Sailport [2007] QBCCMCmr 609 (30 October 2007)

Last Updated: 12 November 2007

REFERENCE: 0360-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	2463
Name of Scheme:	Sailport
Address of Scheme:	42 - 56 River Esplanade MOOLOOLABA QLD 4557

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

Brendan Nugent, an Owner(s) of lot 3

I hereby order that the application for an order that the body corporate reimburse the applicant for the cost of replacing a sliding door is dismissed.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0360-2007

"Sailport" CTS 2463

Application

Sailport Community Titles Scheme (Sailport) is a 35 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 building units plan (now known as a building format plan).

This application is by Brendan Nugent, an owner of lot 3 (applicant) seeking orders against the body corporate for Sailport (respondent). The applicant is seeking reimbursement of the cost in replacing a sliding door frame and assembly.

Submissions

The applicant’s main submissions were to the effect that:

• The door frame has failed and the entire door and frame needed to be replaced at a cost of $3,938;

• The door is situated in the external wall of the building between the lounge room and an exclusive use terrace area; and

• Building consultant advice indicates that the body corporate may be responsible as the door is part of the external face of the building but the body corporate manager has said it is not a body corporate matter.

The body corporate’s main submissions were to the effect that:

• The crux of the matter is the identification of the boundary between the applicant's lot and the common property over which the body corporate must assume responsibility for maintenance and safety. On upper floors the relevant boundary is the edge of the balcony including the balustrades but not including the sliding doors leading onto the balcony. On the ground floor the relevant boundary is the edge of the exclusive use terrace areas including the dividing fence between the courtyard and common property but not the sliding doors between the unit and the courtyard;

• It is fair and reasonable that the maintenance of items within the courtyard, including the sliding doors on the boundary between the unit and the courtyard, should be at the owner's expense. This is because persons who the body corporate should ensure the safety of or take responsibility for damage are excluded both legally and physically from the exclusive use courtyard areas; and

• The committee reviewed section 108 and 122 of the Accommodation Module and concluded that the provision requiring the body corporate to maintain doors only applied to doors on the boundary of a lot and non-exclusive use common property otherwise the maintenance would have been specifically excluded under section 122(3). The committee is convinced it made the best and fairest decision on behalf of all body corporate members.

Other owners have also provided submissions. One of these submissions refers to a previous order in which an adjudicator determined that louvred doors in a basement exclusive use area were improvements that the owner was required to maintain.^[1] Another owner made a submission to the effect that problems with his own sliding door leading onto his balcony were his responsibility so the applicant should also take responsibility for the applicant's own sliding door.

Decision

Investigation and findings

I have reviewed a copy of the plan for the scheme and the community management statement that describes the exclusive use areas in addition to reviewing the submissions. I conclude that:

1. Parts of the sliding door frame had corroded and required replacement, based primarily on the report from Independent Building Inspections;

2. The entire door required replacement due to unavailability of a replacement section, based on the report from Independent Building Inspections and the applicant's submissions;

3. The door is located on the exterior face of the building leading from the applicant's lounge to a common property exclusive use area granted to the benefit of the applicant's lot. This conclusion is based on the applicant's submissions and a review of the community management statement;

4. Based on the submissions and the plans, the door is effectively on the boundary between the applicant's lot and the applicant's exclusive use area. Depending on the degree to which the door is inset into the wall and the exact surveyed boundaries of the exclusive use area the door may be, partly or wholly, within the lot, on common property not covered by exclusive use and/or within the common property exclusive use area; and

5. Based on the submissions and the plans, other owners on higher floors have similar sliding doors leading from the interior of their lot to balcony areas that also form part of their lot.

Maintenance responsibilities

Relevant provisions of the Accommodation Module are as follows:

108 Duties of body corporate about common property--Act, s152 [SM, s 109]

(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 airconditioning 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 airconditioning 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.

122 Conditions and obligations under exclusive use by-law--Act, s 173 [SM, s 123]

(1) If the owner of a lot included in the scheme to whom rights are in the first instance given under an exclusive use by-law agrees in writing, the by-law may impose conditions (which may include conditions requiring the owner to make a payment or periodic payments to the scheme’s body corporate or the owners of lots included in the scheme, or both).

(2) An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use or other rights are given responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.

Examples of operating cost for part of common property--

Cost of providing lighting to the part of common property.

(3) However, if the lot was created under a building format plan of subdivision, in the absence of other specific provision in the by-law, the owner of the lot is not responsible for--

(a) maintaining in good condition roofing membranes that--

(i) are on the part of the common property to which the by-law applies; and

(ii) provide protection for lots or common property; or

(b) maintaining in a structurally sound condition any of the following elements of scheme land that are part of a structure that is on the part of the common property to which the by-law applies and is not constructed by or for the lot owner--

(i) foundation structures;

(ii) roofing structures providing protection;

(iii) essential supporting framework, including load-bearing walls.

The applicant's exclusive use area is granted by by-law 17 recorded in the community management statement. This by-law provides that:

The occupier for the time being of Lot 3 shall be entitled to the exclusive use to the rights and enjoyment of that part of the common property as is delineated and which has the number 3 in the plan annexed hereto and marked with the letter "A" with the owner of the said Lot being responsible for the maintenance of and operating costs for that part of the common property in respect of which he has the exclusive use to the rights and enjoyment.

Responsibility for doors between a lot and exclusive use area unclear

Unfortunately, the by-law and legislative provisions leave some uncertainty as to who is responsible for maintaining doors and windows that lead onto an exclusive use area.

