Huntington Apartments [2007] QBCCMCmr 704 (21 December 2007)

Last Updated: 22 February 2008

REFERENCE: 0701-2007

ORDER OF AN ADJUDICATOR

MADE UNDER PART 9 OF CHAPTER 6

BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

Number of Scheme:	11170
Name of Scheme:	Huntington Apartments
Address of Scheme:	10 Marine Parade SOUTHPORT QLD 4215

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

Florence Scott, the Owner(s) of lot 25

I hereby order, regarding the directory board erected following the committee meeting of 15 February 2007 (directory board), that unless the committee passes a resolution specifically authorising the changes made to the directory board, Asset Loan Investments Pty Ltd ACN 113 135 452 (Assetloan) must within two months: 1. Relocate the directory board to the position that the sign was originally erected; and 2. Remove the white vinyl backing from the sign and either leave the sign as 'clear glass' or install a vinyl backing that matches the colour of the wall on which the sign is installed and/or is a colour specifically approved by the committee. I further order that any damage to the wall or paintwork caused by the affixing or removal of the directory board must be repaired by Assetloan.

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0701-2007

"Huntington Apartments" CTS 11170

Application

Huntington Apartments Community Titles Scheme (Huntington) is an 83 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Standard Module Regulation (Standard Module).

This application is by Florence Scott, owner of lot 25 (applicant) seeking orders against the body corporate for Huntington (body corporate). The orders relate to the approval of a directory board installed by Asset Loan Investments Pty Ltd, the owner of lots 83 and 84 (Assetloan). The applicant is seeking the removal of this allegedly unauthorised signage.

Decision

Investigation and Submissions

Submissions

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

• There are two non-residential lots in the scheme that have been converted into offices for multiple businesses;

• On 25 July 2006 the applicant lodged a motion proposing to prevent signage on common property that could be seen from outside the scheme land;

• On 25 May 2007 an unauthorised sign was installed on an exterior common property wall of the building listing the office tenants;

• On 26 May 2007 the annual general meeting approved the motion to prevent signage that could be seen from outside scheme land;

• Minutes of a 15 February committee meeting indicate the committee verbally approved internal signage on the inside wall of an entry foyer but the signage was erected in an exterior wall that can be seen from outside scheme land; and

• If the committee really approved exterior signage then the committee has deliberately mislead owners and it is unethical for the committee to approve exterior signage while a motion.

Photographs of the sign were provided with the application.

All owners were given an opportunity to provide written submissions. These submissions were to the effect that:

• Due process does not seem to have been followed and any approval should clearly specify the size and location of signage, including a limitation on the size of letter and logos. I personally have no objection to a directory board but this should not be used as an advertising panel;

• I agree that the sign in question is acceptable as discussed at the committee meeting but would not want this precedent to permit further unsightly signage external to the building;

• The sign in question is not offensive and the need for this signage is understood to make it possible for clients to find where they have appointments. However, Asset Loans Ltd cannot be trusted not to erect further signage;

• Written approval should have been obtained from the body corporate prior to Asset Loans Ltd affixing the signage;

• A motion should be put to the body corporate, together with a diagram;

• The Tenants Directory Board has been moved to the extreme outside of the wall on which it had originally been placed with committee agreement. It is now much more visible; and

• There is a need for a Directory Board and there was one there at the time of the conciliation conference but since then another board has replaced the first one making it more visible from outside scheme land and it appears that correct procedures have been bypassed.

Further enquiries

I made some specific enquiries of Assetloan regarding the allegations that the original directory board was replaced with a second board in a different position that is more visible from outside scheme land.

Assetloan provided a written response to the effect that:

• Assetloan pays approximately one third of the body corporate fees in relation to the entire building and the first and second floors are dedicated office use only;

• The sign is of the nature of a directory board and has been advantageous to the manager of the apartments as the manager is no longer providing information as to the whereabouts of the office suites;

• There is no 'second sign'. A 'clear glass' board was erected in May 2007 with the authority of the body corporate as per the minutes of 19 February 2007. The existing sign was erected on the same spot, with the clear glass board taken down to have vinyl signage affected to it, then re-fixed. This 're-fixing' was on 7 September 2007 with the authority of the body corporate as per the minutes of 19 February 2007; and

• The cost of purchasing and installing the board was $248.40.

Some additional photographs of the sign were provided.

Issues for determination

Applicable law

The legislation includes provisions to the effect that:

• The body corporate may authorise an owner to make an improvement to the common property for the benefit of the owner's lot (Accommodation Module, 113);

• Improvements to common property for the benefit of an owner's lot must be authorised by special resolution unless the improvement is a minor improvement, does not detract from the appearance of any lot or the common property, and is not likely to promote a breach of occupier duties (Accommodation Module, 113(2)); and

• Restricted issues for the committee include issues reserved by ordinary resolution for decision by ordinary resolution (Accommodation Module, 24).

