QLD Voting conditions to a motion into a community management statement related to titled land

Discussion in 'Property Law Forum' started by Gerard, 11 August 2019.

  1. Gerard

    Gerard Well-Known Member

    Joined:
    11 February 2016
    Messages:
    15
    Likes Received:
    0
    My garage lot in Qld, Australia is on my title along with my unit in an apartment block managed by a Strata Body Corporate - it is not common property. I have decided to enclose one third of my garage space with a fence to prevent intruders from stealing expensive sporting equipment that I store in my garage.


    I have received the following "Notice of committee meeting" in my mailbox on the 10/8/2019.


    NOTICE OF COMMITTEE MEETING

    Body Corporate for "Block of Units" CTS XXXXXX

    Address of unit


    To be held by post on: Thursday August 15, 2019

    At: Address of Body Corporate at 0930


    Noticed issued: August 5, 2019


    This meeting is conducted under section 54 of this Body Corporate and Community Management (Standard Module) Regulations 2008


    After reading the motion please indicate your consent by completing the details below and return by the date of the meeting[c1] to: PO BOX XXX, State, Post code, or by email by 9.00am on 15/6/19 to : email address


    ONLY COMPLETE AND RETURN IF YOU ARE A MEMBER OF THE COMMITTEE


    MOTION - GARAGE ENCLOSURES


    RESOLVED that the owner of any lot be authorized to enclose their car parking space as registered on title and noted in the Community Management Statement in a manner to those already enclosed on the following conditions:


    1. That the style, colour and materials of the enclosure be in keeping with those already installed. (It is noted that some parking areas have been enclosed since construction of the building).


    2. That the installation does not obscure body corporate access to any pipework that may be required to be accessed, or that should the enclosure prevent access to infrastructure or any common property area, that the owner of the lot ensure that access is available to the body corporate should it be required.


    3. That the enclosure of the area does not breach any regulations that may be imposed or required by either the Queensland Fire Department or the Gold Coast City Council.


    4. That the owner is at all times responsible for the maintenance, repair and insurance of the enclosure.


    5. That should the installation cause any damage to the common property that the owner be responsible for the repair of the damage.


    6. All construction of enclosures must be located within the adjoining boundary line (not on the dividing line) between lots unless otherwise agreed between adjoining lot owners that the enclosure can be placed upon the dividing line.


    YES / NO / ABSTAIN



    I request that this voting paper, completed by me as a member of the committee be recorded as my vote in respect of the above motion.



    Name__________________________ Signature_______________ Date___________________
     
  2. Gerard

    Gerard Well-Known Member

    Joined:
    11 February 2016
    Messages:
    15
    Likes Received:
    0
    My Questions are:



    How can a Body Corporate Committee vote the above conditions to the motion related to titled land (that is land that is not common property) into a Community Management Statement?

    The Body Corporate and Community Management Act 1997 states:

    The primary object of this Act is to provide for flexible and contemporary communally based arrangements for the use of freehold land, having regard to the secondary objects.

    The 1997 act is for freehold land (common ownership of real property) – how can the 1997 Act apply to titled land that is not common property?


    S 66 (3) of 1997 Act states that the community management statement must not include anything other than the things that this Act, or the regulation module applying to the scheme, says the statement must or may include.


    This is where the 1997 Act reiterates the Community Management Statement must not include conditions to the motion which are not related to common property.

    These conditions to the motion being asked to be put to a vote unreasonably prevent or interfere with the use and enjoyment of an owners titled land which S 68 of 1997 Act stipulates must not happen.


    It should also be noted that under the 1997 Act Schedule 4, By Laws, Section 5, Damage to property (2) it stipulates that owners of lots may install a locking or safety device (e.g. a nail or a screw (in a common property wall) to hold an enclosure in place) to protect the lot against intruders, if the device or screen is soundly built and is consistent with the colour, style and materials already existing.


    Body Corporate and Community Management (Standard Module) Regulations 2008


    Under Chapter 2, Community management statements (6) Permitted inclusions of the 2008 Regulations – related to S 66 of the 1997 Act, it states the permitted inclusions should be related to future connections to utility infrastructure or the operation of an architectural and landscape code. Or related to the use of common property or body corporate assets. The conditions to the motion being put to a vote are not related to any of these – so why are they being put to a vote for inclusion in the Community management statement?


    Other questions:


    The Notice of Committee Meeting containing conditions to be voted on states it was issued on 6/8/19 but was only received by mail in the committee member’s mail box on 10/8/19 – giving the committee member only 5 days (including a Saturday and a Sunday in those days) to make a decision on the conditions of the motion. Does the delay in receiving the Notice contravene require time frames to allow voters time to consider the information?


    Does there need to be a meeting about needing to put these conditions to a motion for a vote? Rather than just putting them to a vote without any prior warning for a need for a vote?

    It seems someone in the Committee is wishing to rush through these conditions to the motion without making other Committee member’s aware they were even being considered or giving them enough time to consider them.

    Should the voters not know who amongst the voters is wanting these conditions to the motion to be voted on in case there is a conflict of interest?


