Question: Can a committee remove shared facilities on common property, such as a tap, or does this require a general meeting vote?
Can a committee decide to remove shared facilities, such as a tap on common property, that residents occasionally use? For example, could the committee make this decision at the committee level to save water or reduce maintenance costs? Or would removing even a small shared facility be considered a restricted issue that requires approval at a general meeting?
Answer: The legal definition of an improvement speaks of a ‘change’, which extends to include addition, removal, relocation, and reconfiguration.
‘Improvement’ has a technical meaning in the legislation, which includes ‘a non-structural change, including, for example, the installation of air conditioning’. Section 186 of the Standard Module uses that definition to permit improvements to the common property by the body corporate, subject to conditions including as to cost and the type/level of approval required.
While ‘common sense’ may suggest that an ‘improvement’ can only be the addition of something, the legal definition speaks of a ‘change’, which extends to include addition, removal, relocation, reconfiguration … and you get the point. Bodies corporate are allowed to take things away from common property, including things much more significant than a tap; see, for example, The Village Centre at Kelvin Grove [2021] QBCCMCmr 464.
Finally, one man’s meat is another man’s poison. For a lot owner whose bedroom is on the other side of a wall that has a dripping common property tap on it, the removal of said tap is definitely an improvement!
This post appears in Strata News #758.
Michael Kleinschmidt
Bugden Allen
E: michael.kleinschmidt@bagl.com.au
P: 07 5406 1280
Our by-laws have a by-law that ban damage the garden, plants, trees etc, but does not regulate gardening. A number of tenants has damaged the ground to dig ground, remove mulch and plant new plants and instaled garden beds. No approval for improvement of the common property by a owner has been made by the committee. There are 2 issues: not damage and improvement. Cost is another issue, the body corporate didnt pay soil, garden bed, plats. And no watering the BC provide at the scheme as part if maintanance. What is possible to do in a situation like that with an apathy of the committee? Thank you.
It’s not quite clear but do you mean that some occupants have changed common property gardens without permission. If so the body corporate would be within its rights to return t the site to its preferred condition.
The committee would usually drive that action but if they are apathetic the could be difficult. Joining the Committee would be one way to start changing that. Otherwise you could submit an owners motion to the Committee to force them to vote on the issue. If they vote in breach of the legislation you could then challenge the issue via the Commissioner’s office. It’s a long road but you can bring about change if you put the effort in.
Hello. An owner has notified the Committee that they are planning 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 and there are no specific by-laws covering renovations of any nature.
Our Body Corporate manager has provided advice that given the works are contained within the lot, approval for the works is not required – I.e. it is not improvements to common property.
My understanding for boundary walls in a BUP is that the inside wall is “within the lot” and anything past the paint was common property. So if you’re drilling & screwing into a boundary wall, you’re making an improvement aren’t you?
Hi Scott
Todd Garsden from Mahoneys has responded to your comment in the article above.
Hi, we are in a Complex with 31 Townhouses. My question is, there is a boardwalk that runs along the front of the complex and to stop people just walking through our complex, we have installed a gate. It is not locked at this stage so all owners have access, its really just to stop the honest people coming through and offering a small amount of security. We held a committee meeting at the premises and a majority vote for approval was obtained, one of the committee has now recinded her vote and is demanding the gate be removed. She has said that something like this can only be installed with a majority vote from all the owners, we believe it could be approved by a majority vote of the committee, could you please clarify what the correct way for having this gate approved is?
Regards
Martina
Hi Martina
The following response has been provided by Michael Kleinschmidt, Bugden Allen Graham Lawyers:
This is a legal advice question. The writer needs to go get specific legal advice.
p: 07 5406 1282
e: michael.kleinschmidt@bagl.com.au
W: http://www.bagl.com.au
Hi there, my question is similar to the pergola and I was wondering if the lot owner doesn’t have a by law to do it or neither had a general meeting for approval, and the construction was approved by verbal or written agreement by the other owners, is it possible to obtain an order for it to get removed?
