Reflection Tower Two [2011] QBCCMCmr 299 (22 July 2011)

Last Updated: 14 December 2011

ADJUDICATOR’S ORDER
Office of the Commissioner
for Body Corporate and Community Management

CITATION:	Reflection Tower Two [ 2011] QBCCMCmr 299.
PARTIES:	The Body Corporate for Reflection Tower Two (applicant) Ms. Claire Przirembel (respondent) All owners (affected persons)
SCHEME:	Reflection Tower Two
JURISDICTION:	Sections 227(1) and 229(3)(a) of the Body Corporate and Community Management Act 1997 (Qld) (Act), applying the Act and the Body Corporate and Community Management (Accommodation Module) Regulation 2008.
APPLICATION NO:	0255-2011
DECISION DATE:	22 July 2011
DECISION OF:	Mr. R Miskinis, Adjudicator
CATCHWORDS:	Exclusive Use of Common Property – Allocation of exclusive use by person purporting to act as agent of the original owner Section 171 of Body Corporate and Community Management Act 1997.

ORDERS MADE:

I hereby order that the application for the following orders: that the owners of lot 706 remove the storage cage located on common property without exclusive use and carry out the necessary repairs to common property after removal; and that should the owner of lot 706 fail to remove the storage cage within thirty (30) days, the body corporate be authorised to arrange the removal of the cage and claim all necessary costs to the owner. is dismissed. The above order was appealed to the Queensland Civil and Administrative Tribunal – Appeal No. APL375-11.

REASONS FOR DECISION
Introduction

[1] Reflection Tower Two is a community titles scheme comprising 121 lots and common property, registered on a building format plan. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).
[2] The orders sought by the applicant body corporate are

• (i) that the owners of lot 706 remove the storage cage located on common property without exclusive use and carry out the necessary repairs to common property after removal; and
• (ii) that should the owner of lot 706 fail to remove the storage cage within thirty (30) days, the body corporate be authorised to arrange the removal of the cage and claim all necessary costs to the owner.

[3] The main issues requiring consideration are:

• (i) Whether the respondent had been allocated exclusive use of an area of common property; and
• (ii) whether the respondent was entitled to have a storage cage constructed on the relevant common property area was properly authorised.

Overview

Procedure and jurisdiction

[4] The dispute concerns a storage cage, which the applicant claims, was constructed on common property without proper authorisation by the body corporate. This application is to be resolved under the Body Corporate and Community Management Act 1997 because it is a dispute between a lot owner and the body corporate. The application evidences a dispute between an owner of a lot included in a community titles scheme and the body corporate for the scheme (section 227(1)(b) of the Act).
[5] 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 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)).

[6] The Commissioner invited each owner to make a written submission regarding this application. Submissions were received from three owners who support the application.
[7] The respondent states that she obtained written permission to erect the storage cage from the building manager. The letter from the building manager was signed by Hamish Mitchell, for the residential Management Company on behalf of Niecon Developments.

How the dispute arose

[8] Reflections tower is a community titles scheme comprising 121 lots and common property, which was created in November 2007 by a building format plan. The scheme is regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 1997 (Accommodation Module).
[9] In early 2010 the body corporate identified a number of storage cages, which it believed, had been improperly constructed on common property. On 14 January 2010, the respective lot owners were contacted and asked to provide evidence of their entitlement to occupy the common property. In response, a number of owners, including the owner of lot 706, stated that the original on-site manager gave them approval to construct the cages.
[10] The committee subsequently advised those owners that they were not entitled to exclusive use of the storage areas and asked what action they proposed to take to rectify the matter. There were varying responses to the committee’s inquiries. While some owners accepted that proper approval had not been obtained, a number of owners continued to claim that they had a valid approval to use the storage areas and therefore did not propose to do anything.
[11] Owing to the lack of general agreement between “offending owners”, the committee decided that all of the storage cages should be removed. The committee then issued continuing contravention notices a number of owners including the respondent.
[12] It is alleged that the respondent breached by-law 6 which provides as follows: Any owner or occupier of a lot shall not mark, paint, drive nails or screws or the like into or otherwise damage or deface, any structure that forms part of the common property except with consent in writing of the body corporate. The notice, dated 12 November 2010, requests the respondent to remove the storage structure within 14 days. However, the respondent has refused to comply with the notice.
[13] The respondent wrote to the body corporate on 1 September 2010, stating that she was entitled to exclusive use of the caged area and attached a letter dated 8 December 2007 signed by Hamish Mitchell, for the residential Management Company on behalf of Niecon Developments.
[14] That letter reads as follows:

Further to your letter dated the 8th December 2007 being your application for the developer approval of 1 x car park cage in B3 of the Reflection Tower Two building, please accept this letter as confirmation of the afore mentioned application. As discussed the work is at your entire cost and coordination is to be completed within a six month period of settlement. Works commencing outside this 6 month period will need to be coordinated with the Building Management and Residential Body Corporate.

