Adjudicator's decisions
A number of adjudicator's decisions resolving disputes are listed under the topics below. Whilst the subject of the dispute may not necessarily relate directly to situations within your own body corporate, the adjudicator's decision may provide you with general information as to how the adjudicator may make orders that are just and equitable, and an idea of how the dispute resolution process operates.
Application for an order
Jurisdiction
Sections 227-229 of the BCCM Act state for an application to be within jurisdiction there must be a dispute related to certain aspects of a community titles scheme. The dispute must also be between parties listed in section 227 of the BCCM Act. Sometimes ex-owners try to lodge an application after they have sold their unit and there have been decisions rejecting applications of this nature.
The following extract from order reference 0115-2010 Swell Apartments regarding jurisdiction of parties confirms this.
“As the Applicant was not the owner of lot 1079 at the time of lodging this application, there is no “dispute” recognised by the Act in respect of that lot.”
The full text of the order and statement of reasons can be found at Swell Apartments [2010] QBCCMCmr 404 (31 August 2010).
Interim orders
Section 279 of the BCCM Act authorises adjudicators to make interim orders. An interim order is a temporary order that would normally just keep things as they are until the dispute can be determined.
The following extract from order reference 0519-2011 Sovereign Garden Villas South relates to whether an interim order will be made:
“When an applicant seeks an interim order, which is an order to “hold” the current state of affairs, the adjudicator must balance the inconvenience which might be to be caused to the respondent if the order is granted, against the difficulty or impossibility for the applicant to obtain a remedy if an order is not made. An applicant for an interim order must also demonstrate that there is a serious legal issue to be determined, and that on the face of it, the applicant has a good case. “
The full text of the order and statement of reasons can be found at Sovereign Garden Villas South [2011] QBCCMCmr 262 (22 June 2011)
For further information on jurisdiction and the dispute resolution processes of the BCCM office you may wish to refer to the Practice Directions located on this website under the link ‘Forms and Publications’.
Body Corporate Records
Access to records
Sections 204 and 205 of the BCCM Act require the body corporate to provide access to body corporate records. The following extract from order reference 0560-2007 17-23 Kidston Terrace relates to access to the body corporate roll:
“Section 204 of the Act provides that a body corporate must give access to rolls, registers and other documents in the way provided for in the regulation module. Section 150(1) of the Standard Module provides The body corporate must allow all members of its committee reasonable access (without payment of a fee) to the body corporate’s records. Section 143 of the Standard Module provides that a body corporate must keep a roll containing information such the name, residential or business address and the address for service of the current owner of each lot included in the scheme. Section 205 of the Act provides for the giving of information by the body corporate from its records and makes provision for persons such as lot owners being able to inspect body corporate records or being given a copy of a record kept by the body corporate (on payment of a prescribed fee).
The applicant has demonstrated he requested access to the roll and that he has been denied access. It is apparent that AD Body Corporate Managers & Consultants has refused to allow the applicant access on the basis that it would be contrary to a privacy policy which may or may not be developed based on the Privacy Act. The legislated disclosure provisions prevail over such a policy. A body corporate cannot decide to adopt a privacy policy which is contrary to the Act.
The body corporate roll is part of the records of the body corporate. The applicant is an owner and is entitled to inspect or to obtain a copy of the roll under section 205 of the Act. In addition, as the applicant is a committee member, he is entitled to access without the payment of a fee. I am satisfied that the applicant has requested access to the body corporate roll and that the only reason for denying access is the inappropriate use of a privacy policy. In the circumstances, the applicant is entitled to access to a copy of the roll.”
The full text of the order and statement of reasons can be found at 17-23 Kidston Terrace Chermside [2007] QBCCMCmr 587 (9 October 2007).