Hi Lorenna
The above question should assist:
Question: Can an owner fasten a CCTV camera to common property without the Committee’s permission? What if they refuse to remove the camera?
A lot of these questions mention committees approval meeting .What about duplex’s where their are only two owners . Each has a 50% say in what happens to common areas and one wont agree to anything the other wants to do. Do you need to go to court every time and who pays
Hi Mick
These two articles should assist:
QLD: FAQ – Owning in a duplex or two-lot scheme
QLD: Q&A Body Corporate Rules and Queensland Duplex Insurance
As regards the query on Sect.180 and replacement of a swimming pool equipment, please excuse my ignorance but is such equipment “common property” such as to attract this section or is it rather a body corporate asset? I don’t believe the responder really answered the inquirer’s query but would appreciate whether the definition “common property ” can be “expanded to include an asset.
Re Lookup#568 and William Marquand’s comment about spending limits re improvements to swimming pool machinery.
Another threshold Q that may need to be clarified is whether the machinery is common property (including utility services infrastructure), or a body corporate asset. Sat in a Cmttee Meeting just recently where there was lengthy debate about the value of a Box Thing to be installed in a exclusive use carpark, ie whether it was under or over the $3000 limit for committee approval.. They were looking at it in terms of the rules regarding improvements to CPty by the owner for the owner. Then it emerged that the Box Thing is free standing, not affixed to the CPty in any way, and consequently Not an improvement TO CPty?
Have seen similar debate about the purchase of a pool robot, one where you plug it in, throw it in, and turn it on. At the end of the cleaning session, you retrieve it and store it in the Pool Shed…safe from sticky little fingers.. This would be an amenity, not CPty…and different rules apply?
Hi Ross,
Thanks for the comment – it raises an interesting point.
There is some definition of when as asset becomes common property. As per the BCCM website, assets are defined as:
Any real or personal property acquired by the body corporate, other than property that is incorporated into and becomes part of the common property. Body corporate assets may be any property an individual is capable of acquiring.
With the following example provided:
An air-conditioning unit may be a body corporate asset when bought by a body corporate, but it will become part of common property when it is installed as a fixture.
The machinery in this case could be considered in that context. If it was built in it seems like it was common property.
What would happen if the machinery was just free-standing?
I think the real question here is whether the machinery is required for the maintenance of the pool or not. If it is required for the maintenance of the pool it should be replaced. If not then not. Ultimately, the questions about the technicality of the legislation seem less important than the wider question of what is required to keep the pool in good condition. If the owners look at the question in that context it is probably easier to answer.
Thanks,
Will
Re Lookup#568 and William Marquand’s comment about spending limits re improvements…. in particular:
“Committees can approve the change up to the committee spending limit multiplied by the number of lots.”
What happens if the Committee Spending Limit (CSL)has been varied by the BC (from the default $200 x No. of Lots) and is higher than the Basic Improvements Limit (BIL) which is always $300 x No, of Lots, and which cannot be varied by the BC.?
For example, where the BC, with 62 lots, has increased their CSL to $35,000, the BIL is $18,600 and the proposed expenditure is $22,000. Does the BIL Rule mean it is a restricted issue and a resolution is required from the BC in general meeting?
Hi all,
I am an owner of a ground floor apartment and we are having issues with owner next door to us.. they have planted a few plants in the common area right in front of my window where I usually park my car as there is no parks on street and my car port is already full.
They did not inform me about planting the plants there and now I got no where to park my car. So I’m just wondering if they are allowed to do this?? Also if it’s not allowed could I take the plants out aswell? Thanks please let me know
Hi,
As a start point, you might want to talk to your neighbour. If you can have some mutual agreement that is a good place to start. If you can’t be cordial, contact your committee or body corporate manager and see what they think.
