Picture Point [2004] QBCCMCmr 384 (6 August 2004)

Last Updated: 30 September 2005

REFERENCE: 0017-2004

ORDER OF AN ADJUDICATOR



MADE UNDER PART 9 OF CHAPTER 6



BODY CORPORATE AND COMMUNITY MANAGEMENT ACT 1997

TAKE NOTICE that pursuant to an application made under the abovementioned Act by Mr & Mrs Coates, the Owner(s) of lot 7

STATEMENT OF ADJUDICATOR’S REASONS FOR DECISION - REF 0017-2004



"Picture Point" CTS 27561

Application

Picture Point Community Titles Scheme (Picture Point) is a 12 lot scheme under the Body Corporate and Community Management Act 1997 (Act) and the Act’s Accommodation Module Regulation (Accommodation Module). The scheme is designed for residential purposes.



This application is by Ivan and Laura Coates, owners of lot 7 (applicants) seeking orders against the body corporate (respondent). The applicants are seeking orders regarding alleged illegal parking in visitor car parks and on the common property.

Background

The applicants allege that the body corporate is contravening the legislation by failing to direct the caretaker to enforce the legislation. Also, the applicants wish to require the body corporate to display the car parking plan on the public noticeboard in the lift foyer and in the property compendium of each unit.

Submissions

The applicants’ main submissions were to the effect that:

• The use of visitor parking areas and part of the common property in front of the car park granted to the exclusive use of lot 4 is contrary to section 37 of the Act;

• The minutes of committee meeting on 24 July 2003 record that those present agreed to abide by the visitor car park regulations but did not state what those regulations are; and

• Since that meeting, the caretaker continues to breach the Act by allowing overnight and long stay in-house visitors to occupy the visitor parks and the common property in front of the car park for lot 4.

The body corporate’s main submissions were to the effect that:

• The committee is unable to see the relevance of section 37 of the Act, or for that matter, section 37 of the Accommodation Module;

• The committee has directed the caretaker to apply the requirements of the Act in relation to car parking;

• The committee considers that the request to display the car park plan on the notice board is not necessary as all basement car parks are already clearly identified with their unit number and the plan in question identifies car parks alphabetically and would only lead to confusion; and

• Further, the committee does not consider it can display the plan in the property compendium for each unit as that area is for the private use of each unit.

Other owners have provided submissions to the effect that:

• Visitor car parks should be available for overnight or longer period visitors if staying with the occupier of a unit, whether owner or rental;

• Visitor car parks should not be available for overnight stays but it is difficult to police this as at the close of the caretaker’s office hours it is not possible to determine if the car is that of a genuine visitor who may leave at 3.00am or someone who will stay the night;

• The owners of lot 4 purchased their unit on the understanding that they were getting use of a tandem car park. When the plan showed a single car park the developer told them that it did not matter that the plan only showed a single car park as the area in front of that car park could only be used by them and could therefore be used to park a second car;

• The caretaker appears to have been making reasonable efforts to ensure visitor car parks are only used by visitors;

• The applicants have only raised this complaint after they were told that they would need to use their own allotted car park rather than the car park of another unit; and

• The breakdown in the relationship between the applicants and the caretaker is not the responsibility of the committee.

Decision

Applicable law

The legislation includes provisions to the effect that:

• Occupiers of a lot must not cause a nuisance or interfere unreasonably with the use or enjoyment of the common property or another lot (Act, 167); and

• The body corporate must administer, manage and control the common property and body corporate assets reasonably and for the benefit of lot owners (Act, 152).

The by-laws for Picture Point include:

By-law 2 - An occupier of a Lot shall not park or stand any motor or other vehicle upon common property except with the consent in writing of the Body Corporate or as permitted by the Body Corporate and Community Management Act 1997 or Regulations thereto.

By-law 3 - An occupier of a Lot shall not obstruct lawful use of common property by any person.

The Act gives the owners of units in a scheme the power to vote on what by-laws will apply to their scheme. All owners and occupiers are obliged to comply with registered by-laws, unless or until the owners vote to modify or remove a particular by-law.