Disclosure requirements
The following extract from order reference 0310-2010 Club Lodge relates to access to the body corporate roll and the disclosure of phone numbers and email addresses provided to the body corporate:
“Firstly, I would suggest that when contact details have been collected by the Body Corporate (via its BCM) to enable a lot owner to be contacted about the administration of the body corporate and their lot, the disclosure of the information to a committee member to enable the committee member to contact the owner about the administration of the Body Corporate and their lot would fall within the scope of the primary purpose of collection. As such it is arguable that the disclosure would be consistent with the Privacy Act even if the disclosure was not otherwise authorised by the body corporate legislation.
Secondly, I am satisfied that contact details collected or received by a BCM in fulfilling its functions under its contract of engagement is information collected and received by the Body Corporate. As such, that information forms part of the body corporate records. Forms, emails and other written correspondence including these contact details are correspondence covered by section 203(1)(h) of the Standard Module. But I am of the view that other records, including electronic databases, held by the BCM relating to the administration of the body corporate under the BCM’s contract of engagement, are also body corporate records.”
The full text of the order and statement of reasons can be found at Club Lodge [2010] QBCCMCmr 223 (24 May 2010)
By-laws
Pets
Section 180(7) of the BCCM Act states that a by-law must not be oppressive or unreasonable. An appeal decision of McKenzie v Body Corporate for Kings Row Centre [2010] QCATA 57 determined the following:
“29. Cats and dogs are ordinary domestic pets, some species of which may well be suitable for keeping in community title schemes, subject to reasonable conditions. In my opinion, a blanket ban on the keeping of cats and dogs is unreasonable.”
Adjudicators from this Office have since made statements following this decision. The following extract from order reference 1140-2010 Seachange Retirement Village relates to the keeping of animals:
“By-laws that impose blanket bans or arbitrary limits on the keeping of pets are unreasonable. However, it is reasonable to require pet owners to obtain committee approval to keep a pet and there are numerous reasonable conditions the committee can impose on the keeping of pets to minimise the risk of pets causing a nuisance to residents of a scheme. Ultimately, if the pet does cause a nuisance to other occupiers then it will have to be removed from the scheme.”
The full text of the order and statement of reasons can be found at Seachange Retirement Village [2011] QBCCMCmr 94 (4 March 2011)
Noise and nuisance
Section 167 of the BCCM Act prohibits occupiers from creating a nuisance. This does not necessarily relate to loud parties but may include situations where hard flooring has been installed and too much noise is transmitted to the unit below.
The following extract from order reference 0826-2006 Contessa Condominiums relates to noise and nuisance:
“The question to be determined here is whether the tiles as laid are likely to cause a level of noise to the applicant, as the occupier of lot 79 directly below lot 83 and the person likely to be most affected, that causes:
- A nuisance to him;
- Interferes unreasonably with the use or enjoyment of his lot;
- Is likely to interfere with the peaceful enjoyment of his lot.”
Noise by-laws may also apply even where no nuisance has been caused. The following extract from order reference 0206-2011 Nathans Villa relates to by-laws and noise:
“….(the respondents) have contravened the by-law. I will therefore require them install an acoustic underlay before they re-tile. However, I will allow a period of six months for them to do this. This is because of the expense involved and because the current tenant is not creating excessive noise.”
The full text of the order and statement of reasons can be found at Nathans Villa [2011] QBCCMCmr 300 (20 July 2011)
Solar hot water
Section 180(8) of the BCCM Act places limitations on bylaws that are contrary to the sustainable housing initiatives under the Building Act 1975. Decisions from this Office relating to owners wanting permission to install solar hot water systems are detailed below:
The following extract is from order reference 0735-2009 St. Andrews Heights Estate:
“The parties may be interested to note new provisions of the Building Act 1975, in relation to sustainable housing measures, which came into effect on 1 January 2010. In particular, section 246O would operate to render a by-law which in effect, prohibited the installation of a solar hot water system on the roof of a building of no force or effect to the extent that the prohibition applies merely to enhance or preserve the external appearance of the building.”