Summary of issues

The issues for determination can be summarised as follows:

1. Did the committee authorise installation of the directory board?

2. If so, did the committee act within its authority in authorising this installation?

Committee authorisation

The minutes of the committee meeting on 15 February 2007 indicate that the committee granted a request from Assetloan "to erect a sign on the inside wall of the Level 1 entry foyer. The sign would cost approximately $186 and list the names of the occupants of Level 1 and 2".

It is very important that motions and resolutions specify and make clear all relevant details. If the resolution makes clear what is intended then this prevents disputes at a later stage.^[1] The above authorisation is of a very general nature but I accept submissions from Assetloan that a 'clear glass' board was erected in May 2007 pursuant to this authorisation. Information provided by Assetloan indicates the sign is approximately one metre high and 65 centimetres wide. Photographs show that this sign is affixed to a wall that forms part of the exterior of the building but within a foyer leading to an entry door rather than on the 'outer face' of the building. I am prepared to accept that the affixing of this sign in May 2007 reasonably complies with the description "inside wall of the Level 1 entry foyer" as authorised by the committee. In particular, if the sign was intended to be erected on a wall actually inside the lot itself then no committee authorisation would have been needed in the first place. Further, I accept that the affixing of vinyl signage containing the names, logos and suite number of the occupants reasonably complies with the description "list the names of the occupants of Level 1 and 2" as authorised by the committee.

However, I do not accept that the "re-fixing" on 7 September 2007 complies with any authorisation given by the committee. I have compared photographs supplied by the applicant and photographs provided by Assetloan. I have noted the position of the original 'clear glass' board as compared with the existing 'white' directory board with reference to the edge of the wall and a visible indentation or join in the wall. I have concluded that the "re-fixing" resulted in a directory board that is both significantly more visible and in a different position to the original 'clear glass' board. In this respect I accept submissions to the effect that the directory board is now in a position that is more visible from outside scheme land and I do not accept submissions from Assetloan that the 'clear glass' board was erected "on the same spot" that the existing sign is now on. I note that a penalty of up to $4,500 can be sought against Assetloan if it can be shown that the information it provided in its letter of 18 December 2007 was known to be false or misleading.

Further, I do not accept that this "re-fixing" and the installation of a white vinyl backing can be properly said to be authorised by a committee meeting of more than six months earlier. This backing and the relocation significantly changes the appearance and visibility of the sign. The applicant should have sought a further approval from the committee before making this significant change in refixing the sign.

Was the initial authorisation within the committee's authority?

Minutes of the annual general meeting in May 2007 indicate that owners passed a resolution "That the Body Corporate maintain the quality and appearance of the Huntington Building exterior common property, with no additional Advertising Signage on the common property building and surrounds which is visible from outside the Scheme land".

Based on the ordinary meaning of the words "advertising signage", I have concluded that the above resolution would not apply to a "directory board" of the type installed by Assetloan. I have taken into account the apparent purpose of the board and the size of the logos including the minimal visibility from the street in concluding the directory board is not "advertising signage". I do not therefore consider the passing of the above resolution could have required the issue of the directory board to be put to owners in general meeting even if that resolution had been passed before the directory board was initially installed.

I am also satisfied that the directory board is otherwise a minor improvement that the committee has power to authorise (Accommodation Module, 113). I have looked that the cost of the board in this respect. I have also considered the size and limited impact of the original sign on the external appearance of the scheme in concluding that it did not detract from the appearance of any lot or the common property.

Based on the above, I conclude that the committee acted within its authority in initially approving the erection of the sign at its February Meeting. However, the difficulty for Assetloan is that it subsequently acted in September to modify the position and appearance of the sign and I am not satisfied that these subsequent modifications were ever approved by the committee.

Conclusion

I am satisfied that the committee had authority to authorise the installation of a directory board as it purported to do in February 2007. From a legal perspective, the board is a minor improvement to common property that does not detract from the appearance of the scheme (Accommodation Module, 113).

However, I have formed the view that Assetloan acted unilaterally to have the board modified and reaffixed in a different position in September 2007. This was done without committee authorisation and contrary to the legislation.

In the circumstances, I am satisfied that it is just and equitable to require Assetloan to have the directory board relocated to its original position and have the white vinyl backing removed or replaced with a colour matching the colour of the wall so that the sign is not as obvious from outside the scheme. Alternatively, Assetloan should be entitled to seek permission from the committee specifically authorising any changes. In this respect, I note that any changes that significantly affect the visual appearance of the directory board should be authorised by the committee but that I do not consider it necessary for Assetloan to seek committee approval for minor changes such as updating the directory board when there are changes to the names or locations of occupiers of the commercial lots.

I further note that Assetloan should be required to repair any damage that has been caused to the wall from the affixing or removal of the directory board.

Order

For these reasons, I make the order above.

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^[1] This office provides a fact sheet to assist owners to submit 'clear' motions for a body corporate meeting. This is accessible on the website for the Office of the Commissioner for Body Corporate and Community Management. Alternatively, the Information Service for the Office is contactable on 1800 060 119.