QLD: Q&A Authorising Common Property Changes or Improvements

I’m the caretaker for a Queensland strata scheme. Two fire doors lead to the pool area from reception, and guests often have trouble finding the pool because they think the fire doors are only for emergencies.

To help people locate the pool, I’ve installed small signs on both doors at my own expense.

The committee, via their liaison person, told me I need committee approval to put up these signs. Is this correct?

Answer: Yes, the committee, via their liaison person, is correct.

Yes, the committee, via their liaison person, is correct. The doors would be common property, and your sign would be viewed as an ‘improvement’ to common property. That requires approval. If the value of the improvement is up to $3,000, the committee can approve. Anything over that would need all owners to approve at a general meeting.

You would hope the committee would appreciate the spirit in which you have put up the sign, of course. It would seem to be in their interests as much as yours.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #714.

Question: Is the committee required to obtain owners’ consent for an improvement to a common area before submitting a DA to Council?

Our committee recently submitted a DA to Brisbane City Council for a material change to a common area rooftop. The DA was submitted without owners’ knowledge or written consent. The chair and secretary signed the form that certified they’d lodged the DA with “body corporate consent for making a development application under the Planning Act 20l6”.

I’ve viewed Frank Higginson’s maintenance vs improvements webinar, and I believe the rooftop refurbishment is an improvement.

Is the committee required to obtain owners’ written consent when submitting a DA to Council, and, if so, what resolution is required?

The Brisbane City Council website states:

If the application is required to be accompanied by owner’s consent, an application cannot be accepted as ‘properly made’ without it.

Answer: I would very much suggest seeking legal advice before the Council approves anything.

Committees can make decisions for bodies corporate unless they are ‘restricted issues’. Those issues are then reserved for a decision at a general meeting and include things like proceeding (other than one for a levy recovery or a BCCM application). The catch-all is also a decision that changes the ‘rights, privileges or obligations of owners’.

I tend to think that the decision to make an application to change the use of common property is exactly that, but there is always more that goes into these, so I would very much suggest seeking legal advice before Council approves anything.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the September 2024 edition of The QLD Strata Magazine.

Question: In our complex of nine units, the penthouse owner built a pergola and adjoining patio roof on their large landing. The patio roof needs repairs. Who is responsible for the repairs? Is the body corporate or the lot owner?

Answer: If you build it, you are typically responsible for maintaining it.

In Queensland, if you build it, then typically you are responsible to maintain it. The ‘large landing’ will either be on common property, or common property with exclusive use rights to the owner of the penthouse or simply on the title to the (penthouse) lot.

The default position under (say) the Standard Module is that in each of these three scenarios, the penthouse owner is responsible to maintain the patio roof; see sections 187(4)(b), 192(2) and 211(3).

There may, however, be exceptions, and the best way to start to track these down is to look for the approval for the improvement to be made. Approval is required to make an improvement to the common property for the benefit of the penthouse. So, there should be a committee or general meeting resolution for that approval. Once the approval is tracked down, it can be checked for details about maintenance obligations. Likewise, an approval is required to make an improvement inside an owner’s exclusive use area, so the same process should be followed.

That is however, unless the by-law already authorises the (patio) improvement. Where the by-law authorises the improvement, then the by-law should be checked for maintenance obligations. Finally, where the improvement is inside the owner’s lot, being the penthouse airspace, then the lot owner will be responsible for maintenance unless there was an approval (committee or general meeting resolution) and it provides to the contrary and that provision is not contrary to the Act. Such approvals are rare and usually given for a specific reason, such as the patio being constructed as part of a realignment or extension of the property boundary between the penthouse and the adjoining common property airspace.

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

This post appears in Strata News #661.

Question: Our committee was given an increased spending limit to improve the pool. Costs exceed the spending limit, and the pool still looks like a building site. Who is to blame?

The body corporate decided to improve our swimming pool. The committee’s spending limit was increased to $99,000 to complete the work.

The committee spent $205,000 without consultation with owners. Only half the work has been carried out. Owners won’t agree to the additional funds required to finish the pool. The pool area looks like a building site.

Does our body corporate manager share any responsibility for not managing the project’s budget?

Can the body corporate take action against the building manager overseeing the project?