The full text of the order and statement of reasons can be found at St. Andrews Heights Estate [2010] QBCCMCmr 11 (7 January 2010)
The following extract is from order reference 0769-2009 Heritage Village Ormiston West:
“I finally note that amendments to the legislation effective from 1 January 2010 prevent body corporate by-laws from prohibiting the installation of solar hot water systems (Act 180(8), Building Act 246O). The Heritage by-laws do not prohibit the installation of solar hot water systems but merely require consent before an owner changes the appearance of their lot. If an owner applies to install a solar hot water system then consent cannot normally be withheld if that would prevent a person from installing a solar hot water system or photovoltaic cells on the roof or other external surface of the building (Building Act 246S, 246T). However, the body corporate for Heritage has voted to approve the installation of an Apricus split system solar hot water system (or similar) provided that the installation is in a colour sympathetic to the complex. I therefore do not consider that withholding of consent to the Edwards roof mounted hot water system on the basis of appearance would contravene this legislation where the body corporate has approved the Apricus split system solar hot water system.”
The full text of the order and statement of reasons can be found at Heritage Village Ormiston West [2010] QBCCMCmr 36 (28 January 2010)
Parking
Body corporate bylaws generally regulate parking on common property. The following extract of order reference 0641-2000 Admiralty Towers relates to the towing of vehicles:
“As far as the Act is concerned, by-law contraventions are considered in sections 144-146 (now 182-188). Those sections detail the steps which may be taken by a body corporate in the event that a person is contravening a provision of the by-laws. In addition, a body corporate may bring an application to this office for an order that a person cease contravening a by-law. An adjudicator’s order may be enforced under the Act (section 234 - now 287). A person who contravenes an adjudicator’s order commits an offence (section 235 – now 288 - of the Act). There is no specific power under the Act to authorise the towing of vehicles as a means of addressing a by-law contravention.”
The full text of the order and statement of reasons can be found at Admiralty Towers [2001] QBCCMCmr 87 (14 February 2001)
Committee
Voting outside a committee meeting
Committee decisions can be made at a committee meeting or by a vote outside a committee meeting (VOC). For example, in order reference 0347-2007 St. Tropez an adjudicator suggested a committee should reserve the voting outside a committee meeting procedures for:
“issues where there is a genuine emergency or urgency, where there is little need for deliberation and a simple yes/no vote will suffice, or where it is impossible or impractical to convene a formal Committee meeting.”
The adjudicator further noted in order reference 0347-2007:
- “The written notice should clearly state that a voting (sic) is being sought outside a committee meeting and indicate how and by when votes are required.”
- “there is no reason why the Committee cannot agree to conduct formal meetings by teleconference, which could save significant travelling costs and avoid any suggestion that interstate Committee members cannot participate in meetings when there is urgent business”
The full text of the order and statement of reasons can be found at St. Tropez [2007] QBCCMCmr 445 (25 July 2007)
In addition to the above decision the following extract from order reference 0745-2010 Acacia Lodge Hostel related to the use of a vote outside a committee meeting:
- “where it is beneficial for a number of committee members to discuss an issue prior to a vote a formal committee meeting will often seem more appropriate.
- However, the provision allowing a vote outside committee meeting can be used in emergency and non-emergency situations “
The full text of the order and statement of reasons can be found at Acacia Lodge Hostel [2011] QBCCMCmr 127 (23 March 2011)
Committee spending
The relevant limit for committee spending is defined in the regulations as $200 multiplied by the number of lots in the scheme unless another amount has been set by ordinary resolution at a general meeting (with the exception of the Commercial Module regulations 2008).
The following extract from order reference 0643-2009 Lalirra relates to authorising expenditure:
“The strict statutory limits imposed by the Act and the various limits on expenditure were recognised by the District Court in the appeal of an order of an Adjudicator concerning expenditure by a caretaker without authorisation by the body corporate. In that instance the body corporate was required to pay $8,522.90 for various consumables the manager purchased on behalf of the body corporate and various repairs made for the body corporate’s benefit. However, the manager was refused recovery of payments for some other work that the body corporate had not approved before the work was performed. The court stated that even if the contractual provisions did not apply to extra work done by the manager then the various limits on expenditure will still apply "either because of the Act or because of a resolution of the body corporate" and that "usually there can be no recovery where work is done without the approval or consent of the property owner".