Analysis

[15] There are two issues for consideration in this matter. Firstly, it is alleged that the respondent has taken an area of common property for her exclusive use without proper authorisation. Secondly, it is alleged that a structure has been erected on common property without proper authorisation.
[16] The building unit plan for this scheme and first community management statement were registered with the Queensland Land Registry on 12 November 2007. At the time approval was given, on 8 December 2007, the developer was the owner of most, if not all lots in the scheme, and therefore had authority to allocate to the owner of lot 706, exclusive use of an area of common property.
[17] Section 171 of the Act provides that the common property to which an exclusive use by-law applies, may be either specifically identified in the by-law, or allocated by a person authorised under the by-law. More specifically, section 171 provides as follows:

Requirements for exclusive use by-law

(1) The common property or body corporate asset to which an exclusive use by-law for a community titles scheme applies must be—

(a) specifically identified in the by-law; or

(b) allocated--

(i) by a person (who may be the original owner or the original owner's agent) authorised under the by-law to make the allocation (an authorised allocation); or

(ii) by 2 or more lot owners under a reallocation agreement (an agreed allocation).

(2) An exclusive use by-law that specifically identifies the common property or body corporate asset to which it applies, other than an exclusive use by-law contained in the first community management statement for the scheme--

(a) may attach to a lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement to incorporate the exclusive use by-law, or the lot owner votes personally in the resolution; and

(b) may stop applying to the lot only if the lot owner agrees in writing before the passing of the resolution without dissent consenting to the recording of the new community management statement that does not incorporate the exclusive use by-law, or the lot owner votes personally in the resolution.

[18] The first community management statement for the scheme was registered on 12 November 2007 and included the following by-laws:

47. Exclusive Use Area – Car Park

(a) the Original Owner is authorised to allocate the exclusive use of that part of the common property (Car Space) to the Occupiers of Lots specified in a written notice to the Body Corporate. When the allocations are made they will be identified in Schedule E under the heading by-law 47. The following conditions apply to such use:

....................

(iii) An approved storage device may be installed by the occupier or owner in the relevant car park but only in accordance with the rules specified by the committee and any applicable law. Any items stored in the car space must be stored in an approved storage device. The owner is solely liable for all costs related to the approved storage device.

48. Exclusive Use area – Storage

(a) the Original Owner is authorised to allocate the exclusive use of that part of the common property (Storage Area) to the Occupiers of Lots specified in a written notice to the Body Corporate. When the allocations are made they will be identified in Schedule E under the heading by-law 48....

[19] Schedule E, attached to the community management statement, records the allocation of exclusive use of area 102 on Plan C to lot 706 for the purposes of car parking.
[20] Schedule E also records the allocation of exclusive use storage areas to the occupiers of some 31 lots but does not mention lot 706. Nevertheless, Ms Przirembel has produced a letter dated 8 December 2007, in which written permission to erect the storage cage was given by Mr. Mitchell, for the residential Management Company on behalf of Niecon Developments.
[21] The applicant body corporate argues that Mr. Mitchell did not have authority to allocate exclusive use to lot 706 and the decision to allocate exclusive use to lot 706 should have been made by the body corporate in general meeting. However, I am unable to agree with this conclusion. Subsection 171(1)(b)(i) of the Act provides that an exclusive use allocation may be made by the original owner (or the original owner's agent) authorised under the by-law to make the allocation. I believe that at the relevant time, Mr. Mitchell was acting as agent of the original owner and was entitled to allocate exclusive use of a common property area and grant permission to install the storage cage. Even if Mr. Mitchell did not have actual authority to do so, the circumstances indicate that at the least, he had ostensible authority to allocate exclusive use of a common property area and grant permission to install the storage cage.
[22] Although the exclusive use allocation was not recorded in the community management statement, I do not believe the owner of lot 706 should be disadvantaged by an error or oversight on the part of the original owner and I therefore believe the application should be dismissed.