I’m not a committee member. Can I put forward a grievance to the Commissioner’s Office regarding the committee’s behaviour? If not, what happens now?

Answer: The job needs to be finished, and then the assessment of what went wrong can begin.

We would need a lot more factual investigation before we could start pointing fingers, but it all starts with the contract for the works. What was included? What was excluded? Who was responsible for cost overruns?

I don’t think the Commissioner’s Office can really help yet. I think the job needs to be finished and then the assessment of what went wrong can begin. You certainly cannot leave the pool as just a hole in the ground, and the body corporate actually has a statutory responsibility to keep common property in good repair and condition – which is not maintaining what seems to be the status quo at the moment. Someone needs to take control, close it out, and then see if blame can be laid at anyone’s feet.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the October 2023 edition of The QLD Strata Magazine.

Question: We have maintenance and improvements that are required as per the legislation. What happens when, at the general meeting, the owners don’t approve the spending?

Answer: The body corporate is in breach of its statutory obligations, leaving it open to an adjudicator to appoint an administrator to perform the work.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #661.

Question: Can a Council compulsorily acquire an area of common property?

Answer: Yes.

Pursuant to s.5 of the_ Acquisition of Land Act (Qld) _1967 (‘ALA’), a constructing authority (such as the Gold Coast City Council) may take land from another person or entity (including a body corporate) for any permitted purpose. Schedule 1 of the ALA provides a comprehensive outline of purposes which may require an acquisition of land. For instance:

Purposes relating to transportation i.e. constructing parking, roadways and landing places;

Purposes relating to the environment i.e. the management, protection and conservation of areas or places; and

Purposes relating to education and cultural facilities i.e. construction of libraries, museums and schools.

Normally, a Council will engage in a voluntary acquisition process where it negotiates with the land owner (in this case, a body corporate) with a view to reaching a voluntary agreement prior to issuing a formal notice of intention to acquire land pursuant to s.7 of the ALA (‘Notice’). However, in some instances, the acquisition process may commence with the Notice.

The acquisition process is extremely complex and involves at least the following considerations:

general meeting approvals;

the preparation of new survey plans;

the filing of a new CMS;

impacts on lot entitlements (if any);

any basis to object to the resumption; and

the payment of compensation.

In light of the above, we strongly recommend that legal advice is sought if a body corporate is approached by a Council or a Notice is issued.

Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #660.

Question: Our body corporate wants owners to change the colour scheme of our federation building. Is it lawful for the body corporate to make owners change the colours of the outside of their houses?

Our body corporate, for maintenance purposes, wants owners to repainted the timber trims and roofs of their townhouses in a new colour scheme. No new colours have been decided on yet. The complex was built in brick Federation style and has red, green and cream-coloured paint with some ochre-coloured timber. I object to the changes the body corporate want us to make as I feel it will detract from the original intention of the building style. Is it lawful for the body corporate to make owners change the colours of the outside and roofs of their houses?

Answer: If the lots are in a standard format plan, there is less ability for the body corporate to control the colour scheme.

The answer will largely depend on whether the lots are created in either a:

building format plan such that the outside of the buildings that are being painted is common property; or

standard format plan such that the outside of the lots are part of the lot.

Building format plan

A change to the common property colour scheme amounts to an improvement to common property (as an improvement is broadly defined as a change). Given the cost of the painting works, I suspect that it will be beyond the committee’s spending limit such that a general meeting is required. The body corporate as a whole at a general meeting can approve an improvement (or colour scheme change) by:

Ordinary resolution if the cost is between $300 – $2000 for each lot in the scheme; or

Special resolution if the cost is more than $2,000 for each lot in the scheme (or the body corporate has already passed one ordinary resolution improvement in the same financial year).

The body corporate’s decision to change colours must be considered reasonable. It may be difficult for the objector to say that changing the colour scheme is unreasonable without some level of architectural or design advice.

Standard format plan

If the lots are in a standard format plan, there is less ability for the body corporate to control the colour scheme. However, it would depend on:

the condition of the existing paint (and whether the body corporate can compel owners to carry out painting); and

the by-laws in force for the scheme (and whether the body corporate has a by-law that allows it to regulate the paint colour).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the August 2023 edition of The QLD Strata Magazine.

