Milton Gardens [2009] QBCCMCmr 403 (16 October 2009)

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

I hereby order that the application for orders

“1 Roof - licensed roofing inspector corrected to the professional standard U. 1;
2. Eaves and guttering to be inspected repaired, painted to standard Unit 1;
3. Downpipes (3) replaced rusted through Unit I replaced 3);
4. Repair ent,y and security doors as they slam every time that is closed (sic);
5. Driveway and footpath need to be looked at and redeveloped due to clay payers sinking and eroding, allows water to travel up and may flood garage as the driveway has receded;
6. Block (sic) or broken storm water pipes inspected by plumber;
7. Connect water meter to units.”

are dismissed

APPLICATI ON

This is an application dated 28th April 2009 and amended on 29th April 2009 and 14th September
2009 by Bozena Slaski (the Applicant) owner of Lot 1 in the scheme against Edward Kelly (the
Respondent) owner of Lot 2 in the scheme, for orders as follows –

“1. Roof- licensed roofing inspector corrected to the professional standard U.1;

4. Repair entry and security doors as they slam every time that is closed (sic);

5. Driveway and footpath need to be looked at and redeveloped due to clay payers sinking and eroding, allows water to travel up and may flood garage as the driveway has receded;

7. Connect water meter to units.”

On 26th June by email to this Office, the Applicant sought to withdraw point 7 owing to the cost and difficulty involved.

“Milton Gardens” CTS 7500 is a community titles scheme governed by the Body Corporate and Community Management Act 1997 (the Act) and the Body Corporate and Community Management (Standard Module) Regulation 2008 (Standard Module). There are only two lots in the scheme, created under a Building Unit Plan of subdivision.

Section 276(l) 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

(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)).

The application was commenced against the owner of Lot 2 when the owner was Melina Bowles (Ms Bowles). On 25th May 2009 the Applicant advised this Office that Ms Bowles had put Lot 2 up for sale. The Respondent became the owner of Lot 2 on 7th August 2009. Mr Kelly was substituted for Ms Bowles in this application pursuant to section 239C Act and notified of the Commissioner’s decision on 14th September 2009.

SUBMISSIONS

The Applicant says that Lot 2 has been in a poor state of repair for some time, approximately 3 and a half years before making her application, and that the Applicant frequently asked the Respondent’s predecessor in title to maintain Lot 2 “to a level that’s with [her] unit.”

The capping of the roof is not to Australian Standards of Workmanship, the guttering and downpipes are rusting, the eaves and other exterior surfaces are in dire need of painting. The Applicant wrote to the Respondent’s predecessor in title about these matters. The Applicant has replaced her own gutters, and has painted her roof and eaves.

Lot 2 was rented out at the time of making the application.

The Applicant would also like to set up a sinking fund in future, and hold proper meetings.

The Applicant provides copies of emails sent to Ms Bowles. On 15th September 2008 the Applicant sought urgent replacement of the rusted downpipes and obtained a quotation for “$420 approx.” On 17th September 2008, she asked Ms Bowles to meet her on site to discuss the maintenance problems pointing out the three downpipes, and asking that she attend to Lot 2’s “half of the roof, gutters, and eaves.” There was no response to this letter.

She wrote again on 15th March 2009 (about the insurance, and pointing out the three rusting downpipes); on 19th March 2009 (about insurance, a bank account for future repairs for common property and the tenants of Lot 2); on 22nd March (again about the behaviour of the tenants), and on 26th March 2009 (again about the behaviour of the tenants.) On 19th March 2009, Ms Bowles replied that she will be “organising a few quotes for the attention to the gutters, downpipes and the paining of the eaves.”

The Applicant sent photographs of the driveway, a downpipe, blistered coating on the roof capping and rust on a gutter.

Mr Kelly on 8th September 2009 said that Lot 2 was fire-damaged when he took it over. He says that the roof was “attended to under the re-insurance notice” and that the inside has been restored, the downpipes have been replaced and that the guttering, facias, eaves and rear downpipe “will be repainted in the next 10 days.” He also proposed to fit a new door piston to the entry door. He intends to rectify faults but will need a reasonable time in which to do so.

He says that the driveway/footpath cannot at present be redeveloped as the Applicant has fenced the common property footpath and restricted access to Lot 2. This is a health and safety concern to him and he hopes that a satisfactory outcome can be negotiated.

