QLD: Q&A Renovations, Altering Common Property and Changing the Appearance of the Lot

A unit owner has made several unauthorised changes to common property over the past years, including installing skylights, a cover over their balcony and a keypad lock to their main entrance door. The body corporate would like to reinstate all affected common property to its original state. Is there a statute of limitations preventing the body corporate from taking such action?

Answer: While there is no ‘statute of limitations’ issue, a body corporate must act reasonably in the discharge of its powers.

Unauthorised improvements to the common property by lot owners / occupiers are distressingly common. Whether through ignorance or outright avoidance, body corporate approval is often not sought when it must be.

Common property is just that, common. Each lot owner and occupier has a right to use and enjoy the common property (even if it is part of a wall or roof!) in common with every other owner and occupier. When one lot owner takes that right away by installing their improvements, they ‘oust’ their fellow lot owners and occupiers from the common property concerned; this is a very serious matter, which has been taken all the way to the High Court.

While there is no ‘statute of limitations’ issue (see the Limitation of Actions Act 1974), a body corporate must act reasonably in the discharge of its powers. The (normal) place of review for any body corporate decision on point is an adjudication application. Significantly, adjudicators have a broad equitable jurisdiction (more so than QCAT) and delay on the part of a body corporate can be relevant.

The question posed presupposes that the improvements should be removed. The normal process is for the lot owner / occupier to ask for permission; in fact, usually two permissions. The first is the authority to make the improvement. The second is to keep it there. Statutory easements may help with either or both of these permissions, as may by-laws.

Rather than proceeding to (most likely unlawfully) pull down the improvements, a better and more reasonable approach is to put the lot owner on notice that, after a search of the body corporate records, no consent/s to the making of the improvements, or the right to keep them where they are, have been given. The lot owner is then invited, within a reasonable time (at least a month), to ask for the body corporate approvals required.

If no response is received, the body corporate should consider bringing an adjudication application seeking a declaration that the requisite permissions have not been given, they were required to be given before the improvements could be made and that the improvements must be removed. If the lot owner makes the required application for consent, it must be considered properly, including at a general meeting if required (for example if a lease, licence, or grant of exclusive use is required, to keep the improvement where it is on the common property). The body corporate can then make its decision and communicate that decision to the lot owner. Often times consent can be given on reasonable conditions which address legitimate concerns the body corporate may have. If the lot owner does not accept those conditions or wishes to challenge a refusal by the body corporate to give consent, then the lot owner can bring an adjudication application seeking to overturn the body corporate’s decision. There is an abundance of adjudicator’s decisions on point, and they illustrate that each case will turn on its facts; there is a world of difference between (say) installing a TV aerial on the one hand and, on the other, fencing in 30 square metres of common property as a back yard.

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

This post appears in Strata News #656.

Question: Do I have to ask body corporate for permission to change the colour of the inside walls of my lot?

Answer: Internal colour schemes are at the discretion of the lot owner.

There is no need to ask for permission – internal colour schemes are at the discretion of the lot owner.

Still, if you are doing renovations, it is a good idea to ask in advance what permissions you need. Sometimes the answer will be easy like this, but owners often undertake works only to find they have interfered with the common property and caused a bigger issue. Checking first is a lot simpler than resolving a problem after the fact.

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

This post appears in Strata News #650.

Question: Can a current owner be held liable for a previous owner’s unauthorised improvements?

Answer: Yes.

Bodies corporate have a legislative obligation to enforce their by-laws.

Enforcement of by-laws involves issuing contravention notices to the owner and/or occupier of a lot in the scheme. However, in some instances, a previous owner has contravened the by-laws and installed structures and/or made alterations without prior approval, with these structures/alterations remaining in place following the sale of the lot. As the contravening party is no longer an owner or occupier in the scheme, the body corporate’s only option is to take enforcement action against the current owner.

Adjudicators have consistently held that bodies corporate are entitled to issue contravention notices to the current owner of a lot for breaches caused by a previous owner. For example, in The Peninsula [2021] QBCCMCmr 121 (17 March 2021), the Adjudicator relevantly stated:

“[139] I agree with the applicant’s arguments that a lot owner may ‘inherit’ a situation that may constitute a by-laws [sic] contravention. My position is formed after considering the earlier precedents. My position is also formed on the basis of logic.

[140] There is no logic to an argument that if one lot owner is found to breach a by-law today by erecting an unapproved fence (where approval is required), for example, but another who purchases a neighbouring lot tomorrow with an identically unapproved fence already in place could enjoy its use without sanction. That would be contrary to the spirit and intent of the legislative regime. Owners need to be treated equally, for what they might see as good and bad. When owners purchase properties in such circumstances they are taken to be cognisant of the provisions of the CMS and by-laws and if their property, as in this instance, is non-compliant, they must remedy the situation”.

In light of the above, owners should be diligent when they purchase a lot to make sure that any improvements have been approved.

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

This post appears in Strata News #648.

Question: The body corporate has denied my application to install a wood heater in my townhouse. Is this reasonable?

I’ve applied to my body corporate for permission to install a wood heater in my townhouse. The heater will be compliant with Australian Standards and will be greater than 600mm from the nearest high peak within the complex. They have refused my application because of concerns about smoke pollution and nuisance to other properties. There is over 4 meters to my neighbouring property’s boundary. We back onto free-standing residential lots with wood heaters installed. Is this reasonable?

Answer: The body corporate must enforce its by-laws.

In this situation, you are probably looking at concerns around by-laws, nuisance and hazard.

The body corporate must enforce its by-laws. In your case, if they cannot be satisfied that your proposed ‘improvement’ would not contravene by-laws for your scheme, then it might be reasonable for the body corporate not to approve it.

Similarly, the body corporate may have concerns about the impacts of your wood heater causing a nuisance or hazard. A relatively recent case in Qld found, for the first time under strata caselaw in Qld, that second-hand smoke was a hazard.

Ideally, the body corporate would have some evidence to back up their concerns. Put another way: if the body corporate refused your request on the grounds of nuisance or hazard, they should be able to identify where that concern comes from. Have other owners, for example, raised concerns? In any event, you note you believe you have complied with some objective standards in this regard. If you cannot reach an outcome with the committee, your next option is to challenge their decision through the Commissioner’s Office.

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

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

Question: Our body corporate is considering replacing garage doors. If some owners want taller doors, why should they be responsible for all future maintenance or door replacements?

