Overview
The Body Corporate has a strict statutory obligation to maintain the common property in a good condition.
Legal Principles
Section 152 of the Body Corporate and Community Management Act 1997 (‘BCCM Act’), section 157 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 and section 159 of the Body Corporate and Community Management (Standard Module) Regulation 2008 stipulates that the Body Corporate must maintain the common property in a good condition and manage the common property reasonably, for the benefit of the lot owners. Commonly, within the Community Management Statement there will also be a Clause confirming the Body Corporates obligation to maintain the common property.
Disputes
A dispute may arise in circumstances where damage has occurred to your property due to the Body Corporates failure to maintain the common property. In the recent adjudication of Waterline At Oceanside [2021] QBCCMCmr 44, the Adjudicator was satisfied that the Body Corporate had contravened the BCCM Act and made an Order for the Body Corporate to pay damages in the amount of $4,289.55.
Summary of the facts
The applicant in this matter noticed stains on the roof of his vehicle which was parked in the parking complex. The applicant identified the stain as a calcification build up, resulting a leak in the utility pipe above his vehicle. The utility pipe formed part of the common property. The applicant brought an application for adjudication, seeking damages from the Body Corporate for failing to maintain the common property. The Adjudicator was satisfied that the Body Corporate failed to maintain the common property and made an Order for the Body Corporate to pay damages in the amount of $4,289.55 to repair the damaged paintwork of the vehicle.
Dispute Resolution
Commonly, a party must attempt to resolve the dispute internally before proceeding elsewhere, which can include notifying the Body Corporate of the issue, notifying the body corporate committee in writing of an issue, or raising the matter for consideration at a general meeting. Unfortunately, if you are not an owner you will be unable to raise the matter at general meeting.
If a resolution cannot be obtained at this stage, the matters can be referred to the Office of the Commissioner for Body Corporate and Community Management by way of an application for a conciliation conference. If the matter fails to be resolved at the conciliation conference, an application for an adjudication can be made. If the matter proceeds to an adjudication, the Body Corporate as well as any other Lot owners will be able to provide submissions prior to the adjudicator making their final decision.
Who can make an application?
Section 35(4) of the BCCM Act says:
“If the occupier of the lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier.”
Therefore, an owner or an occupier of the Lot may make an application for a conciliation conference or adjudication.
Remedy
Section 281 of the BCCM Act provides that if an adjudicator is satisfied that the applicant has suffered damaged to their property because of a Body Corporates failure to maintain the common property in contravention of the BCCM Act or the community management statement. The adjudicator can order the Body Corporate to carry out repairs to the damaged property or pay the applicant a fixed amount as reimbursement for repairs (maximum amount of $10,000.00).
If you have any questions in relation to Body Corporate disputes, please do not hesitate to contact the team at Miller Sockhill Lawyers.