Question: In a Building Format Plan, where is the boundary point between the lot and the common property? If an owner drills and screws into a boundary wall, why aren’t they making an improvement to common property?

An owner notified the committee they plan to renovate their kitchen, bathroom and laundry. These renovations include replacing the cabinets attached to boundary walls. The total cost of these works is estimated to be >$3,000.

Our building is under the Building Format Plan(BFP); no specific by-laws cover renovations.

Our body corporate manager advised that given the works are contained within the lot, approval for the works is not required. These are not improvements to common property.

In a BFP, where is the boundary point between the lot and the common property? If an owner drills and screws into a boundary wall, why aren’t they making an improvement to the common property?

Answer: Simply drilling into a boundary wall does not always equate to an improvement to the common property.

In a Building Format Plan, the boundary of lots is the midpoint of the structural elements (such as the boundary walls). If the boundary is between two lots, there is no common property involved – it is the two separate lots.

Common property will only come into the equation if the wall in question is the boundary separating the lot and the common property. However, simply drilling into a boundary wall does not always equate to an improvement to the common property. The work would need to extend beyond the midpoint of that wall (not the first paint layer).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: Many owners in our complex have installed motorised openers to their common property garage doors. The committee has ruled that, following an installation, the maintenance of the garage door becomes the responsibility of the owner. Can the committee do this when these installations should have no detrimental effect on the door or its operation?

Answer: The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor.

Where garage doors, between a lot and the common property, are and always were, motorised, then the lifting motor is part of the door and the Body Corporate is liable to maintain it; see for example The Crescent [2008] QBCCMCmr 56 (19 February 2008). That is because of the Body Corporate’s obligation to maintain the garage doors and the associated fittings under section 180(2)(a)(ii) of the Standard Module; i.e. ‘The Body Corporate must… maintain in good condition… doors, windows and associated fittings situated in a boundary wall separating a lot from common property’.

Where the same door was originally manual opening only, and has a motor added to it by an occupier for their benefit, then the Body Corporate is excused from maintaining the motor and associated fittings under s180(3).

The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor. Nothing in s180(3) supports that outcome. The only thing the Body Corporate is excused from maintaining is the fixture or fitting installed by the occupier; i.e. the motor and associated fittings. That however, is not the end of the storey. If any part of the upgrade by the occupier is made to or on the common property, then Body Corporate approval would be required under section 187 of the Standard Module. That approval can include a condition that the improvement be maintained by the lot owner. Indeed the lot owner must maintain the improvement unless the body corporate specifically excuses the lot owner from doing so; per section 187(4)(b).

The rub is whether the Body Corporate, when giving that approval, can purport to impose a condition on installation of the motor, that the lot owner thenceforth becomes liable to maintain the whole garage door. On balance, that is probably not a reasonable condition unless there was some reliable data to suggest that the addition of the motor would cause damage to the door. Which, of course, begs the question, why would a Body Corporate allow the installation at all if that was going to be the result?

The problem for the Body Corporate is that, like anyone else, it cannot ‘waive, or limit the exercise of, rights under’ the BCCM Act, per section 312. Imposing a condition that the occupier maintain the whole door, limits the occupiers right to require the Body Corporate to maintain the door under section 180. There is also support for such a condition being contrary to the scheme of the Act, back in section 180(5) of the Standard Module. Under that section the Body Corporate can recover the cost of fixing the garage door from the person who’s actions cause or contribute to the door being damaged. In summary then, if the entire automation upgrade is inside the lot, then the Body Corporate simply does not have a chance to impose its maintenance condition. If part of the upgrade is on common property, then the maintenance condition could be imposed, but there is every chance that it would be void. The Body Corporate does however get the last laugh – if the upgrade causes damage to the garage door, then while the Body Corporate has to fix the door, it can then recover the cost from the person who caused the damage; whether the occupier who installed the motor, or the occupier who used it to cause the damage, or either or both.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: If a lot owner applies for approval to have a deck constructed on their common property exclusive use area, does the Committee have the obligation or authority to require that City Council building regulations are followed? There is no mention of this authority in our by-laws.

Answer: Common property is still common property, whether it has been allocated as exclusive use or not.

The very first general function of a body corporate listed in the Act is ‘(t)he body corporate for a community titles scheme must — (a) administer the common property and body corporate assets for the benefit of the owners of the lots included in the scheme’.