We have a unit on the Sunshine Coast in a 30 year old building. The body corporate is considering replacing garage doors. Some owners would like to pay the difference to increase the height of their garage doors.

The body corporate committee states that if lot owners increase the height of their doors, they will be responsible for all future maintenance or door replacements. How is this fair when the increase is only around 5% of the total door. The alteration is to improve accessibility into the owner’s garage?

Answer: if you want something individualised to your lot (a taller garage door) that’s fine, but it is now wholly your responsibility..

From the information provided here, it sounds like the position of the body corporate is correct.

Generally, body corporate law is established to allow everyone to have the same thing or for items specific to a lot to be the responsibility of that lot owner. These are the principles being applied here. They make good sense.

If everyone has the same garage door, most people can accept and understand that they share the costs of paying for their neighbour’s door repairs, safe in the knowledge that their own door will be repaired when the time comes. However, if you have to pay more to maintain your neighbour’s door while they pay less to maintain yours, that’s an inequity people won’t tolerate.

Of course, you are not suggesting that people pay more or less – only that the percentages of what they may be more finely graduated. Unfortunately, the current legal structure doesn’t really allow this kind of fine line administration. So, if you want something individualised to your lot (a taller garage door) that’s fine, but it is now wholly your responsibility.

One other possibility is that you could vote on making all garage doors taller. Taller garage doors would be an improvement to the common property. If enough owners voted in favour, all owners could get a taller door while keeping them as common property.

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

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

Question: What are the lot owner’s rights and responsibilities if they want to install a satellite dish on common property, such as a roof?

In a QLD body corporate, what are the lot owner’s rights and responsibilities if they want to install a satellite dish on common property, such as a roof?

We have an owner who wants to install a Starlink dish. The committee is supportive, but want to make sure we are compliant with all requirements.

Answer: If an owner wants to put something on the common property, for their benefit, to the exclusion of other owners, permanently, then they need (at least) two body corporate approvals.

Starlink is a constellation of internet satellites, operated by SpaceX. First, let’s assume that SpaceX does not go the way Twitter is (‘thanks’ Elon), and Starlink is still operating by the time the committee gets to consider the issue. What then does the committee need to decide?

Regular readers will recall that if an owner wants to put something on the common property, for their benefit, to the exclusion of other owners, permanently, then they need (at least) two body corporate approvals. Approval to put the thing there, and approval to keep the thing there. Where the ‘thing’ is utility infrastructure, such as ‘equipment’ ‘by which a lot … is supplied with’ ‘a computer data … service’ (per the definitions in Schedule 6 of the Body Corporate and Community Management Act 1997), then the second approval, to keep the ‘thing’ there, is covered by the statutory easements in the Land Title Act 1994. In particular, the easement in favour of lots for utility infrastructure in section 115O.

So, a lot owner has a right to keep a Starlink dish in place on the common property roof, so long as it does not interfere unreasonably with the use and enjoyment of the common property (by others) on which the dish is situated. A good way to ensure that does not happen is to think about how that interference may arise when the committee decides on the first approval. That is, the approval to put the dish up in the first place. Assuming the area in question is not exclusive use common property, the installation approval would be given under Section 187 of the Standard Module (or equivalent provision in the relevant regulation module). Committee approval is enough, if the dish install is less than $3000 in cost, the dish does not detract from the appearance of the common property and the committee is satisfied that the use and enjoyment of the dish is not likely to promote a breach of the owner’s duties as the occupier. For example, the dish is not going to create a fire hazard inside the lot with the internet running so blazingly fast! (kidding…).

Section 187 allows the committee to impose appropriate conditions, which must then be complied with. Further, the lot owner must maintain the dish (and cables etc), unless excused by the body corporate. Most bodies corporate will have a standard set of conditions for situations such as these, typically to do with construction standards (wind load ratings etc), penetrations to the roof for cables and fixings (you don’t want leaks!), regular inspections and maintenance (a stitch in time saves nine) and removal (for example on the earlier of the dish no longer being used, or after a fixed period such as 3 years, whichever is the earlier).

Thinking about appropriate conditions can often expose how an installation such as a dish might unreasonably interfere with someone else use of the common property. For example, the install location may create a sun shadow blocking light to solar PV, or a radio shadow blocking signal to a terrestrial TV antenna. Discussing draft conditions with the lot owner is also good practice because with minor ‘tweaks’ to the installation proposal, it’s possible that some conditions can be done away with (for example cables may be able to be run under ridge capping, into the roof and secured on a truss, rather than the colorbond roof being penetrated and silicon sealed (OMG, when will builders realise that silicon does not fix everything!). So, hopefully, that gives your body corporate a head start.

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

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

Question: What is the importance of including owner improvements made to common property in the body corporate records?

Answer: It is very important that bodies corporate have an improvements register and ensure that it is promptly updated with the required details, otherwise a body corporate risks becoming responsible for costly maintenance to improvements made for the benefit of one lot.

We are increasingly seeing issues where improvements made to common property by an owner have not been noted within the body corporate’s records.

Improvements made to common property by a lot owner for the owner’s benefit that have been approved by the body corporate must be recorded in a formal register managed by the Body Corporate. This register becomes part of the Body Corporate records and is available for inspection by any interested person.

An owner of a lot (and any subsequent owners) are required to maintain improvements to common property that the body corporate has authorised, unless they have been excused by the body corporate from doing so. However, it is possible that the responsibility for maintenance can be shifted back to the body corporate if the required details have not been entered onto the register of improvements and the lot is subsequently sold. For example, the Adjudicator in Belle Court [2006] QBCCMCmr473 (29 August 2006) (‘Belle Court’) confirmed this by providing:

“Section 146 Standard Module requires the body corporate to keep a register for recording each authorisation for the owner of a lot to make an improvement to common property for the benefit of an owner’s lot. The register should include the conditions on which the authorisation was given…

Even if the Applicant as a purchaser was told about the railing, there was nothing to be found in the body corporate records (as now shown to me) which shifted responsibility for it onto the Applicant. The body corporate secretary had recorded “nil” on the Disclosure Statement when asked the question about maintenance of common property; and even if the purchaser could see that the railing was falling apart, it still remains a body corporate responsibility.