For what it is worth it sounds like both you and your neighbour might be using the common property without approval. You by parking your car there and the neighbour by planting flowers there. Have either of you got written permission for this activity? If not then really it is up to the committee and body corporate to determine what is permissible in the space – if anything.
Thanks,
Will
Hi all
We are a building of 62 units registered early 1982.. Whereas for .decades we had unit lot entitlements on all floors calculated on footprint (2br 6, one bedroom 5 – total of 22 with an exception of 2 3br units on the 15th floor (sub penthouse where they were 8 each) . The two penthouses on the 16th floor were calculated at 11 each – 22. Most floors with the exception of the ground floor had 2x 2 bedroom units and 2x 1bedroom units.
Around 2014 this changed and every unit had the same unit entitlement in that the 2 level penthouses on the 16th floor pay the same levies one bedroom units in the building.
This decision was made by the committee (5 members – 2 members were substantial beneficiaries and a third a minor beneficiary. The 2 committee members with one bedroom units voted in favour after all owners were advised in circulars from the Body Corporate Manager [name removed by admin] that there was nothing that anyone could do and the decision was to be made by the committee.
I later searched the records to find that approx. 21 owners of single bedroom units had objected and these objections were ignored by the Body Corporate Manager and the committee.
The main beneficiary on the committee (a penthouse owner) raced to solicitiors to have the CMS changed
Is there a way to have the CMS unit entitlements restored for the benefit of owners of 1 bedroom units
I have a 2 bedroom unit and am a minor beneficiary but would happily give this up to restore reasonable levies for one bedroom unit owners which do not reflect the value of their one bedroom unit?.
A penthouse may be coming up for sale with these favourable levies and I hear the asking price may be $2 million. One bedroom units with high levies have trouble getting a fair price in comparison. i.e. I think best prices are under $280,000
Can owners vote in a general meeting to change the CMS and unit entitlements to original allocations in 1982.
Is it illegal to tow from either visitor parking or allocated lots in our basement? Our building manager signed a towing contract WITHOUT body corporate approval.. he had my daughter’s car towed(which I had parked in a basement carpark with authority from the carpark occupant) without asking me to move it or advising it would be towed ?
EVERYTHING I’ve read says that in strata you can’t tow without an adjudicator’s order? HELP PLEASE
I am looking to install a timber deck from our main ground floor patio, to the smaller patio, that gives us access to another area to sit at and enjoy. The smaller area also gives us access to the street through our gate.The deck will be of a low level height as it will be come up to the lower step only. (only two steps high) There is two units above us. The decking is 6 metres x 3 metres and a ground level height of 30 centimetres.The deck would blend in and comply with the colors of the building. Do i need council approval and also body corp approval
Hi Les
This article about QLD Renovation should assist: QLD: Q&A Renovations, Altering Common Property and Changing the Appearance of the Lot
From Chris Irons says:
“[…] …the committee must act reasonably and this might take on *a few forms*. …the body corporate must act reasonably in everything it does.. .[…]”
Allow me to in_*form* everyone that, because it is known writ large that many committees are on record as not having acted *reasonably*, with the *word’s* import being so-highly subjective that it’s reasonably risible, plus the fact that it is likely that far many more committees that haven’t as yet been found to have acted unreasonably – but have in fact – than those that have, ‘it stands to reason’ that it is feckless folly on anyone’s part to stipulate that a committee “must act reasonably” when this stipulation hasn’t a hope in hades of being thoroughly policed; and any law that isn’t policed properly, isn’t but a bad law, it is bad *form* to boot. QED
Our Chairperson put a gate on the glass front of his balcony which is part of the common property. He did this without BC approval & then withdrew the motion. This was 2 years ago and he never replaced the original rail that was cut to install the gate
We have a 136 unit development and at the recent AGM the gate was a motion on the agenda with no disclosure it was for the chairperson. We were told that putting a gate was an improvement to the common property and therefore subject to an ordinary resolution which of course was voted for and passed this time with the help of the chairperson’s fan club. There were 32 yes votes, 8 no & several abstaining. As the chairperson lives in this unit and there is no reason to use the balcony by any trades or anyone else we cannot see how this qualifies as an improvement. For example, what happens if and when he is no longer a chairperson. Other advice we received would be that as this could be defined as exclusive use it required a no dissent resolution
At the very least, surely the chairperson should disclose that it is his unit and withdraw from the vote and chair when vote takes place
Could you please advise your thoughts on this matter?