Usually, the body corporate does this through the adoption and enforcement of by-laws which ‘…may only provide for … the administration, management and control of common property….’ and ‘…regulation of, including conditions applying to, the use and enjoyment of – … common property…’..

It’s a common misconception that the only by-laws that regulate the use of exclusive use areas of common property, are the exclusive by-laws themselves. Common property is still common property, whether it has been allocated as exclusive use or not. (As the bard would say ‘ A rose by any other name…’). Accordingly the first place to check is the ‘general’ by-laws. If there is nothing there, then check the relevant exclusive use by-law.

An exclusive use by-law may pre-authorise improvements to the exclusive use area, per section 193 of the Standard Module. Sometimes that pre-authorisation includes conditions. Absent such conditions, then section 193(3) requires the owner to obtain body corporate approval for the improvement. Any normal set of conditions is going to include conditions which require the owner to provide to the body corporate:

evidence of approval by the local authority / private certification before the works commence; and

evidence of compliance with the approval after the works are complete.

It is also worthy to note that the owner has to comply with all other laws, including the National Construction Code, whether the Body Corporate requires them to or not. Involving the Body Corporate before the works begin is all about stopping problems before they begin.

Michael Kleinschmidt Stratum Legal E: info@stratumlegal.com.au P: 07 5406 1282

This post appears in Strata News #590.

Question: In our 35 lot strata, we are currently discussing upgrading the WiFi infrastructure. How do we structure this? Who is responsible for what?

We are the caretakers and managers of a property in Port Douglas. We also own 2 lots in the 35 unit complex.

All parties are currently discussing upgrading the WiFi infrastructure in the building.

Whose cost would this be to cover? Is cabling and fibre the owners or managers cost? I presume hardware/software remains owned by the management?

Answer: These arrangements can (and do) work, provided everyone knows what the ‘deal’ is.

There is a fair bit of this going on at the moment with external providers effectively cutting out the big telco’s and offering cheaper and more flexible internet arrangements. But those do need someone onsite to manage and operate them, and that is usually the resident manager. What should happen is everyone should agree who is installing what, at whose cost and who will repair, replace and manage that and on what basis as part of any proposal of this nature. That should then be documented too in the formal approval of the body corporate to the improvement to the common property.

These arrangements can (and do) work, provided everyone knows what the ‘deal’ is.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #568.

Question: Section 180(1) of the regulations (standard module) states that “the body corporate must maintain common property in good condition ….”. If the common property is an item of swimming pool machinery that has broken down, is it permissible for a body corporate to resolve not to repair or replace that item and if so what type of resolution is required?

Answer: The question to ask is whether repairing or removing the item can be classified as an improvement to the pool.

The question to ask is whether repairing or removing the item can be classified as an improvement to the pool. If you are talking about some machinery that is defunct and perhaps has already been replaced by a more modern system then the change could be classified as an improvement and approved by the body corporate. On the other hand, if you are just looking for a cheap way out of not repairing or replacing the item and by doing this the condition of the pool will be degraded then the conditions around maintaining the common property should be applied.

In body corporate legislation, improvements can include changes made by addition, exception, omission or substitution. Removing some worthless machinery that is no longer required fits into that category.

How the improvement gets approved may will depend on the cost and the module you are in.

There are three standard limits requiring different approval levels. Committees can approve the change up to the committee spending limit multiplied by the number of lots. The default limit is $200, so at a 20 lot scheme the committee can typically make the approval up to $4000. After that, resolution is required at a general meeting. An ordinary resolution is applicable for costs below $2000 times the number of lots. So a 10 lot scheme can approve improvements up to $20,000. After that a special resolution is required.

See this link to the BCCM website for more details on spending limits.

As a next step you might want to get a quote for the removal of the machinery and look at calling a meeting to ratify the decision to do this.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #568.

Question: Our two main gates on our community are continuously breaking down. To save on costs, can we remove the gates entirely?

Good morning I live in a gated community and we are always having problems with our two sets of gates. One set doesn’t work at all and the main gates are continually breaking down. We have spent a considerable amount of money on the gates to try and get them working.

Can we remove the gates or do we need to seek permission from the council?