In my view, even if the Applicant had sought a Body Corporate Information Certificate, (Form 13) and Mr Winterbine had attached the 1998 Document to it (such as he attached for Unit 1) this 1998 Document would not be sufficient to notify a prospective purchaser of an obligation to maintain the railing, and would also not be sufficient to shift the burden of maintenance of common property onto a lot owner.” (our emphasis added)

Therefore, it is very important that bodies corporate have an improvements register and ensure that it is promptly updated with the required details, otherwise a body corporate risks becoming responsible for costly maintenance to improvements made for the benefit of one lot.

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

This post appears in Strata News #624.

Question: We would like to park our caravan on our lot. Our approval has been refused despite neighbours parking caravans on their lots. The committee will not explain why. What do we do now?

We live in a body corporate estate and own our lot freehold. We want to park our caravan on our lot. The bylaws state caravans can be parked on the lot if they are suitably screened. We’ve requested approval and been told by the BCM that the committee says our lot is not suitable for screening.

There has been a caravan stored on a neighbouring lot for 3 years with no screen. Does this set precedence? We have asked why our lot is unsuitable, but have not received a response. What can we do?

Answer: The body corporate is required to make reasonable decisions and part of that can be proving an explanation for why a decision has been made.

The body corporate is required to make reasonable decisions. Part of reasonability can be proving an explanation for why a decision has been made. Without that, the decision can be viewed as arbitrary, which seems to be the case here.

As a next step you might write to the body corporate again requesting that explanation. Perhaps provide evidence or a plan of how screening might be effectively installed. Advise that if a credible explanation for the rejection of your application isn’t provided you will take further action on the matter.

What could further action be? As ever, there is a hierarchy of options starting with tabling a letter on the matter at the next committee meeting, submitting a motion for consideration at the next committee meeting or general meeting seeking to allow you to house the caravan as per the by-laws or filing your issue with the commissioner’s office so the matter can be determined by an outside party.

An alternative view could be to just put in the screening and house the caravan onsite anyway. That forces the body corporate to make a decision. They can issue you with a breach of by-law notice. They might do nothing. They might take the matter to the Commissioner’s office themselves. The Commissioner’s office could find in their favour. Or is might find in yours. This pathway is a gamble, but it is one some people are willing to take and it is the kind of thing that will happen if body corporates don’t provide reasonable explanations for their decision-making.

The other caravan parked at the site may not provide precedence – two wrongs don’t make a right – but it is worth asking why one is allowed and yours isn’t. If it is in breach of the by-laws, why isn’t the body corporate taking action? Maybe they are and you don’t know about it. All round, it seems that a more open conversation here may be beneficial. I would suggest to the body corporate that you are willing to have that and see what they say.

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

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

Question: An owner requested permission to install a covered area in their exclusive use courtyard. Approval was granted as long as the structure was in keeping with the appearance of the building. They’ve put up a temporary tent. What happens now?

An owner asked to put an outdoor covered area onto their exclusive use courtyard. It was agreed, as long as they used materials in keeping with the current building.

They erected a temporary tent structure attached to the fence and it has been up for 6 months. Owners have requested it be taken down and built to what was agreed but the owner of that lot refuses to take it down. The tent is located in the lot owner’s exclusive use courtyard.

Our strata manager says we have to vote. We feel like we are voting for what has already been voted for. What is the appropriate course of action?

Answer: If one type of installation was approved but another put in, the body corporate would likely be in a strong position in disputing with the lot owner over the changes made.

It will probably depend on what the content of the proposed vote is. We can’t see that here, so I think it is a question to clarify with the body corporate manager as to what the content of the proposed motion or motions is and why a vote is required.

Whatever the vote is about, you might see it as an opportunity to clarify your position. Even if you think something has been decided there may be some reasons why a further vote will help determine that position and set the path for follow up action.

Otherwise, and unless you have a by-law that states otherwise, any changes to an exclusive use area need to be approved by the body corporate. If one type of installation was approved but another put in, the body corporate would likely be in a strong position in disputing with the lot owner over the changes made.

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

This post appears in Strata News #616.

Question: I received approval to replace the tiles on my balcony. During the work, an old metal screen had to be removed which is unable to be reinstalled. I’ve been served a breach for the removal of the screen. What do I do now?

The Body Corporate committee gave me permission to remove old tiles on the back verandah of my ground-floor apartment and replace them with new tiles. The tilers had to remove the balustrade railing and a large metal screen situated right in the middle of my verandah. After the work was completed, the tilers refused to replace the railing and screen.

Tradesman have replaced the railing, but were unable to replace the old screen.

I have enjoyed the delightful ambience of not having to negotiate around that ugly, outdated heavy metal monstrosity that serves no purpose and restricts what little light I have coming into my dark unit.

The committee have served me with a breach notice for not replacing the screen. My screen was the only one left in my building. I have asked for an exemption but they are undecided. Some members agree with me wholeheartedly but the chairwoman has taken exception with me and has not approved another request I have for insect screens which all other owners are allowed. What are my rights here?

Answer: If you want the alteration to be approved, it follows that you should make a formal application for that to happen.

Alterations have been made to your lot that haven’t been approved. If you want those alterations to be approved, it follows that you should make a formal application for that to happen. If the works were under $3000, the application can be approved by the Committee. If they are over $3000, the matter should be considered at a general meeting.

By making this formal application you are taking the matter outside the realm of debate and making owners decide on the matter. I would recommend that your application contain as many details as possible about the work that has been done and why it is not possible to replace the screen and why it is preferable to keep the railing removed. I would stay away from using language such as ’that ugly, outdated heavy metal monstrosity’. This tends to make me think that you are not replacing the items because you don’t want to rather than that you can’t. In your submission, I would seek to include a report from the contractor stating why they can’t return the property to its original condition and why this wasn’t thought through as part of your original proposal.

The Committee Chair is entitled to their opinion, but it is worth remembering that they are only one voter – albeit they may be an influential one. It is not within their remit to individually determine approvals at the site. For the insect screens, it may be worth checking your by-laws to see if you are allowed to install them without permission. This is often the case. If not, add the proposition as an additional motion to your other proposal and let owners vote on that. It might be worth reminding the Committee – rather than just the Chair – that they have to make reasonable decisions and that the fly screen request shouldn’t be conflated with the renovation request.

In having the formal vote, there is always the prospect that the Committee or owners will vote no to your proposal. What then? Well, you could take the matter to the Commissioner’s office to see if they uphold the decision. Or you could do nothing and wait for the Body Corporate to take action against you. There are lots of possible avenues for an issue like this, but I think it is critical that you acknowledge the issue and seek to positively resolve it by the structures that are available – meetings and votes.