By further submission on the same day, the Applicant says that that a registered builder carried out an inspection of the roof prior to him purchasing Lot 2 and “there was no mention of any problems with the root” He said that he did not wish to be substituted as a respondent to the application, since the dispute was between Ms Bowles and the Applicant, nor did he wish to contribute towards a sinking fund.

Following his substitution as the respondent in this application, the Respondent was invited to make submissions on the outcomes sought in the application.

On 17th September 2009 he again stated that repair work would be completed within the next seven days, according to the tradespeople carrying out the work. He says that in respect of the first outcome sought that Lot 2 was inspected by a licenced builder, QBR, licence number 24344 with over 30 years experience of building inspections. prior to his purchase and at his direction. He supplied one page from the inspector’s report about the roof which noted that the condition of the hips and ridges, main body, fascias, and flashings was “Good”.
In respect of the second outcome sought, he again states that the eaves and guttering will be painted within the next seven days.

In respect of the third outcome sought, he says that one downpipe has been replaced, fitted with a new top to the gutter gallery and is due to be painted.

In respect of the security door he says that a new piston has been fitted to the minimum strike on entry which “gives off a normal door close.”

In respect of the driveway, he says that it is still in a good and serviceable condition, although the footpath has been fenced off by the Applicant and is not accessible. He has been unable to negotiate a satisfactory outcome about this with the Applicant.

In respect of the sixth outcome sought, he says that the stormwater pipe has been cleared and is in a working condition.

He feels that the Applicant should be satisfied that such a lot of work has been undertaken since he became the owner of Lot 2. He does not want to set up any financial arrangements with the Applicant because he was told “ there was no body corporate fees or levy.”

The Applicant exercised her right of Reply. She says that the roof has problems with pointing and painting and that it was done by a “home handyman.” The pointing is still malleable after three years, and in places degraded so that water could get in. She does not agree with the building inspector that the surface of the roof is “good.” She did not see the inspector go onto the roof.

She agrees that the eaves and guttering have now been painted, but the rusted downpipes have been repaired and not replaced, as they have been in her lot. She finds the door still noisy when shut “even when quietly done”. She believes the main door or the entry is buckled. The security door still “slams excessively”, and the noise resonates through her wall and window.

The Applicant repeats that the driveway is not “in a sound and serviceable condition.” It is sunken and shows signs of disrepair in many areas. It floods in heavy rain. She blames poor and illogical design for the storm water pipe’s inability to cope. A plumber has recommended that the stormwater pipe be enlarged.

Finally she says that her fence has been approved by the local authority. She speaks of a division of the common property agreed between her and Ms Bowles. She denies the fence blocks access to the Respondent’s lot.

She says that it is essential that the scheme establishes a sinking fund.

The Applicant wrote a further letter to this Office on 22nd September 2009, after the application had been referred to adjudication, saying that she wished to make an adjustment to her application in the light of recent events. This letter has not been accepted as part of this application and arrived well after the time for making submissions had closed.

DETERMINATION

In any application it is a vital element that the applicant proves his or her case to a recognised standard which is the civil standard of proof - “on the balance of probabilities.” Since this is an application against another lot owner, the Applicant will also have to demonstrate that the Respondent has failed to maintain his lot in good condition as required by section 170(2) Standard Module.

The Applicant has had concerns in the past about the poor standard of repair of Lot 2, a duplex, which necessarily closely affects her own joined Lot 1. However, it appears to me that outcomes sought 2, 3, 4 and 6 have been attended to by the new owner, the Respondent, to the best of his ability, and with some speed.

The Applicant says that she can still hear the entry and security doors shutting but provides no professional reports from a sound engineer or any evidence at all about the level of noise and/or frequency of disturbance. It is, unfortunately, very likely that she will hear the security door of the adjoining lot, and the entry door, even as she says, when it is closed quietly. In a duplex, as the Applicant is well aware, owners are going to know largely what is going on in the adjoining lot. Community living is such that neighbours are particularly close together. It is for this reason that the legislation provides protection for occupants if the level of noise becomes such as to be a legal nuisance (section 167 Act) or if it breaches any by-laws of the scheme. Neither is claimed by the Applicant, and I am not satisfied that any noise from the doors is such that is not naturally arising from the necessity of opening and shutting them.