Answer: Removing the gate may not cost very much, so it is feasible that it could be taken down by a simple committee resolution.

The body corporate has the capacity to make changes to the common property and this could include the removal of the gates.

The question is what level of authority is required for that and what are the implications of proceeding?

Changing the gates would be considered an improvement. As per the BCCM website, An improvement can include:

a non-structural change, like installing air conditioning.

The likelihood is that this would be a non-structural change and such a change can include ‘adding, removing or swapping something’. Removing the gate would seem to fall into that category.

After that it comes down to cost. There are three standard improvement limits:

$200 (or up to $300 if approved) x the number of lots: committee resolution.

More than the committee spending limit but not more than $2000 per lot: ordinary resolution at a general meeting

More than $2000 times the number of lots: special resolution at a general meeting.

Removing the gate may not cost very much, so it is feasible that it could be taken down by a simple committee resolution.

However, there are some questions here about the capacity to remove a common property utility that many owners may want. Some people may have moved into the scheme specifically because it was a gated community. Many may value the level of security it offers.

Removing the gate might solve the immediate problem with its performance, but why wouldn’t you look at replacing it? That will be a more expensive option, but I think it has to at least be put to the owners. The body corporate also needs to remember that if it does not approve the removal of the gate, it has a statutory obligation to maintain it and keep it in good condition.

Other questions come to mind. Will the body corporate’s insurance be affected by removing the gate? How is security affected? If the body corporate removes the gate is it placing owners at risk? Will additional security measures be required? There are a number of questions that should be investigated before proceeding.vLastly, you ask about whether council approval is required. It may depend on the terms of the DA for your site. Certainly it is easier to check with them before rather than finding out you have made a mistake after the fact.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #556.

Question: Can an owner fasten a CCTV camera to common property without the Committee’s permission? What if they refuse to remove the camera?

Can an owner fasten a CCTV camera (recording both vision and sound),to common property without the Committee’s permission?

If the answer is no, must the camera and sound equipment be removed? What can the committee do if they have followed the correct procedure, but the owner refuses to cooperate?

Answer: Any improvement to common property requires committee approval.

Chris Irons, Strata Solve:

The answer is no. So when it comes to common property, an owner must seek approval to make what’s called an improvement to common property. The level of approval required is dependent upon the value of the work. But effectively, Frank, if it’s over $3,000 worth of improvement, it will go to a general meeting for approval.

Frank Higginson, Hynes Legal:

Even if it’s under $3,000, a committee can make a decision but it’s not obliged to. For something like that, it might choose to refer it to general meeting for approval. The simplest analogy is any improvement to common property requires that. If I want to go paint the wall in the gazebo pink in common property, then I need to get committee approval for it. So no.

In Queensland at least, you potentially would be off to the commissioner’s office for an order that it be removed. Although and again, it wouldn’t be legal to do it, it wouldn’t be the first time I’ve seen committee members or lot owners take the law into their own hands in the sense of just rip it down. That absolutely would happen too. Not that is a legal way to approach that particular issue. But that’s usually what happens because the Commission’s office will take 9 to 11 months to make a decision.

Chris Irons, Strata Solve:

One of the other options there, Frank, is that the owner could be invited to seek retrospective approval for the installation. In fact, that is typically one of the orders that comes out of the commissioner’s office. If the owner has not sought approval, then the owner can be asked to seek approval, and the committee or general meeting does have the power to do so retrospectively.

I think this person is looking at the scenario where all those options have been exhausted and the owner refuses to either do anything about it or refuses to seek approval. You can seek an order from the commissioner’s office and yes, absolutely it can be ordered to be removed and replaced back to how it was, yes.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: In response to a bylaw breach, our committee has created a section in the authorisations register allowing historic encroachments onto common property. Is this the correct process?

One lot owner had breached bylaws by encroachments onto common property. A form 1 was sent to the committee who maintained the breach was too hard to deal with. They created a section in the authorisations register allowing historic encroachments onto common property.

Should the committee have registered these encroachments on the CMS? This affects schedule A and B. What is the position of the CMS now that A and B are compromised? I feel this has left the rest of the CMS, including Bylaws, in a compromised position.

Answer: The Committee cannot validly authorise an owner to encroach onto the common property.