The detailed provisions regarding financial management make it clear that any person engaging in spending on behalf of the body corporate should be able to point to a resolution authorising the spending. A resolution that only indirectly authorises the spending is sufficient, for example, a resolution properly authorising entry into an agreement will indirectly authorise payments made pursuant to that agreement.”
The full text of the order and statement of reasons can be found at Lalirra [2010] QBCCMCmr 198 (29 April 2010)
Special levy
As well as the statutory limits, the body corporate must ensure there is adequate provision in the budget for the particular expenditure. The following extract from order reference 0547-2010 Shafston Mansions relates to ensuring sufficient funds are allocated in the budget:
“If additional authorised expenditure was incurred but there were insufficient funds allocated in the budget to meet that incurred expenditure then the obvious course of action for the committee to take is to call a general meeting. If owners could not adopt a new budget at the meeting that allocated sufficient funds for the expenditure in question then owners would be required to adopt a special levy to raise the necessary additional funds (Accommodation Module, 139(2)).”
The full text of the order and statement of reasons can be found at Shafston University Mansions [2010] QBCCMCmr 262 (11 June 2010)
Committee remuneration
Section 43 of the Standard Module makes provision for committee members to be paid remuneration, allowances or expenses. There are also requirements associated with these payments being sought in the nomination provisions under the legislation. A number of adjudicators have dealt with disputes associated with the authorisation of these payments.
The following extract in order reference 0148-2008 L'Colonial Court relates to the authorisation of remuneration, allowances or expenses to committee members:
“…a committee cannot pay remuneration, allowances or expenses to a committee member unless it is authorised by an ordinary resolution, or it is reimbursement for expenses incurred in attending a meeting which do not exceed $50 and do not result in the member being reimbursed more that $200 in a 12 month period [Editor note: this has now increased to $300 in a 12 month period]. Moreover, any motion to approve payments to a committee member must state the full amount of remuneration, allowances or expenses sought, the reason any expenses were incurred and an explanatory schedule stating the full details of the amount claimed must accompany the voting paper. While a candidate for committee may seek remuneration, and allowance for the remuneration may even be included in the scheme’s budget, payments cannot be made unless and until they are authorised by the committee or an ordinary resolution as applicable. “
The full text of the order and statement of reasons can be found at L'Colonial Court [2008] QBCCMCmr 332 (18 September 2008)
Common Property
Visitor parking
The issue of visitors parking has been addressed in a number of adjudicators' orders. More specifically the matter of whether a person is considered a visitor or an occupier has been addressed in the following extract of order reference 0228-2011 Trinity Waters:
“Submitters have pointed out that intermittent parking in visitors parking spaces has caused no detriment to be suffered by residents in the scheme, and that there has never been a lack of parking places. However, it is generally a local authority requirement that a scheme carries a certain number of visitor car parking spaces, and if this is the case, it is not within the power of the committee to allow usage by anyone other than bona fide visitors. In matter 0679 of 2003 “The West Quarter” CTS 26479, the adjudicator said –
“The provision of designated areas of the common property for visitor parking is a requirement of local government. The number of car spaces is calculated by the Brisbane City Council according to its formula based on the number of lots, their configuration and other things; other local government authorities have similar requirements regarding the number and position of visitor spaces though the formula may vary. These spaces cannot be used by any person other than a genuine visitor; …..
While it may be true that the visitor car spaces may be vacant much, or most, of the time, these are designated visitor spaces required by the local government, the Gold Coast City Council, to be used for visitor’s parking. These spaces are a universal local government requirement for the registration of a community titles scheme, and remain a continuing requirement of the scheme. Even if the body corporate wanted to use these spaces for resident parking, or some other purpose, it is not able to do so…There is no question of the respondent, or any person other than a genuine visitor, being allowed to park in the designated visitor car spaces.”