    Under S 53 Conflict of Interest of the Body Corporate and Community Management (Standard Module) in the Regulations 2008, it states anyone with a conflict of interest in relation to issues being considered should disclose this.

    There may be a conflict of interest not being disclosed by the Chairman of the Body Corporate Committee who has lied to other Committee members by stating heir garage is not on their title. The Chairman has also withheld documental proof previously shown to be in his possession about the ownership of garages from other committee members. The Chairman also refused to provide information pertaining to previous Community Management Statements to other Committee members.

    The Chairman Of the Body Corporate Committee who is seems has instigated this motion on enclosures without consulting with any other committee members has an already existing enclosure (fence) in his garage which they state has existed since the building was built which other committee members dispute – they feel it was put in by the chairman himself after the building was built. The Chairman has been arguing with other lot owners that they are not allowed to put up a similar enclosure in their garage, despite the Chairman already having one in his own.

    The Chairman Of the Body Corporate Committee has also been arguing with other lot owners that they were not allowed to put up a similar enclosure in their garage due to common property pipes being in the roof above the floor in the garage on their title. The Chairman claims the enclosure would prevent access to the common property piping in the roof – however the Chairman of the Body Corporate Committee’s own existing enclosure in their garage is currently preventing access to common property piping already.

    There are precedents of enclosures in other owner’s garages on titled land within the block of units which already prevent access to common property piping (e.g. the Chairman of the Body Corporate Committee) and precedents in many similar Body Corporate Buildings in the local council area of Qld within which the block of units is located that make these conditions to the motion being asked to be voted on appear unreasonably. S 68 of the 1997 Act stipulates conditions to the motion should not prevent or interferes with the use and enjoyment of an owners titled land.


    To make matters worse the Chairman of the Body Corporate Committee seems to have garnered votes from other members on the committee based on their long term friendship rather than the other committee member’s using their own intelligent consideration of the issues being voted on which makes the vote entirely biased - as the Chairman’s friends on the committee make up a majority vote.


    The Strata Body Corporate managing the units also sabotages any open discussion or the provision of help/guidance with all committee members except for the Body Corporate Committee Secretary and only if the secretary communicates with the Strata Body Corporate in writing.

    The Chairman who is being unreasonable in providing information relating to these issues is good friends with the Secretary and they both appear to have a conflict of interest in relation to the issues being addressed in the vote related to garage enclosures but are not openly disclosing it. For example, the secretary’s garage is directly beside another garage whose owners recently put up an enclosure which the secretary’s husband had previously expressed extreme dissatisfaction with but has no reasonable grounds to refuse it’s installation.

    Other Lot new home owners to the block of units have put up recent enclosures made from better quality materials and which are also more aesthetically pleasing than the materials being used by the Chairman in their existing enclosure which the Chairman claims was always there from the first day the building was built. It seems unreasonable for the conditions to the motion being voted on to unreasonably interfere with these lot owners’ rights to put a better-quality material and a more aesthetically pleasing material up compared to the Chairman’s poor-quality materials.

    There are other lot owners who have aesthetically unpleasing tin sheds located in their garages that block access to community piping in the roof above their garage floor which it seems have been there for many years and have never been of any concern to the Chairman. We are unsure as to why the Chairman has all of sudden taken issue to the two new homeowners in this block of units wishing to put enclosures in their garages.


    Has anyone got anything to say about the legality of the above situation?

    I wish to prove that the vote, the conditions and the motion are not within the scope of the Law and as such should be null and void - dispensed with!
     
  3. Rob Legat - SBPL

    LawTap Verified

    Joined:
    16 February 2017
    Messages:
    1,837
    Likes Received:
    378
    Rather than going through your very lengthy concerns and questions, there is perhaps an easier way to deal with it. Let’s look at the motion:

    Item 1: This would probably depend on two things: (1) Will the enclosure be visible from the common property, and (2) Is there an existing by-law about the appearance of lots? If yes, then this part of the motion, if supported, would likely be considered the Body Corporate’s consent. Otherwise, you’d likely need written permission for each enclosure. Appearance is not just about ‘what looks better’ or ‘materials quality’ – it is also about uniformity.

    Item 2: The body corporate is permitted to access a lot when reasonably necessary to inspect for and carry out necessary work – section 163. So, this part of the motion is ineffectual whether or not it’s passed, because the body corporate already effectively has this power.

    Item 3: This is a legal requirement in any case. Again, ineffectual. It’s like passing a rule to say you’ve got to obey the law.

    Item 4: The enclosure is within a lot, so of course it’s the lot owner’s requirement to maintain, repair and insure. Again, ineffectual.

    Item 5: The body corporate is already entitled to claim damages from a lot owner who damages common property. Again, ineffectual.

    Item 6: Lot owners can’t build into common property without permission, so this is already covered.

    The only real issue appears to be the materials. And if you have an ‘appearance’ type by-law, then you’re stuck – unless:

    - You had a free standing enclosure that didn’t form part of the lot; and

    - You could argue that those with free standing sheds were being favoured (if you’re asked to take it out). Bodies corporate must be consistent across lot owners without favouritism.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  4. Gerard

    Gerard Well-Known Member

    Joined:
    11 February 2016
    Messages:
    15
    Likes Received:
    0
    Thank you Rob Legat – SBPL

    Item 1:

    The enclosure will be visible from Common Property – the common property is an underground (in the basement) common driveway which provides access to each owners (titled) garage.