The Committee cannot validly authorise an owner to encroach onto the common property. An owner can be authorised to use an area of the common property to the exclusion of others if a lease, licence or exclusive use is granted at a general meeting of the Body Corporate.

We note that the CMS has not been amended as regards the encroachments. Accordingly, the CMS is valid and has not been affected by the Committee’s purported authorisation of the encroachments.

In the event a resolution without dissent at a general meeting has been passed granting an owner exclusive use of an area of the common property, a new CMS must be registered within three months to reflect the grant of exclusive use. A new CMS does not need to be registered upon the grant of a lease or licence.

If an owner objects to a lease, licence or exclusive use being granted, they should address these concerns with the Committee and/or make an application to the Commissioner’s Office.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #480.

Question: One owner wishes to alter their property but the alterations would include making structural changes to the common lot area. Does this require a resolution without dissent or is it a special resolution?

Our Body Corporate is a 4 unit complex under the Small Schemes Module.

One owner wishes to alter their property, primarily by adding a deck in an area marked exclusive use, but the alterations would include making structural changes to the common lot area by adding a covered area which would need to attach to the units external wall.

I am unclear if this type of change requires a resolution without dissent or if it’s just a special resolution. Further, if all they proposed was the deck alteration in the exclusive use area, what type of resolution is needed.

Answer: The by-law may authorise the owner to make the improvement. If it doesn’t and the value of the improvement is more than $3,000, then it can be approved by ordinary resolution.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #457.

Question: Can our duplex neighbours make changes to their front gardens and park an old car and a caravan at the front, making the duplex look untidy? What can we do?

We live in a duplex. The front of building has a large entrance driveway in the middle of the two duplexes leading to a double garage. The front of the building was very neat and tidy and the garden’s appearance was the same on both lots.

The other lot owner has left a 20ft caravan and old car on the front lawn for years. They have also put artificial grass down and used different colour rocks on garden. Are they able to make these changes? What can we do?

Answer: If the area in question is common property, then one owner cannot make these changes without the consent of the other owner.

There are a few factors that need to be considered.

If the area in question is common property, then one owner cannot make these changes without the consent of the other owner. I recommend checking the survey plans to determine whether the area is common property.

Additionally, you should check your by-laws to determine whether the other owner is contravening any by-laws. If the by-laws are being contravened then the legislative process should be followed to pursue the contravention.

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #424.

Question: We are currently collecting bottles, cans etc and recycling them. All the money is being used to improve common areas. One owner is demanding all monies from the cans be run through the books. Is this really necessary?

We are 17 apartments in a tower complex in New Farm Brisbane.

We are currently collecting bottles, cans etc as a group of friends and recycling them. All the money is being used to improve common areas and create a community garden.

We don’t claim any costs to the body corporate such as mileage to transport the bottles etc.

We have one recalcitrant owner demanding that all monies from the cans must be run through the books. All money collected is being spent to increase the value of the complex for all the owners. Do we stop the recycling process to collect money and just bill all the owners from the administration fund as we do improvements or can the recycling money be used to continue the improvements?

We are more than happy to show the collection receipts to anyone interested. The recycling funds are fully transparent to the body corporate committee.

Answer: A body corporate needs to account for every cent it both spends and receives.

A body corporate needs to account for every cent it both spends and receives. There really isn’t much room to be flexible with that and it’s not clear to me what arrangement you have in place. Where is the money from the recycling going – to another, non body corporate bank account? If so then that might indeed be a problem.

Another issue here is that you’re doing work on common property and seemingly, making an improvement to common property. Has that been authorised? Are you using money from the recycling for that work? As an aside, if owners and residents are doing that work – as seems to be the case – are they properly insured for it?

Your efforts here are to be applauded. It isn’t often you find a body corporate engaged enough to work this way. That said, that admirable effort doesn’t avoid the need for due process to be followed because at the end of the day a body corporate is governed by a very prescriptive set of rules which are in place for a reason. As a minimum I’d suggest your efforts be formalised with a motion for approval at a general meeting and noting my comments above. You might want to get legal advice before proceeding, I know that that sounds extreme for what is a voluntary effort but chances are if one person is unhappy, others are too, or will be. If you get things formally and properly approved then that’s your basis for continuing on with what you are doing.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #367.