The Respondent has repaired and painted the downpipes and eaves. Whether the pipes have been repaired or replaced is immaterial, as is how much similar repairs cost the Applicant. The obligation on a lot owner is to maintain his or her lot is “good condition” (section 170(2) Standard Module) and it may well be that one householder has higher ambitions for the façade of the scheme than the other.

There is no evidence that the stormwater pipe is not currently effective. The stormwater pipe is a body corporate responsibility, being common property, not a responsibility of the Respondent alone (Section 159 Standard Module). If the body corporate decides that it should provide a larger diameter pipe, then this is a matter that both others, as members of the body corporate must agree.

The first outcome sought is not entirely clear. It seems that the Applicant does not share the view of the licenced building inspector that the roof is in a sound state of repair. She does not point out what she wants corrected, although sends photographs of the ridge capping, and says mastic is still malleable. Whether or not mastic should remain malleable after three years is not within my expertise. Again, if the Applicant claims that the roof is unsound, she should provide evidence, preferably from a professional tradesman, that certain works need doing.

Further, where roof-work is the responsibility of the body corporate, as it will be where two lots share a roof in a Building Unit Plan, the Applicant would then have to demonstrate that the Respondent had been asked to contribute towards the body corporate’s obligation to maintain the roof, and had failed, or refused, to do so.

Again, there is no professional evidence about the driveway which the Applicant alleges is sunken, and liable to flood. The one photograph of the driveway merely demonstrates to me that the driveway is discoloured in places. Further, there is again no evidence that the Respondent, or his predecessor in title, has been asked about the driveway. A letter dated 19th March 2009 sent to Ms Bowles, supplied with the application, says that that the driveway needs to be discussed but the problem is not explained.

Overall then, the application fails. The passing of time, and the change of ownership of Lot 2, has addressed some of the Applicant’s concerns, and she has simply not provided enough or any evidence that the Respondent has failed to maintain his lot in good condition.

In respect of “setting up a sinking fund”, I will make certain remarks which I hope the parties will find helpful. Despite whatever a real estate agent may have told the Respondent, a Building Units Plan is established as a body corporate automatically in the Land Titles Registry and there is no option but that lot owners are members of that body corporate subject to the governing legislation, and with the rights and obligations provided therein.
All community titles schemes, such as Milton Gardens, are required to hold an annual general meeting, at which it is required as a minimum that the members agree on an administrative and sinking fund for the scheme (even if they agree that no contributions to either are payable this year); adopt joint insurance for the joined buildings of the scheme and how that it is to be paid; and present financial accounts for the year. Budgets for the forthcoming year should be approved.

In a scheme of two, both members are automatically on the committee, and both have a joint say in any matter affecting the scheme, such as an improvement or maintenance to common property (drains, the roof). If either lot owner wishes to make changes to his or her own lot, that should be approved by the other owner and minuted as a meeting of the body corporate. Even a scheme of two is required to keep records of such agreements and meetings.

The scheme is not governed by the Body Corporate and Community Management (Small
Schemes Module) Regulation 2008 as stated by the Applicant in her application but by the
Standard Module, which has very detailed requirements for the holding of meetings, and the
financial management of the scheme.

There is no method by which common property may be lawfully “divided up” for example by a fence, unless the body corporate has approved an exclusive use area of that common property for one owner and the exclusive use has been registered on a community management statement in the Land Titles Registry so that a prospective purchaser can see that someone has rights over the common property to the exclusion of the other. A division of common property is unlawful and ineffective if it has not been so registered.

The driveway and roof and any other common property is the obligation of the body corporate, that is both owners. If the Applicant has a proposal for repair or improvement, she should obtain at least two quotations for the consideration of the Respondent, and discuss the proposals with the Respondent in a body corporate committee or general meeting.

Both parties may find the Information Service of this Office helpful. There is a freephone service on 1800 060 119 and Fact Sheets available from the Information Service and from the BCCM website http://www.justice.qld.gov.au/3260.htm There is also on-line training available.

Number of Scheme:	7500
Name of Scheme:	Milton Gardens
Address of Scheme:	47 Milton Avenue PARADISE POINT QLD 4216

Queensland Body Corporate and Community Management Commissioner - Adjudicators Orders

Milton Gardens [2009] QBCCMCmr 403 (16 October 2009)