This raises the question of what exactly a bona fide visitor is. Submitters seem to suggest that people using a unit for holiday accommodation are merely invitees of the owner of the holiday accommodation for the duration of their holiday and are thus “visitors”. It might also be suggested that persons occupying a unit under a short-term lease (such as the occupiers of lot 5) are similarly classified as “visitors”. I do not agree. Persons staying in a unit for a holiday or under a short term lease would appear to be “occupiers” under the Act, based on past decisions of adjudicators and the Queensland Civil and Administrative Tribunal.”
The full text of the order and statement of reasons can be found at Trinity Waters [2011] QBCCMCmr 297 (19 July 2011)
Debt Recovery
Recovery costs and legal fees
The most common debt disputes and related disputes concern outstanding levy contributions. The following extract from order 0370-2007 “3 Parkland Boulevard” relates to the inclusion of recovery costs and legal fees in a notice of contribution:
“The legislation specifically provides that the body corporate can recover as a debt any reasonably incurred recovery costs (Accommodation Module, 97(1)(c)). The body corporate needs to claim those costs as a debt and await either agreement by the defendant or a court order specifying which recovery costs are "reasonably incurred". If the applicant and the body corporate cannot agree on what recovery costs have been reasonably incurred then the body corporate can initiate court action seeking its reasonable recovery costs.
The committee would be mistaken, however, if it considered that section 97 Accommodation Module allowed it to simply turn over debt recovery to a body corporate manager, debt collector, a lawyer or another party and expect to be able to ultimately recover any debt recovery fees from the debtor. Rather, the committee needs to closely monitor all costs associated with recovering contributions from lot owners to ensure that the costs are reasonably incurred …. The body corporate may separately inform an owner that it will be claiming a certain amount of recovery costs but cannot add these amounts to the notice of contributions or offset contributions paid by an owner against these claimed expenses”.
The full text of the order and statement of reasons can be found at 3 Parkland Boulevard [2007] QBCCMCmr 437 (23 July 2007)
This was affirmed in an appeal of an order to the Queensland Commercial and Consumer Tribunal (CCT).
In Body Corporate for Liberty v Alotier Pty Ltd & Stewart Silver King and Burns CCT KA009-08 (11 February 2009), Dorney KD, after considering the definition of ‘debt’ in relation to recovery costs under section 145 and the Dictionary to the Standard Module, concluded that “recovery costs …. are not body corporate debts and are, otherwise, not in the nature of a debt”. He also concluded that “The “debt” appears to be one that permits its recovery only as part of a procedure whereby proceedings are brought in some court, at least of implied necessity in this case, of competent jurisdiction.”
As a consequence, he found that “a body corporate cannot include in its financial records the existence of a debt against a particular owner where the “debt” falls within the definition of what are “recovery costs”.
The result was that the Tribunal made an order that in effect said, the body corporate is entitled to claim recovery costs as an unliquidated amount but not entitled to treat them as a ‘debt’, unless and until such recovery costs are the subject of a judgment in a court of competent jurisdiction.
Debt dispute
The ability for this Office to determine debt disputes or related debt disputes was affected by the amendments to the BCCM Act in 2010. Order reference 0503-2010 “Q1” addresses the effect of the amendments and provides suggestions for owners in an attempt to avoid spiralling recovery costs and penalty interest:
“If an owner does dispute an amount claimed by the body corporate then the obvious steps for the owner to take to avoid spiralling recovery costs and penalty interest are to:
- Pay the amount requested;
- Simultaneously write to the committee seeking clarification of how the amount was calculated and, if there are any special reasons for doing so, requesting that the committee agree to waive penalties and recovery costs (or reinstate discounts); and
- If necessary, subsequently lodge a chapter 6 application seeking reimbursement of any amounts they had overpaid.
The full text of the order and statement of reasons can be found at Q1 [2010] QBCCMCmr 433 (21 September 2010)
General Meetings
Motion with alternatives
The regulation modules require motions proposing alternative ways of dealing with the same issue to be listed on the agenda of a general meeting as a single motion with alternatives otherwise the motions may be void.
