Allawah [2007] QBCCMCmr 669 (4 December 2007)

Last Updated: 4 January 2008

REFERENCE: 0904-2007

INTERIM ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	14060
Name of Scheme:	Allawah
Address of Scheme:	1 The Esplanade SURFERS PARADISE QLD 4217

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

the body corporate

I hereby order that the body corporate for Allawah (body corporate) may, with by 48 hours' written notice, enter lot 29 owned by Harry Habul (respondent) to the extent reasonably necessary to replace the exterior windows on the southern and eastern sides of the unit. A subsequent order will be made, if necessary, in respect of any damage caused. This is an interim order and will remain in effect for a period of not longer than three months. It is the responsibility of the applicants to apply to extend this order if no final determination has been made within that period. This order will automatically lapse upon a final order being made or this application being withdrawn.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0904-2007

"Allawah" CTS 14060

Application

Allawah Community Titles Scheme (Allawah) is a 48 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 building units plan (now known as a building format plan).

This is an application by the body corporate for Allawah (applicant) against Harry Habul, owner of lots 29 and 30 (respondent). The applicant seeks orders authorising entry into the respondent's lot as reasonably necessary to carry out refurbishment works including the replacement of balcony sliding doors, the checking of balconies for concrete cancer, replacement of tiles, and the replacement of exterior windows (works).

The body corporate has lodged an application for an urgent order authorising access on the basis that this access is required for compliance with project time frames. In all the circumstances, I am satisfied that it is appropriate to make an interim order authorising urgent access but further information will be required on some issues raised before a final determination can be made to resolve all issues raised.

Decision

Investigation and Submissions

Submissions

The grounds in support of the application, provided on behalf of the body corporate, were to the effect that:

•	The works had been approved by special resolution;
•	Access is urgently required to the respondent's apartments to perform the work on schedule; and
•	The respondent has refused to grant access as requested.

The respondent was given an opportunity to provide written submissions. These submissions were to the effect that:

• He has already replaced the balcony sliding doors, balcony tiles and windows in July 2002. In particular, he had removed the old tiles, cleaned the concrete under the tiles, inspected the concrete for rust, waterproofed the underlying surface and retailed the balcony area in a way that was consistent with the directions given by the body corporate's architect and no sign of any rust was found;

• He had provided a letter to the committee seeking approval to do this on 6 March 2002 and the resident caretaker told him at the time that the body corporate had approved these works;

• The body corporate has no right to deal with any items of his private property including his balcony tiles and glass sliding doors;

• If the body corporate wants to inspect the concrete slab beneath the tiles he will allow it provided the body corporate reinstate or replace the tiles with the same quality tiles and cover the cost of any damage; and

• The exterior windows were replaced at great cost and expense in July 2002 with the full knowledge and consent of the body corporate. If the body corporate wants to replace those windows then he will allow it provided the body corporate reimburses the cost of $9,075 he spent when he installed the windows and provided the body corporate covers the cost of any damage.

Further discussions

I held a teleconference with the legal representatives of both parties on 26 November 2007. By letter dated 28 November 2007 I informed the parties of some preliminary views and requested further information. The parties provided some further information and submissions by letters dated 27 November 2007 and 29 November 2007.

Issues for determination

Applicable law

The legislation includes provisions to the effect that:

• Generally, an owner of a lot must maintain their own lot in good condition (Standard Module, 120);

• Generally, the body corporate is responsible for maintaining common property in good condition (Standard Module, 109);

• Under a building format plan of subdivision, the body corporate has a number of additional maintenance obligations. This includes keeping the roof, foundations and essential supporting framework in a structurally sound condition. It also includes maintaining in good condition certain items on the boundary between the lot and the common property, including doors, windows and balustrades (Standard Module, 109(2));

• A person authorised by the body corporate may, subject to conditions, enter a lot to inspect the lot and find out whether work the body corporate is authorised or required to carry out is necessary or enter to carry out work the body corporate is authorised or required to carry out (Act, 163).

Summary of issues

The issues for determination can be summarised as follows:

1. Regarding the windows, whether the body corporate is authorised to replace the windows and whether access to lots 29 and 30 should be granted for this purpose?

2. Whether the respondent should be entitled to compensation in relation to the windows?

3. Whether the body corporate should pay for any damage caused?

4. Regarding concerns about concrete cancer, whether access should be granted to lots 29 and 30 to allow the body corporate to inspect the balcony to determine if work is necessary or perform work the body corporate is authorised or required to carry out?