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

This post appears in Strata News #603.

Question: We are considering installing floating hybrid flooring with underlay on top of the existing tiled flooring. Would this require strata approval?

We own a unit with a tiled floor. We are considering installing floating hybrid flooring with underlay on top of the existing tiled flooring. Would this require strata approval since it’s not actually changing the common property tile floor beneath the floorboards?

Would there be some approval required if slight changes to the front door clearance were necessary as a result?

Answer: In most circumstances, this type of improvement will be regulated by the by-laws for the scheme.

The legislation only regulates improvements to common property – by requiring body corporate approval. The legislation does not extend to regulating improvements to lots – such as the proposed flooring installation.

However, in most circumstances this type of improvement will be regulated by the by-laws for the scheme. The owner should review the by-laws and check whether there are any approval processes required before carrying out the proposed installation. If approval is required, the committee can impose reasonable and relevant conditions in relation to the improvement.

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

This post appears in Strata News #600.

Question: Does current legislation offer any protection to complexes regarding unauthorised renovations if there is no by-law in place?

Our complex does not have a by-law relating to renovations to lots. The addition of a new by-law is proving difficult because of the voting rules for a Special Resolution. Our main concerns are renovations which affect the structural integrity, plumbing and electrical installations, as well as the installation of hard flooring. Does current legislation offer any protection to complexes regarding unauthorised renovations if there is no by-law in place?

Answer: A good approach is to be proactive, get ahead of a proposed renovation, work out what is proposed and see if it requires approval, or will breach the legislation.

Regulating renovations can be difficult. Special purpose by-laws help, but architectural and landscaping codes are better. The former requires a special resolution, the latter a resolution without dissent. Not having either, your recourse is to the other by-laws and the legislation.

By-laws regulating noise or nuisance for example, if breached, can stop a renovation in its tracks (assuming the body corporate takes prompt and proper action!). By-laws regulating external appearance of a building, or placing things on the common property (e.g. skip bins) without approval, can provide the means to impose reasonable conditions on renovations.

The legislation contains many ‘tripwires’ which, if triggered, can have dire consequences; for example, requiring part of a renovation encroaching onto common property to be removed. Structural, plumbing or electrical works are just as likely to be regulated by other, indirect by-laws and special provisions of the legislation as any other works. A good approach is to be proactive, get ahead of a proposed renovation, work out what is proposed and see if it requires approval, or will breach the legislation. It’s far better to try to head an inappropriate renovation off at the pass, than to try to get an Adjudicator’s order that a renovation inside a lot be undone!

As for what parts of the legislation may be helpful, that will always turn on what the renovations entail. For example, if a renovation is extensive enough and involves the floor coverings, then the renovations may have to be compliant with the current transmissible noise standards. Plumbing, electrical and structural works can trip other parts of the legislation, again depending on what is proposed; for example, inappropriate structural works may breach the statutory easement for support.

When I hear of push back on a renovation by-law, its usually because the proposed by-law goes too far – committee members are (generally!) not building professionals, and they don’t automatically have a mandate to, for example ‘preserve the aesthetics’ of the building/s on the scheme land. The consent of the governed is required, and to get that consent a by-law should be reasonable in scope, clear in application and deliver fair and consistent outcomes.

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

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

Question: Am I allowed to put in fly screens to stop bugs entering my unit? I also have a black greasy substance entering my unit through my balcony doors and my windows. This seems to be coming from the exhaust fans of the many restaurants that are only metres away from my unit.

Answer: Check the by-laws for your scheme to see if they regulate the installation of fly screens.

You should check the by-laws for your scheme to see if they regulate the installation of fly screens.

If you don’t have a copy of the by-laws then you can ask your body corporate manager for one or you may be able to access them online if your scheme has information stored on a portal. You can also ask the manager to confirm the regulations at your site and whether you are allowed to proceed with the installation without approval from the Body Corporate or if you need to make an application.

More generally, the standard schedule 4 by-laws have a clause that allows owners to install screens and security devices to prevent the entry of animals. This states:

5 Damage to common property

An occupier of a lot must not, without the body corporate’s written approval, mark, paint, drive nails, screws or other objects into, or otherwise damage or deface a structure that forms part of the common property.

However, an occupier may install a locking or safety device to protect the lot against intruders, or a screen to prevent entry of animals or insects, if the device or screen is soundly built and is consistent with the colour, style and materials of the building.

The owner of a lot must keep a device installed under subsection (2) in good order and repair.

Even if your scheme does not have this specific law, most by-laws have a version similar to this. There may be some variations around the colour of the screens permitted to ensure they are in keeping with the appearance of the complex or the level of approval.

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

This post appears in Strata News #580.

Question: Are Class 2 buildings in Queensland required to only install 4-star energy efficient rating air conditioning?

Was any change made to legislation in 2009 regarding minimum energy efficient rating for air conditioning units in class 2 (apartment) buildings? I was under the impression that air conditioning units now need to be a minimum of 4-star energy efficient rating.

One of our owners is looking to install a unit with only a 3.5-star rating. Should the Committee approve this installation?

Answer: Barring a new build or a renovation that requires a building DA, the standard does not apply.

The specific section of the relevant code that is applicable to energy efficiency related to this query is Queensland Development Code (QDC) MP 4.1 – Sustainable Buildings (Version 1.13- 17 September 2020) which supersedes QDC MP 4.1 – Sustainable Buildings (27 November 2009). That section applies to new buildings and imposes energy standards across the entire building, not just in relation to air-conditioning units; the energy efficiency rating is averaged. (Note the ‘MP’ in ‘MP 4.1’ stands for ‘Mandatory Part’!). The standard also applies to renovations of a sole occupancy unit in a class 2 building, but only if a building development approval is required for those renovations.

So, barring a new build or a renovation that requires a building DA, the standard does not apply… unless of course the Body Corporate picks it up in a by-law. A body corporate wanting to get serious about energy efficiency could put in place a by-law which makes clear that new or replacement air conditioners must have a higher energy efficiency rating.