The view that would support the applicant's position is that section 108(2)(a)(ii) Accommodation Module places the body corporate under a specific responsibility to maintain the door that cannot be overridden by general conditions in the by-law or under section 122(2) of the Accommodation Module.

The view taken by the committee was effectively that a requirement that an owner maintain their own exclusive use area under the by-law or under section 122(2) of the Accommodation Module effectively transfers any maintenance obligations of the body corporate to the owner concerned and is similar to if the area was part of the owner's lot. The committee's view is that a door between a lot and its exclusive use area should be treated the same way as a door between the interior of a lot and a balcony that forms part of the same lot. The argument was put that if the body corporate was still expected to maintain doors on this boundary between parts of the lot and parts of the exclusive use area then that would have been included as one of the specific exemptions in section 122(3) of the Accommodation Module.

Previous decisions of adjudicators tend to favour the view that an obligation placed upon an owner for the maintenance and operating costs of an exclusive use area effectively transfers the obligation to maintain common property granted by each exclusive use by-law, to each of the owners of the respective lots.^[2] This view appears to have been supported by a subsequent decision of the legislature to restore to the body corporate certain responsibilities by the addition of section 122(3) effective from 1 December 2003. The explanatory notes referring to the insertion of this subsection state that "it is generally not appropriate that, in a building format scheme, this obligation to maintain common property [of the owner to whom exclusive use is granted] applies to the maintenance of those parts of the common property that exist for shelter and support for the general benefit of the scheme"^[3] and this explains why any need for general structurally maintenance or maintenance of roofing membranes was excluded. Any uncertainty about the reason for section 122(3) failing to specifically refer to doors within boundary structures appears best resolved in favour of a view that the legislature did not consider it unfair for owners to be required to maintain doors that were primarily for their own benefit rather than for the general benefit of the scheme.

I therefore conclude that the intention of section 122 of the Accommodation Module is that individual owners who are granted exclusive use on condition they maintain the exclusive use area are expected to maintain any doors, windows or other parts of boundary walls that fall within the area. This overrides any general maintenance responsibility of the body corporate under section 108 of the Accommodation Module. However, individual owners are specifically excused from continuing obligations of the body corporate under a building format plan to maintain roofing membranes and to maintain the roof, foundations and walls in a structurally sound condition (Accommodation Module 122(3), 108(2)(a)(ii), 108(2)(b)).

In short, if an individual owner is granted an exclusive use area it will generally be appropriate from a maintenance perspective that that area be treated as though it is part of the owner's lot and any doors, windows, or railings that are between the lot and the exclusive use area will be maintained by the owner as though those item are within the boundaries of the lot rather than on the boundary of the lot and common property. In this instance the applicant's sliding door would be maintained by the owner of the lot as though it was a sliding door between a living area of a lot and a balcony that forms part of the same lot.

What if sliding door is wholly or partly outside the boundaries of the exclusive use area?

One final alternative requiring consideration is that the door in question might fall just outside the boundaries of the exclusive use area, or partly outside those boundaries. For all practical purposes there is no gap between the lot boundary and the exclusive use area for the lot. However, depending on the degree to which the door may be inset within the wall and the exact results of any survey it is at least possible that all or part of the door is outside the boundary of the exclusive use area. If this issue was determinative of whether or not the owner was required to maintain the door then it would seem prudent to obtain a report from a surveyor on the issue.

However, in investigating a dispute an adjudicator must act as quickly, and with as little formality and technicality, as is consistent with a fair and proper consideration of the application (Act, 296). An adjudicator is not required to make use of any more of the investigative powers that are necessary in order to carry out an effective investigation^[4] and an adjudicator is not required to embark on some far ranging investigation of the underlying dispute.^[5] Further, an adjudicator is required to make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276).

It would perhaps be preferable if it were completely clear where the sliding door is located and if the legislation made completely clear what was intended if a door was wholly or partly outside the formal boundaries of the exclusive use area. However, in all the circumstances, it does not seem just and equitable that responsibility for maintenance of the door depends on a question of a few centimetres as to whether the door falls just within or just outside the boundaries of the exclusive use area as defined.

Even if the manner in which the exclusive use area is defined means that the door is wholly or partly outside the boundaries of the exclusive use area, the door is still practically the doorway between the applicant's lot and the applicant's exclusive use area. By accepting the benefit of the exclusive use area the applicant has obtained exclusive use of an external area as if it were part of his own lot. The sliding door is effectively "internal" to this greater area. The legislation specifically exempts the applicant from maintenance of certain parts of an exclusive use area that exist for shelter and support for the general benefit of the scheme (Accommodation Module, 122(3)). However, the sliding door is solely for the benefit of the applicant in the same way that the owner of the lot above has the sole benefit of the sliding door leading onto the balcony of the lot above. It is just and equitable in the circumstances that the applicant accepts full responsibility for the maintenance of the door that leads from his lot to the exclusive use area for his lot.

Order

For these reasons, the application is dismissed.

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^[1] Eliza Towers, Order 0515-2004, PJ Hanly, 11 February 2005.
^[2] Parkview Lodge, Order 0442-1999, RA Meek, 26 October 1999; Hillside Gardens, Order 0215-2001, CG Young, 3 July 2001.

^[3] Explanatory Notes, Body Corporate and Community Management Legislation Amendment Regulation (No.1) 2003 at page 132.

^[4] Hablethwaite & Anor v Andrijevic & Ors [2005] QCA 336, Jerrard JJA, Keane JJA & Cullinane J, 9 September 2005 at paragraphs 17 and 31.
^[5] McColl v The body corporate for Lake View Park [2004] QCA 44, de Jersey CJ, Davies & Williams JJ, 27 February 2004 at paragraphs 29 to 32.