5. Whether the body corporate should pay for any damage caused?

6. Regarding the balcony doors and tiles, whether the body corporate is authorised to replace these items and whether access to lots 29 and 30 should be granted for this purpose?

7. Whether the respondent should be entitled to compensation in relation to the balcony doors and tiles?

Replacement of windows

Access to replace

Based on the respondent's submissions and an inspection of the plans, I am satisfied that lot 30 does not have any exterior windows that require replacement by the body corporate. However, lot 29 has exterior windows on the southern and eastern sides.

I am satisfied that the body corporate has an obligation to maintain the exterior windows of lot 29 and further that the body corporate has passed an appropriate resolution to replace all these windows. The respondent has stated that he had the windows replaced himself a few years ago and his windows are still in good condition. However, the respondent conceded that other windows in the building needed replacement and I am satisfied that it is reasonable as part of the maintenance and refurbishment process that the body corporate relace every window rather than just the individual windows that require immediate replacement. This is partly because there will be efficiencies in the body corporate replacing every window at the same time. It is also because the body corporate has confirmed that the windows being installed are significantly different to the respondent's windows both in terms of safety features and visual appearance. The body corporate has also confirmed that it has consulted the building and site superintendent and that access to the lot will be required for the installation of the windows.

In the circumstances, I am satisfied that access is required to lot 29 for window replacements that the body corporate is authorised to carry out. I am satisfied that the body corporate would have a power under the act to authorise appropriate persons to enter the lot on seven days' written notice (Act, 163). In the circumstances of this application, the respondent is already aware of the desired access and I am further satisfied that the access is relatively urgent to comply with project time frames. I therefore consider it just and equitable to order that the body corporate is entitled to reasonable access upon 48 hours' written notice.

Compensation

The respondent submits that he replaced his external windows at his own cost in 2002. While these windows are relatively new, I am satisfied that these windows should be replaced at the same time that the body corporate is replacing every window in the building and it is not really arguable that the respondent should be excused from contributing to the new windows. In particular, owners may have been aware for some time that there were problems with a number of windows. However, it is only recently that owners resolved to replace all windows in the building and passed a resolution selecting the replacement windows. If the respondent had complained to the body corporate about his windows in 2002 then it seems unlikely that owners would have acted any sooner to vote to replace all windows in the building. Rather, it seems likely other owners would also have been affected by windows of a similar age and poor condition but those owners have waited for a decision in general meeting rather than replacing the windows themselves.

There is a potential that the body corporate did obtain some small benefit from not having to maintain the original windows between 2002 and the upcoming replacement. However, the respondent has not provided any evidence to quantify this cost or even suggest that this cost would have been significant. Further, it is unfortunate that the respondent appears to have been unaware that the external windows were the responsibility of the body corporate. However, an earlier order made by this office indicates that the respondent was made that window replacement in external walls raised questions of unauthorised interference with the common property^[1] and it was not a legal responsibility of the committee to tell the respondent that at some future time owners may collectively decide that the body corporate's maintenance obligations should be met by replacement of all exterior windows within the complex. In any event, the initial replacement of windows by the respondent appears to have been viewed as an improvement voluntarily made by the respondent rather than required maintenance and the respondent did obtain some benefit from the use and enjoyment of the new windows for approximately five years.

In all the circumstances, it is appropriate that the body corporate now replaces the external windows with windows consistent with those of all other lots. I am not satisfied that it is just and equitable to order the body corporate to provide any compensation to the respondent regarding this replacement of his windows.

Responsibility for any damage caused

An adjudicator must make an order that is just and equitable in the circumstances to resolve a dispute (Act, 276). One concern raised by the respondent is that that workman replacing the windows may damage his lot in the process. An order is therefore sought to the effect that any damage to the window sills or otherwise must be repaired by the body corporate.

In the absence of special circumstances, a just and equitable order would require that any damage caused by the body corporate is also rectified by the body corporate. However, there may be special circumstances where it would be just and equitable that the owner contributes to the costs of rectifying damage caused by the body corporate. For example, if the damage was unavoidable and rectifying the damage was going to result in the owner receiving "new for old" then it may be just and equitable for the owner to contribute. Alternatively, if the owner required certain fittings to be replaced where those fittings were significantly more expensive than comparable fittings on other lots then it may not be just and equitable to require all owners to contribute to the additional costs of those particular fittings.

In the present instance, there do not appear to be any special circumstances that would displace the general rule that the body corporate should rectify any damage caused in replacing the windows. A supplementary submission from the body corporate's lawyers places a lot of emphasis on the potential that owners may have unlawfully or neglectfully installed improvements that might be damaged. However, there is no evidence that the respondent has unlawfully or neglectfully installed any improvements or even any evidence suggesting any basis upon which improvements to his own lot might be unlawful or neglectful.

