Body Corporate Common Property
Can a Lot Owner Force the granting of Exclusive Use?
Yes, potentially.
Section 171 of the Body Corporate and Community Management Act 1997 (“BCCMA”) sets out the requirements for the granting of exclusive use of common property. Relevantly –
- It must be identified in the proposed by-law;
- The lot owner who is getting the benefit of the exclusive use must agree in writing to the allocation before the passing of the resolution or vote personally in the resolution;
- The resolution must pass without dissent.
The 3rd term above, requiring the resolution without dissent, is usually problematic when an owner is trying to pass a Motion to grant them exclusive use of common property. However, if a Motion to obtain Exclusive Use is defeated at a general meeting it is not necessarily fatal to the exercise.
Where a member or members of a body corporate are dissatisfied with the result of a Motion then the Dispute Resolution procedures under chapter 6 of the BCCMA can be utilised and an order can be sought under s276 of the BCCMA that a Motion is passed. Schedule 5 of the BCCMA lists Orders which an Adjudicator can make. Relevantly at item 10 of schedule 5 it states that if an adjudicator is satisfied that a motion “considered by a general meeting of the body corporate and requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable” an order can be made giving effect to the motion as proposed, or a variation of the motion as proposed. The Office of the Commissioner for Body Corporate and Community Management has jurisdiction to adjudicate on a dispute of this nature. Decisions of that authority can then be referred to QCAT for appeal.
The case of Ainsworth v Albrecht [2016] HCA 40 is the authority on disputes of this nature as this case went all the way to the High Court of Australia.
The relevant facts of this case were –
- A Lot Owner put forward a motion to be granted exclusive use of common property being airspace between two decks on his lot (he wanted to connect the decks with further decking);
- The motion was defeated;
- The Lot Owner utilised the Dispute Resolution procedure in the BCCMA and the commissioner approved the Motion, the Body Corporate successfully appealed to QCAT, the lot owner then successfully appealed to the Court of Appeal, the Body Corporate then appealed to the High Court of Australia;
- Ultimately the High Court’s decision found in favour of the Body Corporate for the following reasons –
- The court found that the Adjudicator should have focused on the dissenting lot owner grounds for opposing the Motion and whether those grounds were reasonable;
- The unreasonableness of opposition to the proposal is to be determined having regard to the proprietary rights that the opposing lot owners have as lot owners in the scheme;
- Nothing in the BCCMA requires a lot owner to assist another lot owner to enhance that lot owner’s interest in the scheme or suggests an adjudicator can enforce such requirement;
- The proposal in question could create reasonable apprehension from dissenting lot owners that their property rights within the scheme would be adversely affected.
- Whilst the High Court ruled in favour of the Body Corporate and the motion for the grant of exclusive use failed the High Court did confirm that an adjudicator could overturn a Body Corporate’s decision if the proposal, could not, on any rational view, adversely affect the material enjoyment of an opponent’s property rights or if the opposition to the proposal was prompted by spite or ill-will.
The commissioner has utilised the test in Ainsworth to find in favour of the lot owner seeking the exclusive use. In the matter of Riverside Mooloolaba [2018] QBCCMCmr 503 there was only one dissenting lot owner to the Motion. The commissioner deemed that this opposition was unreasonable in circumstances where this lot owner had a history of dissent, made unreasonable demands for payment from the body corporate and raised unreasonable arguments in respect of maintenance of the proposed exclusive use areas.
In conclusion, a lot owner could force the granting to themselves of exclusive use of an area of common property by making an appropriate Application. The success or otherwise of an Application to the commissioner would turn on the reasonableness of the opposition and whether they have reasonable concerns that their proprietary rights are to be adversely affected or such position is irrational or prompted by spite or ill-will.
Anthony Miller, 28th June 2024