The following extract from order reference 0100-2011 Daldy Court relates to this issue:
“The legislation provides that if two or more motions proposing alternative ways of dealing with the same issue are submitted, the voting paper for the general meeting must list the substance of each of the original motions as alternatives under a single motion submitted by the committee (Standard Module, 72). …. for this particular failure to comply with the legislation, there is a clear intention that a failure to list all similar motions as alternatives within a single motion will invalidate the vote taken by owners…. This appears to be to avoid the problem of owners passing conflicting motions or of the chairperson having to stop owners considering subsequent motions that might conflict with a resolution already passed.”
The full text of the order and statement of reasons can be found at Daldy Court [2011] QBCCMCmr 144 (5 April 2011)
Notice of meeting
Numerous queries to this office arise over the notice period of a general meeting and the notice material (or lack of) sent to the owners.
The following order reference 0713-2010 Moet relates to the notice period for a general meeting and its effect on the validity of the meeting:
“Section 74 of the Standard Module provides that a general meeting must be held ‘at least’ 21 days after notice of the meeting is given to the owners of lots. Section 70(1) provides that the notice must be given to each owner personally or sent to their address for service.
In calculating the 21 day period, section 38(1) of the Acts Interpretation Act 1954 indicates that the day of giving the notice and the day of the AGM are not to be taken into account – that is, there should be 21 clear days between the giving of the notice and the meeting. The effect is that for a meeting on 9 June, notice must have been given no later than 16 May.
Furthermore, if the notice of general meeting was sent by post then sections 39A(1)(b) and (3) of the Acts Interpretation Act 1954 provide that it would be deemed to be ‘given’ at the time at which the notice would have been delivered in the ‘ordinary course of post’ unless the contrary was proved (such as evidence showing that the item was not in fact delivered until later). Therefore notice is ‘given’ on the expected postal delivery date rather than the date it was actually posted. Standard delivery times differ depending on the destination and could be checked with Australia Post. In this case the Australia Post guidelines suggest that three days should be allowed for delivery of a letter between a metropolitan area of a capital city and a country location.
As the required date (16 May) for notice to be ‘given’ was a Sunday, it would actually need to have been delivered by post on the previous Friday (14th May) to be given in time. To allow three days for postage, the notice should have been posted on Tuesday 11th May. As the notice in this case was posted on Sunday 16th May, it may well have not been received until the subsequent Tuesday or Wednesday (the applicant does not actually indicate when she received it). This means the full 21 days notice was not given. However this was not a significant reduction of the required notice. Moreover, the applicant has not said that she did not receive the notice, or that she did not have adequate time to consider it, or that she was adversely affected by the delay.
Of course the Body Corporate should in future ensure that the full 21 days notice is given, as outlined above. When in doubt notice should be given earlier rather than at the last minute. However on this occasion I am not satisfied that the small delay with the giving of notice was a substantial defect that affected the outcome of the meeting. As such I do not consider that it would be a reasonable basis to invalidate the meeting.”
The full text of the order and statement of reasons can be found at Moet [2010] QBCCMCmr 496 (1 November 2010)
Explanatory material
The body corporate has some latitude in preparing the explanatory material for a general meeting. In Batwing Resort Pty Ltd v Body Corporate for Liberty [2008] CCT KA004-08 at para. 55-56 it states:
Section 40C(7) does not prohibit the committee including in its 'explanatory material' documents given to it … there is no express or implied statutory obligation to present 'both sides of the argument' (whatever that means in practical terms) in the 'explanatory material'.”
However the District Court [Body Corporate for Palms Springs Residences CTS 29467 v J Patterson Holdings Pty Ltd [2008] QDC 300] has referred to the committee owing owners a fiduciary duty:
“The fiduciary duty is a duty to provide such material information as will fully and fairly inform members of what is to be considered at the meeting”
Lot entitlements
Reversion
On 14 April 2011 legislative amendments came into force that include:
- changes to the basis for setting lot entitlements;
- changes to the procedures for adjusting lot entitlements; and
- new procedures for reversing earlier adjustment orders.