Absent a by-law, it would be an ‘adventurous’ committee that refused permission for the air conditioner install, on the basis of an inapplicable standard. Another justification for energy efficiency would be required, such as (for example) structural limits of the existing wiring network, and the need to ensure that the network capacity is not exceeded. Even then, this can be dangerous ground as the body corporate (owners corporation) found in the Hunter Connection Food Court in Sydney’s CBD (see The Owners Strata Plan 50276 v Thoo [2013] NSWCA 270). Note however that the NSW legislation is (slightly) different, with respect to the relevant body corporate duty to maintain.

While each ton of carbon into the atmosphere is another brick in the climate change wall, this committee should take care and assess the current application on its merits, and in the context of the particular circumstances of the Scheme. After that, they can get ahead of the game by adopting a ‘green’ by-law or two, to make the job easier next time.

The Queensland Development Code can be found at the Queensland Government Business website: Queensland Development Code

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

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

Question: What can a committee do to order an owner to restore the appearance of his lot to match other lots once changes have been made?

I know there is a process for enforcing by-laws but what can a committee do to order an owner to restore the appearance of his lot to match other lots?

Can the committee approve a motion at the committee meeting to make this order? So far, no notice has been issued to the offending lot owner.

Answer: If the owner doesn’t comply with a breach of bylaw notice, the committee can then proceed to have the matter resolved in a court.

The Committee can agree to issue a notice against an owner for breach of a by-law and if the owner doesn’t comply they can then proceed to have the matter resolved in a court. For a case like this I expect you would need to show that there is consistency across the other lots and that the owner’s changes had disrupted this.

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

This post appears in Strata News #561.

Question: Do I have to wait for an AGM to request approval for work? The cost of the work will be under $3000 because family members will be assisting at no cost.

I’d like to request approval from the body corporate to change a balcony wall in my apartment. Do I have to wait for the AGM or can this request be submitted at any time?

If the cost of the work is less than $3000, can approval be given via a flying minute? I’ve arrived at an amount of $3000 for the work as family members will be carrying out part of the work at no cost.

Answer: Assuming that this is a common property wall, and is more than $3000, a general meeting would be required.

This depends on whether the wall is part of the lot, common property and what the by-laws provide for this proposed improvement.

Assuming that this is a common property wall, and is more than $3000, a general meeting would be required.

The benchmark for the $3000 is based on value, not cost. So if the work is being done for free, but would otherwise cost more than $3000 it would still require a general meeting.

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

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

Question: What is required for me to replace the balcony light with a ceiling fan/light?

Answer: This sounds like a renovation that will require approval.

Without knowing the details of your building this sounds like a renovation that may impact the common property to some extent or require approval via your by-laws.

In that case you can make an improvement application to the Committee of your site. They can approve applications of this nature up to $3000. If you ask your body corporate manager they may have a relevant form you can use to do this.

Because it is a balcony fan there may be some consideration to the appearance of the lot. More probably the committee will need to see that you are engaging a licensed contractor and that the work can be done safely.

See the BCCM website for more information on renovations: Queensland Government: Improving common property and lots

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

This post appears in Strata News #555.

Question: In 2017 we received approval to install a sunshade. The sunshade was damaged in a big storm. Our body corporate is refusing to allow us to replace the item, stating our approval has expired. Is this correct?

In 2017 we received approval from our body corporate for a sunshade over our driveway. We installed a design sympathetic to the colours and aesthetic of our home and according to the covenants.

The sunshade was damaged recently in a big storm. Our body corporate is refusing to allow us to replace the item. We’ve invested money and gone through the right channels, but we’ve been told our approval has expired. Can our body corporate restrict us from putting the shade up again?

Answer: Approval doesn’t usually come with a time limit.

Approval doesn’t usually come with a time limit. A committee makes a decision and it might come with conditions attached to it. And that is that. One difference might be if the by-laws changed between when you first installed and now.

On what basis are you being told you ‘aren’t allowed’? Do you have an actual decision stating that? Committees are meant to make reasonable decisions, which means they need to have a basis on which they decide things, not just arbitrarily deciding something. If there are no reasons given to you for the apparent ‘decision’ you might have grounds to challenge the decision.

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

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

Question: A lot owner has installed a ceiling fan without body corporate approval. How do we know if the work was carried out by a qualified tradesperson? Can the committee request details?

A lot owner has created a manhole and installed a ceiling fan without body corporate approval.

Our by-laws state “No structural alterations shall be made to any lot (including any alteration to gas, water or electrical installations) without the prior written consent of the Committee”.

This may have been intentional ignorance, however, the concern is whether or not the work has been carried out by a qualified person.

Where does the committee stand? Can the committee ask for the details of the work and the name of the electrician and the tradesman?

Answer: If an owner has undertaken renovations without approval, the Committee can contact them to ask for a retrospective application to be completed.

As a first step it is worth double checking if the works conducted have affected the common property. You need to check if it is a building or standard format plan then review the guidelines for the relevant format. Check the survey plans to see where the boundaries of the lot are. Consult with your body corporate manager if you have one. They should be able to give you a clear answer. Establish as many facts as you can and then approach the owner. If the works didn’t affect the common property, all the owner may be guilty of is not telling you they were going ahead. If they did affect the common property, then an application should have been made – in addition to your by law, the Act is very clear is stating that renovations should be approved: Improvements by a lot owner

If an owner has undertaken renovations without approval, the Committee can contact them to ask for a retrospective application to be completed.

This application should include full details of the works done, quotes and invoices from the contractors who did the work, as well as license and insurance details of those contractors. In this case it should also satisfy any requirements of your by-law.

If the application is satisfactory, the works can be approved and the matter closed. It’s better to do these things in advance, but at least the owner would have acknowledged their responsibilities and the body corporate would have a permanent record for the future.

If the owner isn’t compliant, or you think the works are unsafe, then you have to look at the options. Check the wording of the by-law to see if it gives you a direction for how to act. Then, you might issue a breach of by-law notice. After that, you can go down the path of seeking mediation or adjudication on the matter. In extreme circumstances, you may need to consider gaining entrance to the lot to have the work checked. Still, we are talking about a ceiling fan so that seems a bit excessive unless there is a real fire risk.

Indeed, the relatively mundanity of the renovation here may be part of the problem. The owner may see it as a small job that affects them only – some people think it’s a hassle to make an application for something so minor. From a Body Corps perspective, the owner may have breached the by-laws but how much time, money and effort can be spent rectifying that. Committees are made up of volunteers and not everyone has the capacity to pursue issues like this when there may be bigger problems at the complex to consider. Body corporate managers can be engaged to follow up, but they will apply fees for the time it takes to do so – not everyone is happy to pay these.

