 days of the date of this Order the owner of lot 8 shall, at its expense, engage a plumber to effect any repairs necessary to prevent water leakage from lot 8 where the cause of the leakage is attributable to faulty utility infrastructure including water pipes and drain pipes within the boundaries of lot 8.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0443-2007

"Fifteen George Street" CTS 8808

Scheme

Fifteen George Street consists of 15 lots and common property on a Building Format Plan. The scheme is regulated by the Body Corporate and Community Management (Standard Module) Regulation.

Application

This application is brought by the owners of lot 5 which is located on level B, against the owners of lot 8 which is located on level C, above lot 5, seeking an order that the owner of lot 8

• Repair the leaking shower recess in lot 8;

• To locate and repair any other sources of water leakage from lot 8 through the concrete floor into lot 5.

Background

The applicants state that water has been leaking through the concrete slab roof for a number of years and in 2003 the previous owner had repaired the bathroom area by removing flaking paint and mould and also installed a large exhaust fan. Owing to continuing seepage the previous owner again removed flaking paint and repainted the bathroom again in 2006. When contacted by the previous owner of lot 5, the owner of lot 8 insisted that the problem was condensation within the lot 5 bathroom, and refused to discuss the matter further.

Since buying the property in July 2006 they have been aware of water leaking through the concrete slab floor into lot 5 causing paint to peel and a white powder substance to form on the concrete surface. At the time of making the application, water was leaking through the concrete slab floor at a rate of approximately one drip per minute.

Attached to the application was an invoice and report dated 16 August 2006 from a firm of plumbers named Maroochy Gas which contained the following information:

Report on leaking shower base from lot 8 into ceiling of lot 5. The shower waste is cast into the concrete slab (we think it is old gal pipe) which does not comply to plumbing regulations. The shower was partially blocked causing the shower base to hold water which we cleared and observed that the grout was missing where the floor meets the walls in the shower cubicle. This appears to be a major problem as water appears in unit 5 ceiling in the same locations.
Without excavating the shower floor to check the waste pipe and the shower not able to be used
we would suggest sealing the shower base and then observing the ceiling to see if the water dries up and the paint blistering ceases.

After receiving advice from the body corporate manager that this is a matter between owners, the applicants wrote to the owner of lot 8 on 26 April 2007 advising that there are a number of leaks through the concrete slab ceiling including the following:

• a leak through the ceiling of the bathroom;

• a leak the Western end of the sliding door; and

• a leak in the middle of the living area.

Although requested to take action to rectify the leak within 14 days, the applicants have not received a response from the owner of lot 8 who owns 10 of the 15 lots in the building.
The applicants also state that although the building is twenty three years old and scheme’s sinking fund contains some $52,000, the building is in a poor state of repair as gutters and downpipes require replacement and the roof is also rusting. The shabby state of the building has an adverse impact on the value of units and rental returns.

Pursuant to section 243 of the Act, all lot owners and the body corporate were invited to make submissions with this Office by 30 July 2007. As no submissions were received by close of business on 30 July, on 31 July a staff member contacted the body corporate manager and the owner of lot 8 to determine whether either intended to make submissions.

The owner of lot 8 stated that "the leak" had been fixed by a plumber who was engaged by the body corporate manager. This Office contacted the applicants who stated that although one particular leak had been rectified, the original leak in the bathroom was still a problem. The body corporate manager stated that only a leaking water pipe had been repaired and that as this dispute only involves the owners of lots 5 and 8, the body corporate did not wish to make a submission.

Jurisdiction

Section 227(1)(b) of the Act provides that a dispute between an owner or occupier of a lot and the body corporate for a community titles scheme is a dispute which may be resolved under the dispute resolution provisions of the Act.

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)).

Decision

The owners of lot 5 are seeking the following orders against the owners of lot 8:

• Repair the leaking shower recess in lot 8;

• To locate and repair any other sources of water leakage from lot 8 through the concrete floor into lot 5.

I note from the plumber’s report that the source of the leakage into the lot 5 bathroom is most likely the shower cubicle upstairs in lot 8. The plumber has noted that grout is missing where the floor of the shower meets the walls in the shower cubicle and this appears to be a major problem as water appears in unit 5 ceiling in the same locations.

I note that although the major leak appears to be in the bathroom area, water is also leaking through the concrete ceiling near the sliding door in lot 5 and the middle of the living area.

Relevantly, section 160 of the Act provides:
The regulation module applying to a community titles scheme may impose obligations about the condition in which lots included in the scheme must be maintained.

In this regard, section 120 of the Standard Module provides:
120 Obligations of owners and occupiers--Act, s 160
(1) An occupier of a lot included in the scheme must keep the parts of the lot readily observable from another lot or common property in a clean and tidy condition.
(2) The owner of a lot included in the scheme must maintain the lot in good condition.
(3) The owner’s obligation under subsection (2) to maintain the lot in good condition does not apply to a part of the lot the body corporate is required under this regulation to maintain in good condition
(4) The owner of a lot included in the scheme must maintain the utility infrastructure within the boundaries of the lot, and not part of common property, in good condition and, if it is in
need of replacement, must replace it.

The owner of lot 8 has not challenged the applicants’ statements and the plumber’s report, although he has had the opportunity to do so. I accept that water is continuing to leak through the concrete slab floor of lot 8 which also constitutes the ceiling of lot 5. Given the obligation on owners to maintain their lots in good condition, I propose to order that the owner of lot 8 take action to repair the leaking shower recess in lot 8, and also locate and repair any other sources of water leakage from lot 8, where the repair of such leakage is the responsibility of lot 8 under section 120 of the Standard Module.

Where the source of the leak is within a boundary structure such as a concrete floor, the body corporate is responsible for the cost of repairing such leakage^[1]. Therefore, should the plumber determine that leakage can also be attributable to defective utility infrastructure located within the concrete floor boundary structure, the owner of lot 8 should notify the body corporate, so that the body corporate can attend to any repairs that are the responsibility of the body corporate.

---

^[1] see section 109 of the Standard Module Regulation and section 20 of the Act.