Question: I want to build a permanent pergola that will go into the common property airspace. Do I need approval?

Answer: Yes. Any use of common property airspace requires approval.

Yes.

Any use of common property airspace requires approval. The nature of the approval depends on the rights you want.

To build a permanent pergola that uses common property airspace you will need either:

exclusive use rights to that part of the common property airspace; or

an indefinite lease or licence.

Both of these require a resolution without dissent at a general meeting. If the pergola is only temporary, then you may be able to obtain a lease or licence by way of special resolution, but this depends on the length of the lease or licence and the regulation module applying to your scheme.

In addition to the above, a pergola extending into the common property airspace will generally constitute an improvement to common property. That is likely to require an ordinary resolution, depending on the cost of the pergola. It is also important to check your by-laws as approval to changes in the appearance of your lot is likely to also be required.

Alanna Hill Mathews Hunt Legal E: alanna.hill@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #393.

Question: We have an application by a lot owner to improve common property. Is this considered a minor improvement as it is under $3000? What is the process for approving the application?

A resident who lives on the top floor of our apartment building has sought approval to place insulation in the space between the ceiling and the roof.

This space has fire sprinklers, air conducting ducting and lighting. It is common property. It is intended that the insulation be sprayed into the ceiling.

Initially, the project was to include wall cavities – but this has now been abandoned. The total cost is $2700 (GST inclusive).

This is an application by a lot owner to improve common property.

The question is – who can approve the application?

I understand the law provides that there are minor and major improvements to Common Property. Minor improvements are under $3000 and can be approved by the committee. Major improvements are over $3000 and must go to a general meeting.

We are regulated by the accommodation module. Work cannot be segregated to get under the $3000.

Is my interpretation of the law correct? Also what issues should be considered when granting approval?

Answer: Beyond the dollar value, the committee must act reasonably and this might take on a few forms.

Your interpretation is right. If it’s an improvement to common property then authorisation is based upon the value of the improvement.

Beyond the dollar value, the committee must act reasonably and this might take on a few forms. The committee might think it reasonable, for example, to query if any improvement impinges upon amenity or may cause a nuisance in the future. What about conditions? Is the work likely to cause disruption on the scheme? Does the committee have enough information in front of it (e.g., quotes, drawings, reports) to make a decision?

Also, are there any by-laws for the scheme which have an impact on this authorisation?

These would be your consideration in the scenario you describe.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #391.

Question: Our caretaker has taken over 5 basement visitor car parks to use for storage. We already have an external area enclosed for this purpose. Should this be allowed?

Our caretaker with Committee majority approval has taken over 5 basement visitor car parks to put garden equipment and rubbish bins on. We already have an external area enclosed for this purpose as well as a designated garbage room – both on common property.

Most committee members holiday let through the caretaker and approve of this but some lots do not have car parks and need this parking for both their own use and visitors.

Should this be allowed and if not how can it be corrected?

Answer: Get a copy of the minutes where this authorisation apparently took place.

Decisions about the use of common property – for example, leasing out common property – are not decisions the committee can make and should be subject to a vote at a general meeting. Different resolution types apply depending upon the proposed used.

There is also the ability for a caretaker to have what is known as an occupation authority over a part of the common property and that’s for where it is necessary to have that occupation for the performance of their duties. Refer to section 136 of the Standard Module.

If you haven’t already, get a copy of the minutes where this authorisation apparently took place and if it appears that the authorisation did not happen correctly, then yes, there is scope for this to be amended. You may need to seek legal advice, particularly if there are some contractual arrangements which have been entered into.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #387.

Question: We’ve discovered over 40 unauthorised air conditioners installed around the building on common property. They have been accessing common property power. What do we do now?

Our 200+ Unit complex needs a new roof. During the process of obtaining quotes, it was discovered that around 40+ unidentified and unauthorized air conditioners have been installed on common property, on the roof, in the garden, in the basement, etc.

These will be identified and owners asked to remove or make their air conditioners compliant. However, if these have been attached to common power and the energy used to run them has been paid for by all owners, what can be done and who will be ultimately responsible for the money used to run them? The caretaker, the strata manager, the committee or individual owners?

We are Building Format Plan, Accommodation Module and a 22 yr old BC.