If the owner is just being a bit difficult you can try explaining to them the implications of not participating in the body corporate process. A face-to-face meeting might be good if the owner is agreeable. The conversation often starts by highlighting that failing to follow the by-laws can cost them money as the costs of resolution are paid from their levies. Point out that dealing with issues like this takes time away from Committee’s capacity to solve other more complex matters. Then they need to consider that owners can’t just pick and choose which by-laws to adhere to. If they do, then the Committee loses the authority to act on any of them. It won’t be possible to help the owner next time they have a parking or noise issue caused by another resident because the by-laws have been devalued. Try to give the owner a different perspective and see if that helps.

Lastly, it is important to consider the building’s application process for renovations. Do you have a set format or form? Does your body corporate manager have one? Are owners aware of the process? If you are having issues with owners undertaking works without approval then maybe send out a communication to advise people what is expected. Make sure the application process is both fair and flexible. If an owner wants to do major renovations then they should be investigated thoroughly, but minor changes should be approved pretty quickly provided they are being done by professional contractors. If the application process is too difficult, owners may find it easier to ignore it. If it is fair and efficient most owners will be happy to comply. Most people choose the path of least resistance so try and make sure that is the one in which they submit a reasonable application.

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

This post appears in Strata News #543.

Question: In our building, there are many instances where improvements have been done on common property without approval. How do we manage this?

The prior owner installed an air conditioner servicing only my lot on a common property wall. The Body Corporate committee minutes do not have any record of approval for this installation. There was no mention in the sales contract of the improvement/installation or that I was responsible for rectifying any issue associated with this modification.

Who is responsible for the maintenance of that air conditioner on the common property? Is there something I could have done prior to purchasing the unit that would have alerted me to this situation? Why didn’t the selling agent notify me?

There are many other examples of improvements on common property like this throughout the building. Most of the lots are rented and the committee just lets people do what they want. There is no follow up to ensure the correct processes have been undertaken, no record of applications for improvements.

What do we do to rectify this situation so the changes that have been made to the complex are either recorded properly or rectified? Do we need to have a report or inspection done?

Answer: The committee could do a walk around to review current improvements and cross check the records.

Some committees are very proactive and will act on non-compliance with by-laws, such as an air conditioner installed on common property without approval. However, some are not. Also, they may not be aware of the issue, particularly if they do not live on site.

As the air conditioner is for your unit, then yes, you are responsible for it. You may wish to send an application for approval to the body corporate, which should then be on the records as an improvement to common property.

If you have an interest in what is happening in your scheme you may wish to nominate for your committee and be a pro-active member. The committee could do a walk around to review current improvements and cross check the records. It would be good for them to communicate with the residents on the particular by-law requirements and ask that residents send in applications for approval. You can also communicate this to your current committee.

You do have an option as an owner to request the body corporate to enforce the by-laws on a particular occupier for a particular breach. This is done via a BCCM Form 1, the process and form can be found on the website of the Commissioner for Body Corporate and Community Management. It is important to note that committees who focus on engaging ALL residents can go a long way to transforming a building into a harmonious place to live.

Charlotte Divall SSKB E: cdivall@sskb.com.au P: 07 5504 2000

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

Question: As part of the renovation approval process, is the Body Corporate legally entitled to ask an owner to pay for an EGM?

Answer: The rationale here is that it is the owner benefitting from the meeting rather than the body corporate so they can be asked to cover the costs. If the owner doesn’t want to pay, they can wait.

There is no reason why not and this would be fairly common if the EGM was being held for the benefit of that lot owner.

Consider a renovation application that exceeded $3000. In this case approval should be granted at a general meeting. The owner has made a submission and has the option of waiting until the next general meeting for a response. However, this meeting could be many months away. In that circumstance the owner could be asked to pay the costs of the EGM if they wanted it to be held sooner. The rationale here is that it is the owner benefitting from the meeting rather than the body corporate so they can be asked to cover the costs. If the owner doesn’t want to pay, they can wait.

The same theory can be applied to items such as holding a VOC to approve a pet application. The application benefits the individual owner, who usually wants an answer quickly, so the costs of holding this vote should be paid by the applicant.

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

This post appears in Strata News #527.

Question: One owner in our three lot scheme has split their lot and created two units. As far as I know, no approval was sought or provided. Is this lawful?

I recently purchased a 3 level townhouse in a small complex. We are self-managed by one of the three owners. The person undertaking the manager’s role has split their lot into two units by enclosing part of the garage and office/bedroom on the ground floor, creating a separate unit with its own entrance, kitchen/living area, laundry, bathroom and bedroom. The owner now lets out the upstairs three-bedroom townhouse and the separate ground floor unit.

There is no Body Corporate Committee approval for this change and the body corporate records provided at the time of purchase show no reference to this structural change or change of material used.

I have requested access to the body corporate records to review whether this structural change was approved by the body corporate and I have been refused access.

Is there anything in the BCCM Act or Regulations that would cover such a material change of use in converting a single lot into a multi-use dwelling? What effect would such change have on the levies and would the body corporate need a new community management statement and bylaws to cover the change? As the next step, am I best to lodge a dispute?

Answer: You may need to obtain a copy of the development approval conditions and planning overlays.

There are a few points here:

Firstly, an owner cannot be refused access to body corporate records. That may be worth following up on to facilitate any further action to be taken.

There is nothing necessarily in the body corporate legislation that would prevent the works or use of the lot in that way. However, this will depend on what the by-laws provide for and the type of survey plan. Once that is known, there may be an angle to take in that regard.

Whether the use of the lot in that manner is lawful depends on what council’s requirements are. To check this, you may need to obtain a copy of the development approval conditions and planning overlays.

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

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

Question: The owners of the penthouse want to retrofit a lift at their own expense. Do we have to agree or can we refuse?

We live on the ground floor of a fifty-year-old, three-storey block on the Gold Coast.

The owners of the penthouse on level 3 want to retrofit a lift at their own expense because they are ageing. We feel this will compromise the integrity of the sea views and our building.

The penthouse owner said we are required by law to allow him to expedite the installation of a lift, giving them access to their unit. They currently access their unit by a staircase. Is this a legal requirement on behalf of all the other lot owners or can we refuse this request?

Answer: The approval for that is dependent upon the value of the works and also factors such as whether it would cause a nuisance.