A fact sheet titled Lot entitlements – 2011 amendments (PDF, 242.4 KB) details these changes.
A recent adjudication considered some of the procedures for reversing earlier adjustment orders and found:
- The only people who can propose the reversal of the adjustment order (under section 379) are those owners who owned a lot when the adjustment order was made and are contributing proportionally more because of the order. The reversal must be proposed within three years of the legislative amendment.
- An adjustment order can be reversed when the body corporate did not consent to the adjustment order.
The full text of the order and statement of reasons can be found at Q1 [2011] QBCCMCmr 394 (12 September 2011)
Maintenance
Numerous queries relate to the maintenance of balconies in a building format plan. The following extract from order reference 0781-2010 Amelia Place relates to maintenance of balconies in a building format plan:
“Individual owners of units are responsible for the maintenance of their own floor coverings. However, when a single building contains units on multiple levels, all owners contribute to the costs of maintaining that building in a waterproof and structurally sound condition. It is simply an unfortunate fact of life that waterproofing membranes typically do not last as long as tiles. A body corporate therefore has to pay for the retiling of balconies whenever it destroys the tiles to replace a membrane, subject to any apportionment due to poor condition of the tiles or an agreement by the owner to contribute to the costs of updating the tiles.”
The full text of the order and statement of reasons can be found at Amelia Place [2010] QBCCMCmr 522 (23 November 2010)
Painting in standard format plan
The following extract from order reference 0260-2010 Brookfield Estate relates to the painting of lots in a standard format plan:
“A body corporate must maintain common property in good condition (s 157(1), Accommodation Module). The owner of a lot must maintain the lot in good condition (s 168(2), Accommodation Module). Where lots are created by a standard format plan of subdivision, the body corporate does not have a legislative duty to paint the exterior of a building that is within the boundaries of a lot. This view has been expressed in many decisions made by adjudicators under the dispute resolution provisions of the Act (25 Queens Road [2010] QBCCMCmr 324 (13 July 2010), Oasis [2007] QBCCMCmr 266 (11 May 2007), Jacaranda Gardens [2007] QBCCMCmr (15 January 2007), Merrimac Heights [2006] QBCCMCmr 609 (21 November 2006) and Lakewood Village [2005] QBCCMCmr 517 (19 September 2005)).
As has been discussed in some of these decisions, there are two ways under the legislation in which a body corporate may be involved in painting a part of a building on a lot for which a lot owner has a duty to maintain in good condition.
Firstly, it may, with the agreement of an owner, supply or organise the supply of a maintenance service such as painting (s 167(1) and (2), Accommodation Module). The basis of this arrangement is that it involves choice and essentially is user pays. “The body corporate may…charge for the services…but only to the extent necessary for reimbursing the body corporate for supplying the services…the body corporate must, to the greatest practicable extent, ensure the total cost to the body corporate…for supplying a service…is recovered from the users of the service” (s 167(2) and (3), Accommodation Module). A service supplied pursuant to section 167 is not obligatory; each owner may choose whether they wish to participate in the arrangement or not. Those who do participate must share the full cost of the painting with no cost falling on the body corporate or those owners who do not agree to being supplied with the service. However, an owner who chooses not to participate in such an arrangement is still required to maintain the person’s lot in good condition.
Secondly, if an owner does not carry out work that the person has an obligation to carry out under the regulation, the body corporate may carry out the work and recover the reasonable cost of the work from the owner as a debt (s 169, Accommodation Module).”
The full text of the order and statement of reasons can be found at Brookfield Estate [2010] QBCCMCmr 423 (10 September 2010)
Maintenance of exclusive use areas
The following extract from order reference 0360-2007 Sailport relates to maintenance of exclusive use areas in a building format plan:
“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.”