    There is no existing by-law about the appearance of the lots in this block of units as yet.

    Why would an owner wish to give away their sole decision-making power to put an enclosure inside the garage they own to a vote by other committee members? Note. Especially as those committee members have proven to be difficult to deal with (self-serving and unhelpful).

    Is it not a bit like saying I want the body corporate committee to vote on whether I can put cabinets in the kitchen I own?

    Does the 1997 Act not stipulate body corporate committee jurisdiction via Community Management Statement must be in regard to common property – which my garage is not.

    I’ve installed the enclosure on the day the Chairman of the committee claims the Motion was issued and I did not request written permission from anyone.

    If this motion goes through in 4 days’ time – provided I have not infringed on items 2-6 (which I have not) – would the Body Corporate Committee now have the power to request I remove the enclosure?

    If so would the Chairman have to also take his enclosure down as it is made from the same materials as mine?

    Item 1 exposes the owner of the garage to non-evidence based (and sometimes biased) voting by a committee group that has proved to be unhelpful and likely holding a conflict of interest in these matters?

    Who do you feel I would need to get written permission from in order to put an enclosure in the garage I own if the motion does not get approved for Body Corporate consent?

    I was advised by the Queensland Body Corporate and Community Management staff on their 1800060119 number that if there is no other existing by-laws or conditions in a Community Management Statement (which there is not) then there is nothing in the 1997 Act that requires me to seek permission from another party regarding what I can put in the garage I own.

    My garage enclosure is made from the same materials as the Chairman’s enclosure – so uniformity is not an issue.

    The enclosure I have is the typical tennis court fence material that is screwed into the garage floor which I own and into the roof of my garage which I assume is common property. If I remove the screws from the roof my enclosure would still be free standing and safe with the screws still in my garage floor. If I remove the screw from the roof would this mean the Body Corporate Committee would have no jurisdiction to authorize or refuse my enclosure?


    Note there is mentioned in the Regulations 2008, that owners of lots can sometimes be allowed to put screws in common property walls if it involves protecting their property from intruders.

    In fact, my enclosure would likely be free standing even if I removed the screws from the roof and from my garage floor.

    I wish to not be the one paying (for a decision to be made by an adjudicator or QCAT) regarding the whether the Body Corporate Committee had unfairly refused to grant my enclosure.

    I would prefer the Body Corporate Committee pay an adjudicator or QCAT to make such a decision as to their power to authorize my enclosure – providing I know my legal arguments are correct in regard to me having the right to install my enclosure without their authorization.


    Thanks again for your enlightening early response.

    Not doubt I have made the whole thing (unnecessarily) complicated again!
     
  5. Rob Legat - SBPL

    LawTap Verified

    Joined:
    16 February 2017
    Messages:
    1,837
    Likes Received:
    378
    Okay, if there is no by-law about 'appearance of lots' or similar, then the body corporate committee cannot pass an effective resolution in terms of item 1.

    Section 42 of the BCCM Standard Module provides that the following relevant issues are 'restricted issues' which the committee cannot make a resolution on:
    - Changing the rights, privileges or obligations of the owners of lots; and
    - That may only be made by resolutions without dissent, special resolution, majority resolution or ordinary resolution of the body corporate.

    Section 100 of the BCCM Act provides that a decision of the committee on a restricted issue is not a decision of the body corporate.

    The motion clearly affects the rights of lot owners on what to do within their lot, apparently without a supporting by-law. And the committee cannot make a new by-law as that would require a decision of the body corporate by way of special resolution - which is beyond the powers of the committee to do.

    The issue for you will be attaching the enclosure. The standard rule is that for building format plans (which yours appears to be off the description), the extent of your lot is the 'mid point' in the walls, floor and ceiling to the next lot. The basement floor is a little tricky, but you can probably follow the same reasoning. You should be able to affix to that midpoint - but you can't go past it without either body corporate consent (to common property) or the adjoining lot owner (as relevant).

    If you don't want to take action over the dispute, you'll have to weather the body corporate committee's demands and wait until they do so.
     
    Stop hovering to collapse... Click to collapse... Hover to expand... Click to expand...
  6. Gerard

    Gerard Well-Known Member

    Joined:
    11 February 2016
    Messages:
    15
    Likes Received:
    0
    Many thanks for your kind help Rob Legat - SBPL.

    My enclosure ends 5 cm away from the mid-line in the direction of the center of my garage - it is not in my neighbors garage in any way shape or form nor is it on the mid-line i.e. it is completely within my allocated garage area.

    Your second reply above clarifies what I was suspecting - than you.

    Looks like I will have to weather the storm, and provide the above information to the adjudicator or QCAT when the BCC decide to take action.

    I was going to send the BCC this line of argument, so I can tell the adjudicator or QCAT when the BCC decide to take action, that they were made aware of the above legalities before the motion was voted on.
     
Loading...

Share This Page

Loading...
gt;