There are, it seems, a few details missing in this query. Is the penthouse owner wanting to make an improvement to common property, presumably? Assuming yes, then the approval for that is dependent upon the value of the works and also factors such as whether it would cause a nuisance. Remember that ‘nuisance’ can involve a visual nuisance.

Your comment about the proposed lift impacting upon the ‘integrity of sea views and our building’ is worth exploring. How do you know that? Do you have an expert opinion which supports that view? Do you have plans from the penthouse owner which you have been able to have assessed for views? Has a structural engineer provided an opinion about the ‘integrity of the building’ as a result of the proposed lift installation? If the answer to any of these is ‘I don’t know’ or ‘No’, then you will need further information to support your view.

You would also need to take into account the fact they are using the stairs currently. Are the owners, occupants or their invitees mobility impaired? If so, is it reasonable for the request to be denied when you know there are mobility issues?

If the committee is considering this request (which they may, again depending on the value of the works and the other factors noted above) then yes, they are required to consider the request within 6 weeks, with a further 6 weeks possible if they need to seek further, reasonable information. Otherwise, if it has to go to a general meeting of all owners, there is no particular timeframe on the calling of that, other than if the penthouse owners obtain 25% of the signatures of all owners to force an extraordinary general meeting.

By now I think you would have gleaned from the above that this is far from a simple or black and white scenario and a fair bit of additional information – from all sides – is likely to be needed. The committee would be well advised to seek some legal advice prior to them making any decisions in relation to this matter.

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

This post appears in Strata News #522.

Question: Why do we have to pay our body corporate a $200 admin fee for all applications and submissions?

As new body corporate owners, we are confused about how body corporate works. When asked about how we apply for a general lot alteration approval oor body corporate has stated that we need to lodge the application via their website and pay a $200 admin fee each time.

According to their website, this fee also applies to almost all other applications. Why can’t we find out who is on the committee of our 8 townhouse body corporate and simply send them the application instead?

Answer: It doesn’t seem unreasonable that they may charge for an application to be processed.

The body corporate will have engaged a managing agency to assist with the administration of the site. Presumably, the managing agency is acting within the boundaries of its agreement and owners will have been aware of the conditions of the company when appointing them as managers.

It doesn’t seem unreasonable that they may charge for an application to be processed. Handling such proposals is unlikely to be part of a standard service in the contract agreement and it will take the managing agency some time to process the application, receive committee votes or comments and provide you with a written response. The records of this and the final response will become part of the formal records of the body corporate and would be used by all parties in the event of a dispute. I can see how some owners may think this is not that important at the time they are making the application as they just want to get it done, but the clear documentation of applications is a key part of body corporate management and if it is done well contributes to the efficient running of the site.

It is also reasonable that such fees are passed on to individual owners. After all, you will be the person benefitting from the process of the application and other owners wouldn’t want to pay for this. Equally, you won’t be paying for other owners requests when they are looking to get a new pet, bathroom, by-law and so on.

In most cases, you should be able to access general information about your site without cost. Your managing agency may be happy to provide this – just contact your manager and ask – or you may be able to access the information via an online portal. You can send the committee an email via your manager and ask them to pass it on – they will. If you really need to, you could do an inspection of the books and records and gain access that way. If you try to circumvent the established procedures you may get a mixed response – committee members are volunteers who rely on body corporate managers to help run the scheme and that seems to be what is happening here.

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

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

Question: How do we seek urgent orders to stop a resident from renovations during a busy holiday period?

We have bought into a complex of 5 at a popular beachside resort. An owner has started renovating his unit internally without Body Corporate permission. We are going into the school holiday season and have our unit rented back to back for the next 4 weeks. He has now sort permission and submitted a 10-week schedule to complete the renovation before Christmas.

Two owners are happy for him to go ahead, two owners (who holiday rent) want it suspended until after the school holidays. What can we do? Is an EGM the answer? Jackhammering is due to commence Monday!

Answer: Urgent problems demand urgent solutions.

Urgent problems demand urgent solutions. The Commissioner’s Office provides a dispute resolution service that includes adjudication. In appropriate circumstances, adjudicators can make interim orders, known in other jurisdictions as injunctions. Interim orders preserve the status quo until the primary dispute can be determined. An owner commencing renovations without approval, when approval is required, might be such a primary dispute. An interim order in that case would restrain the commencement of the works until the primary dispute is determined. As with any dispute, we do recommend that you obtain considered legal advice.

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

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

Question: I’ve applied for approval to change the flooring. What rights do I have if I have not been responded to within the appropriate time?

I currently have an application with my Body Corporate Committee to install hard flooring in place of carpet. The bylaws state that hard flooring must be less than 62 dB and include soundproofing underlay with a 5mm thickness to be installed under any hard flooring.

I have submitted the application for flooring with an acoustic report from the manufacturer of 52 dB and 5 mm Acoustic rubber underlay to be installed.

My application has clearly met the requirements of the by-laws however the committee seems to be delaying the decision to provide consent. We are nearing 6 weeks and the committee has since approved my other requests which were on the same email request.

The decision is holding up other works.

I have made several enquiries to the Body Corporate manager as to what the delay is and have only been provided with generic responses in the likes of “we’ve forwarded this to your committee”.

I just want to know what avenues/rights do I have if I have not been provided with a response in the appropriate time frame?

Answer: If it gets to the point where you’ve made a submission and after six weeks, you haven’t heard anything back it’s considered that the motion is defeated

The last part of the question is ‘What are the avenues or rights of the applicant?’. As an individual lot owner, you are entitled to make an application to the committee. You’re entitled to submit up to six motions per year to the committee. The committee has to consider those within six weeks or provide you with the reason why not, or request an extension of some kind. You should activate that part of the legislation. Make a formal application, a proper motion, and then force the committee into having some kind of committee meeting or VOC so that you can get a formal decision one way or another. That’s an avenue open to all lot owners.

Six weeks is quite a long time. It doesn’t always fit with people’s building schedule plans, but that’s what it is. You have to deal with that.

From the community’s perspective, they may agonise over these kinds of applications. It’s not so much the application, but they’re worried about the impact on the person below your unit. Will adding this type of flooring have an impact on that individual? There’s a lot of uncertainty. If you searched up the issue on the internet, you could hear nightmare stories. Committees are a group of individuals who generally have the best interests of the owners at heart. So sometimes, when they are taking a long time to decide, it’s because they’re trying to do the right thing, but they might want to have a definite pathway towards doing that. There might have been problems in the building in the past where people have said, my application is fine and then it’s turned out that there have been problems after the fact. So I think we have to be kind of sympathetic to that kind of issue.