My preliminary view is that the body corporate should repair any damage caused by the replacement of the windows. However, in the circumstances, it appears appropriate to wait to see if any damage occurs and then consider the individual circumstances before making any final order as necessary. Therefore, I will grant an interim order allowing access to replace the windows but not make any order about rectification of any damage until a later stage.

Concerns about concrete cancer

Access to inspect

Lots 29 and 30 both have balconies on the northern side, as shown in a drawing provided by the respondent. The plans indicate that these balconies are within the lot boundaries and form part of the lot rather than common property for the scheme.

Because the balcony forms part of the lot, the owner of the lot has the primary responsibility for maintaining the balcony tiles in good condition. However, under a building format plan, the body corporate still has a responsibility to ensure that the balconies are maintained in a structurally sound condition (Standard Module, 109(2)(b)(iii)). This means that the body corporate will be responsible for the repair of any concrete cancer within the balcony floor.

The body corporate has provided submissions and a letter from Morgan Consulting Engineers dated 14 May 2004. This material indicates that the building is over thirty years old and tends to indicate that a number of balconies have problems with the balcony tiling and potentially suffer from concrete cancer. In these circumstances, it seems reasonable that owners have adopted a general recommendation for removal of the existing balcony tiles, repair as required, and sealing of the areas prior to retiling.

However, I accept submissions from the respondent to the effect that, in 2002, he removed the old balcony tiles, cleaned the concrete under the tiles, inspected the concrete for rust with no sign of any rust being found, waterproofed the underlying surface and retiled the balcony area in a way that was consistent with the directions given by the body corporate's architect. In particular, I refer to a previous order from this office that indicates the committee was satisfied the respondent's renovations could proceed^[2] and to a letter from the respondent to the committee dated 17 May 2005 that describes the work performed.

In light of this information I have formed a preliminary view that, at the present time, there is no reasonable basis for a concern by the body corporate that the balconies of lots 29 or 30 are not presently in a structurally sound condition or are requiring structural maintenance. In a letter dated 28 November 2007 the body corporate was requested to provide any information the body corporate has raising concerns specifically in respect of the respondent's balconies or, alternatively, to advise if the body corporate wishes to seek access to the respondent's balconies to perform a non-invasive inspection and produce an engineers report specifically relating to the likelihood that the respondent's balconies require work to be performed. The letter from Morgan Consulting Engineers dated 14 May 2004 that was provided by the body corporate is of a general nature and does not satisfy me that it is just and equitable to grant an order allowing the body corporate to access the respondent's lots to carry out any work related to the structural integrity of the balconies. This may change as more information becomes available. However, I am not satisfied that it is appropriate to make an interim order allowing access at this time.

Responsibility for any damage caused

The question of responsibility for any damage caused to the respondent's tiling does not arise unless there are reasonable grounds for the body corporate to perform an invasive inspection of the balcony.

As stated above, a just and equitable order would normally require that any damage caused by the body corporate is also rectified by the body corporate. However, in the circumstances, it appears appropriate to wait to see what transpires before determining this issue.

Balcony door and tiles

Access to replace

As indicated above, because the balcony forms part of the lot, the owner of the lot has the primary responsibility for maintaining the balcony in good condition. Apart from any need to perform work to maintain balconies in a structurally sound condition, there is nothing in the application that satisfies me the replacement of the balcony doors and tiling for lots 29 or 30 is work that the body corporate is authorised or required to carry out.

At this time, I am not satisfied that the body corporate has any right to access lots 29 or 30 to replace balcony doors or tiles.

Compensation

I have formed a preliminary view that, if the body corporate does not need to replace the balcony doors or tiles for lots 29 or 30 then the body corporate should reimburse the respondent the amount of any contributions paid by the respondent towards the costs of replacing the balcony doors or balcony tiles.

However, in the circumstances, it appears appropriate to wait to see what transpires before determining this issue.

Order

At this stage, I am satisfied that it is appropriate to make an interim order authorising the body corporate to, with 48 hours' written notice, enter lot 29 to the extent reasonably necessary to replace the exterior windows on the southern and eastern sides of the unit.

For these reasons, I make the interim order above. Final orders in relation to the other matters in dispute as referred to above can be made in due course if the parties are unable to resolve those issues themselves.

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^[1] Allawah, Interim Order 0399-2002, CG Young, 16 July 2002.
^[2] Allawah, Order 0399-2002, CG Young, 03 September 2002.