Answer: You’ll need to determine if it is indeed ‘common property power’.

You’ll need to firstly determine if it is indeed ‘common property power’ and sometimes that is not as straightforward as it seems. Then you’d need to find some way of determining how much power has been used and what kind of price you can apportion relative to those air-conditioning installations. On the face of it, that sounds like a difficult task. That will be the role of the body corporate – and the committee as its executive arm – to decide how to go about that.

It may be that one of the outcomes would be that, assuming the cost issues noted above could be resolved, costs could be apportioned as a body corporate debt against those owners. Prior to going down that path, though, I would strongly urge legal advice be sought.

I’d also urge caution around the ‘remove or make compliant’ comment. The body corporate must act reasonably in everything it does and it may be that the work required to do either the ‘remove or make complaint’ actions may come into conflict with that.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #367.

Question: A lot owner has replaced an artwork in a common area foyer with their own artwork. Can a lot owner make changes to the appearance of common property without Body Corporate approval?

A lot owner has removed existing pictures from a common area/foyer on our floor in our apartment complex and installed her own artwork in their place.

There was no consultation with other lot owners regarding this change of decoration. The previous artwork had been in place with Body Corporate approval.

Can this lot owner make changes to the appearance of common property without consulting other lot owners or the Body Corporate?

Answer: The body corporate does not want to sanction a situation where lot owners can install any kind of decoration or ornament onto the scheme’s common property, without it first being approved by the body corporate.

For the purpose of this answer, it is assumed the initial artwork is not a body corporate asset and the lot owner who installed that artwork does not have exclusive use rights over the common property in question.

Prior to the installation of the initial artwork, authorisation was obtained from the body corporate. The new artwork is there without approval, so the body corporate can require its removal and reinstatement of the initial artwork. Alternatively, the body corporate can approve the display of the new artwork on the common property, preferably subject to the initial artwork being returned to its rightful owner.

Your query suggests that someone might have already made an improvement on common property without approval. If so, the committee should be communicating with that owner about it. Options include asking the owner to seek approval or asking the owner to remove the improvement. That latter option might, of course, be difficult depending on what the improvement is. Ultimately the committee has to decide what it wants to do about the situation.

The body corporate does not want to sanction a situation where lot owners can install any kind of decoration or ornament onto the scheme’s common property, without it first being approved by the body corporate.

John Coleman Bugden Allen Lawyers E: john@bugdenallenlawyers.com.au P: 07 3905 9260

This post appears in Strata News #347.

Question: If a lot owner makes a garden on common property without approval who gives approval for this unauthorised improvement on common property? Is it the body corporate committee or body corporate?

Answer: The committee can approve an improvement by an owner under certain circumstances.

The committee can approve an improvement by an owner if the:

total cost is less than $3,000

improvement does not detract from the appearance of a lot

body corporate is satisfied that the use and enjoyment of the improvement is not likely to be a breach of the owner’s obligations (e.g. by not causing a nuisance).

Otherwise, approval needs to be by ordinary resolution at a general meeting.

Before any of this, though, I’d suggest there needs to be certainty about whether it is actually common property. What seems ‘obviously’ common property may not be, depending upon the circumstances.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #327.

Question: Some residents have created a garden on common property. If someone gets injured in the garden, who is responsible?

Several years ago a few residents established a small community herb garden with a few pavers throughout so the herbs could be easily reached. Recently they have put some small wooden stakes around several small beds – probably to protect some seeds. This has all be done on common property.

One of the other resident at the building has been seen and heard encouraging her grandchildren to play, run and jump on the pavers and around the garden. The gardeners are concerned that if one of the children fell and damaged themselves (eg lost the sight of an eye) they might be held responsible and be sued. Who would be held responsible, the gardeners or the Body Corporate?

Answer: If there was some sort of hazard or unsafe installation, the body corporate would need to fix it.

It would normally fall to the body corporate and they are obliged to be insured for this type of injury.

The body corporate can only step in if the conduct amounts to a hazard.

Kids are going to play – there is nothing wrong with that. So if the pavers/gardens/stakes are not installed in a way that is unsafe then there wouldn’t be any obligations on the body corporate. If there was some sort of hazard or unsafe installation, the body corporate would need to fix that.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #237.

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