The full text of the order and statement of reasons can be found at Sailport [2007] QBCCMCmr 609 (30 October 2007)
Fences
The following extract from order reference 0940-2010 Jadran Court relates to maintenance of fences within community titles schemes:
[52] “The Dividing Fences Act 1953 sets out a scheme for one owner to require the owner of an adjoining lot to contribute to the costs of building and maintaining a dividing fence. The Body Corporate and Community Management Act 1997 is relevant to determining responsibility for building and maintaining dividing fences to the extent that it clarifies which persons are considered adjoining owners under the Dividing Fences Act 1953.
[53] Adjoining owners will normally be jointly liable for the costs of erecting and maintaining a fence and owners of adjoining lots included within the scheme are taken to be adjoining owners for the purposes of dividing fences (see subsection, 311(3) Body Corporate and Community Management Act 1997).
[54] Similarly, fencing between common property and lots included within the scheme will normally be the joint responsibility of the body corporate (which is responsible for administering the common property owned by all owners as tenants in common) and the particular owner who owns the lot on the other side of the part of the fence in question. Where an owner is entitled to exclusive use of an area of common property that is fenced off from other common property, the person entitled to exclusive use is responsible for maintenance of that fence.
[55] Where a fence divides scheme land from other land, then the body corporate is taken to be the adjoining owner in respect of fencing around the outside of the scheme land. This is the effect of subsection, 311(1) of the Body Corporate and Community Management Act 1997 which provides as follows:
Body corporate to be taken to be owner of parcel for certain Acts etc.
(1) The body corporate for a community titles scheme is taken to be the owner of the scheme land for the following Acts--
The full text of the order and statement of reasons can be found at Jadran Court [2011] QBCCMCmr 351 (10 August 2011)
Miscellaneous
Body corporate manager v administrator
One of the fundamentals of the BCCM Act is to provide for the establishment and administration of community titles schemes and, through the provisions of the BCCM Act and the associated regulation modules, it is the body corporate that controls the common property and assets and is responsible for managing the scheme on behalf of the lot owners.
Queries are raised through this office regarding the difference between a body corporate manager (BCM) and an administrator to assist with the management of the scheme. The following extract from order reference 0339-2011 Tannachy Specialist Centre relates to this issue:
“It is relevant to note the difference between a BCM and an administrator, for the information of owners. A BCM is a person (including a company) engaged by a body corporate to supply administrative services to the body corporate. The Commissioner’s Office produces a factsheet about BCMs which summarises the legislative provisions regarding the role, appointment and termination of BCMs. A general meeting resolution is required to appoint a BCM and an appointment can only be made for a maximum of three years.
There is no requirement that a body corporate appoint a BCM. However the requirements of the body corporate legislation can be complex and onerous. Even in small schemes, many owners find that it can be simpler, and can minimise conflict, to engage an independent BCM to ensure all the administrative requirements of the legislation are followed. Commonly a BCM will be authorised to exercise the functions of the secretary and treasurer, including issuing levy notices, managing funds, issuing meeting notices and minutes, and so on. However normally there must still be a Committee and the BCM remains at the direction of the committee.
An adjudicator has no authority to appoint a BCM, as this is the sole right and responsibility of a body corporate. However, the legislation does give an adjudicator the capacity to appoint an administrator. The term of the appointment and the scope of the administrator’s authority and powers can be determined by the adjudicator’s order.
A three-month appointment of an administrator to conduct a general meeting is common where a body corporate has ceased to hold AGMs, or meetings have not been conducted validly, or there is no longer a valid committee that is able to call a general meeting. Such orders are made where there is a need to put a scheme back on a proper legal footing.
In some circumstances, administrators can be appointed on a longer term basis. However, adjudicators do not take such appointments lightly as they can deprive owners of the right to administer a scheme themselves and can have a significant cost impact. The responsibility for self administration is an inherent aspect of community titles schemes. Therefore, such an appointment would only be made where the administration of the body corporate has broken down irretrievably or is in significant disarray, and cannot be rectified by calling an AGM.”
The full text of the order and statement of reasons can be found at Tannachy Specialist Centre [2011] QBCCMCmr 306 (22 July 2011)