The body corporate has a duty to enforce the by-laws (Act 94(1)). Rights of individuals are protected to the extent that the body corporate is required to act reasonably in enforcing the by-laws (Act 94(2)). Individual owners or occupiers can also make an application to enforce by-laws. However, except in special circumstances, an individual may only make an application alleging a contravention of by-laws if they have (in the approved form) asked the body corporate to give the accused person a contravention notice and the body corporate does not confirm within 14 days that the notice has been given (Act 185, 186).

Parties and jurisdiction

As a preliminary issue, the applicants make this application as owners against the body corporate. The caretaker is listed as an affected party. However, I have no jurisdiction to resolve a dispute between individual owners and a caretaker (Act, 227, 276). It is the body corporate as a whole that engages a caretaker and for the body corporate as a whole to determine if it wants to bring an application against the caretaker in order to bring the dispute within the jurisdiction of this office.



Further, the applicants have not brought this application against any individual owner or occupier who they allege to be contravening the Act or the by-laws. If fact, the applicants are only entitled to bring an application against another owner for contravention of the by-laws if they have first asked the body corporate to issue a contravention notice and the body corporate has not done so within 14 days (Act, 185). Further, the applicants have not provided any substantive evidence of specific incidences of parking contrary to the by-laws and the identity of the person alleged to be doing so.



Therefore, the only question to determine is whether the body corporate is failing to act reasonably in enforcing the by-laws and administering the common property for the benefit of owners.

Obligations of the body corporate

The applicants have failed to satisfy me that the body corporate is acting unreasonably or contravening the Act. In particular, I fail to understand the reference by the applicants to section 37 of the Act that deals with the purchase of real property for inclusion in the scheme by resolution without dissent.



The body corporate discussed the visitor car parking at a committee meeting on 28 July 2003 at which all owners were present. These minutes were presumably sent to all owners and the chairperson also sent a letter to all owners on 29 October 2003 referring to this issue. I am satisfied with the explanation of the committee that the car parks are adequately marked and it is not necessary to display a plan of the car park areas in order to identify the car parks.



The real issue is whether the body corporate has unreasonably refrained from issuing contravention notices and enforcing the by-laws. The applicants have not provided sufficient evidence to satisfy me that particular owners or occupiers are continually contravening the by-laws to the extent that the body corporate is unreasonably failing to take action against those persons. In particular, if the applicants have evidence that a particular person is contravening the by-laws then the applicants could have provided that evidence to the body corporate along with a notice of contravention of a by-law in the prescribed form (Act, 185). There is no evidence that the applicants have done this.

Car parking generally

There does seem to be some uncertainty about who constitutes a genuine visitor to the scheme and will be entitled to use the visitor car parks. There seems to be a general understanding that occupiers of the scheme are not entitled to use the visitor car parks. However, the distinction between an occupier and a visitor may not always be completely clear. As a general rule, persons letting a unit for a week (including family or friends accompanying those persons for the majority of the period let) would be classed as occupiers. Persons just visiting for one or two nights of that period would normally be classed as visitors. Similarly, if the relative of an owner/occupier regularly visits for one or two nights every month then that relative would normally be classed as a visitor. The more difficult questions arise when a person stays with someone for a number of nights or on a very regular basis. In those cases, it will be necessary to look at all the circumstances to determine if they are an occupier or a visitor.



The other issue is that the owners of lot 4 appear to consider that they are entitled to park on the common property in front of their exclusive use car park. The plan indicates that the car park is configured so that parking on this area of common property would not interfere with any other occupiers and that no other occupier would be able to make effective use of this area themselves without obstructing the lot 4 car park. However, by-law 2 provides that an occupier must not park on the common property except with the consent in writing of the body corporate. The owners of lot 4 claim that the committee gave them verbal consent to park in this area. However, if they have not been provided with this consent in writing then they should request the committee pass a resolution that they be given written consent to park in this area.

Order

I am not satisfied that that particular owners or occupiers are continually contravening the by-laws to the extent that it would be unreasonable for the body corporate to refrain from issuing contravention notices and taking any necessary further action to enforce the by-laws. The application is therefore dismissed.



However, I am hopeful that the information above will assist owners to avoid any further disputes about issues related to car parking in the scheme.