“improvement” has a pretty broad meaning in our strata world eg includes change of external appearance.
For a start, have a look at the Dictionary meaning in the Schedule of the BCCM Act:
“Improvement” includes—
(a) the erection of a building; and
(b) a structural change; and
(c) a non-structural change, including, for example, the installation of air conditioning.
Note also the definition of “change” in the Acts Interpretation Act 1954, Schedule 1, —
“Change” includes addition
Hi Danny
The following response has been provided by Chris Irons, Hynes Legal:
Conflict of interest provisions only apply to committee meetings. There’s no conflict of interest obligations for a general meeting and no obligation on the chairperson to disclose any interest in the motion. Putting it more bluntly, at a general meeting EVERYONE is conflicted, potentially, which in turn means everyone can and does vote the way they want. Whether they are someone’s ‘fan club’ or not.
That said, that doesn’t change the fact that (1) a body corporate must act reasonably and (2) the correct resolution types must be used. On (1), if you believe the passed motion was not reasonable, you can challenge it but the onus is on you to demonstrate why it wasn’t reasonable. Your ‘conflict of interest’ argument alone won’t cut it, I wouldn’t think. On (2), you say you have ‘advice’ it should have been a resolution without dissent and again, you can challenge on that basis but again you’d need to demonstrate why the resolution type was incorrect – and in that regard, you would want to make sure your advice was sound before you proceeded down that path.
Your query suggests your issues go well beyond this scenario and that you have some concerns about the chairperson. Perhaps focus on that for a moment: what do you want to do about that? Replace the chairperson? And if so, with whom? Or, do you want to write to other owners about your concerns? You can do that if you have a copy of the roll.
I’d suggest maybe you hit the pause button for a moment and reflect on the above and then decide which way you want to go with this issue. You might need to seek some (other) qualified, legal advice also.
Body corporate have recently removed the cock from every tap located in common property thus denying any owner/occupant the benefit of access to external water on the site. No communication or justification has been provided to any lot owner regarding this action. Can this be done without referring to lot owner to vote?
Hi Terry
The following response has been provided by Chris Irons, Hynes Legal:
They can, in some cases, depending on the extent of the work and its cost. Even if they were entitled to do it, there should be a minute of their decision to do so. You’re saying there is none.
Assuming no minutes are forthcoming, your next step is writing to the committee asking for the minutes of their decision and expressing your concerns. You could also consider attempting to call an extraordinary general meeting to have owners vote on a motion to reinstall (I’m not a plumbing expert so I’m not sure if they can easily be reinstalled). You’ll need signatures from at least 25% of all owners for that.
If you have no success with these approaches then you can dispute the situation through the Commissioner’s Office.
Hi there. 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 an approval?
SD
Hi Steve
Chris Irons, Hynes Legal has responded to your question in the article above.
Accomodation Module
Can a BC committee change the use of a portion of common Property to be used as a storage area.?
Does it need to go to an AGM ?
Hi Charles
We have responded to a similar question in the post above as a Q&A – 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?
Do you know of any precedents if lit owners purchasing ‘exclusive use’ common areas please ?
Hi Chris
We have responded to this question in the following post as a Q&A – QLD: Q&A Purchasing Exclusive Use Common Areas
Hi there is no improvement for this so called garden the owner just puts all dead leaves against common fence on common grounds this may lead to a habitat for white ants ,rodents snakes plus rotting the bottom of fence due to moisture some places leaves are up to 600mm high along the fence 30 metres long
cheers for your information