In this case, the lot owner has made an application and the committee should really consider having a vote on it. If they choose to vote no, then the lot owner has right to go to the commissioner’s office.

What I might touch on with this issue is that there is a school of thought that these kinds of flooring renovations don’t need to have approval because it’s whether or not the floors in question are considered the common property or whether they touch the common property or not. I’ve heard some arguments that say, well, if you’ve got the noise bylaw in place, and I hope every building does, that bylaw is sufficient in and of itself as a regulation because the lot owners are not allowed to have the high level of noise transfer from one lot to the other. That’s a school of thought, I don’t know if it really applies. I think it’s worthwhile people making the applications and trying to show as much due consideration to their neighbours as they can.

Submitting Motions and Response Times

In the past, you could submit ideas and questions and things like this and they could go into the void and never be responded to. Obviously, that was a fairly unsatisfying situation. So, QLD legislation changed in March 2021 which now permits owners to submit up to six motions per year to the committee’s consideration and the committee has got six weeks to make a determination, or they can ask the lot owner for an extension beyond that six weeks.

If you’ve made a submission and after six weeks, you haven’t heard anything back, it’s considered that the motion is defeated and you proceed on that basis. If you’re unhappy with this outcome, which you probably would be as an applicant, then you could go to the commissioner’s office and follow through on that basis

I think it’s a very good piece of legislation, and we’ve been encouraging owners to use it more and more where possible because it creates a situation where a decision has to be made. What might have happened in the past, if people ask questions, ‘Can I do this? Is this okay? Is that okay?’ it gets a little bit vague, and then answers come back which are a little bit vague. This goes on for three or four weeks, and then a month, two months and three months and before, you know, a year’s gone by and nothing’s really happening. Everyone’s kind of frustrated and given up.

Having a motion, having a meeting, a decision has to be recorded one way or the other, for better or worse. That gives people a very definite and clear avenue for how to proceed in the event that they’re unhappy with the final decision. I think that’s a good thing for the industry and I would encourage all owners who want an issue discussed to take that pathway because you will get a definite answer. You might get the answer you want, but you will get a definite answer.

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

This post appears in Strata News #505.

Question: Before moving into a townhouse, we have some maintenance and repairs to carry out within our unit. Do we need to get permission from our Body Corporate?

Before moving into a townhouse, we have some maintenance and repairs to carry out within our unit. Do we need to get permission from our Body Corporate? We are looking to:-

Permanently close a window by putting a fibre sheet and plastering it. This window faces our courtyard and not the common area.

Install a range hood, which will require a new exhaust vent to be created on a wall. This wall already has a couple of exhaust vents from two other units.

Answer: ‘It depends’ is the answer to both questions.

“It depends” is the answer to both questions. It depends on your plan of subdivision, applicable regulation module, whether your proposed changes encroach onto common property and what the by-laws saw.

If it’s a townhouse then it’s likely you’re what’s called a standard format plan. You should be able to tell the regulation module and by-laws from your purchase documents, assuming they include what’s called the Community Management Statement.

So with all of that in mind and noting that a definitive answer isn’t possible at the moment, I’d say that on (1), if it’s within the boundary of your lot, you may not need approval, depending on any by-laws regarding appearance and on (2), if installation is going to occur on common property – and it sounds like it is – then you may need approval.

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

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

Question: If doors and windows are not on common property, is the “minor improvement” value applicable?

If doors and windows are within the Owners Lot (not on common property), is the “minor improvement” value applicable? I understand the impact of adding a security entrance door to Lot Appearance which requires approval but I would like to add Crimsafe to all doors and windows of my lot (well over $3,000) in installed value. Why does a committee ordinary resolution determine my level of security?

Answer: An improvement to a lot is only regulated by the by-laws.

An improvement to a lot is only regulated by the by-laws. This means that the minor improvement rules do not apply (as that only relates to common property improvements). One thing to check though is that the building is not created in a building format plan with the front door (or any of the windows) being the boundary. If that is the case then the outside of the door (or window) would be common property.

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

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

Question: Can the BCC tell me where I can (and can’t) put pot plants in my exclusive use courtyard? I want to use the plants as a screen as I have been denied approval for other forms of screening.

Answer: As a general rule, the body corporate is permitted to dictate the external appearance of the lot to maintain aesthetic consistency.

This will depend on:

What your exclusive use by-law allows for; and

Any other by-laws affecting the external appearance of the lot.

The issue seems to centre around the screening as opposed to the placement of pot plants. As a general rule, the body corporate is permitted to dictate the external appearance of the lot to maintain aesthetic consistency. However, if the screening does not particularly detract from the external appearance (or is needed for some form of privacy) it may be unreasonable for the committee to prevent any form of screening being installed.

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

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

Question: After reading the recent article about QLD Owner Improvements, would it be possible to follow up on three additional issues regarding improvements/alterations?

While I appreciate the difficulty in writing articles like this: QLD Owner Improvements is knowing where to stop and what to leave out, I think it would be useful to do a follow-up about three additional issues regarding improvements/alterations:

the need to consider 3rd party regulators eg the local council re DAs and BAs, QFES, electrical etc;

the problem if the improvement to common property amounts to an exclusion of use by other owners etc; and

the need to include the improvements by an owner to common property in a special register, as part of the corporate memory.

Answer: Those are good points.

Those are good points.

On each point:

I always recommend that any approval given by a body corporate is conditional upon obtaining any additional required consents from statutory bodies (such as council and the like).

This is a regular issue and a source of many disputes as approval to an improvement that affects common property will necessitate seeking some form of use right, usually through exclusive use (it could also be given through a lease or licence). The test that has been adopted in the Commissioner’s Office as to whether a use right is needed is whether the improvement on common property is substantial, permanent or could interfere with another person’s use of the common property.

This is an often overlooked requirement as the module necessitates this. Some form of assistance is provided as any approval ought to be evidenced by a resolution – which should also stay on the body corporate record.

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

This post appears in Strata News #469.

Question: Although our renovations have been approved, the committee is questioning whether a change is “structural” and requires an engineers report.

We applied for and were approved for internal renovations three years ago. We are Building format.

The committee passed a motion approx 6 years ago that any structural modification needs an engineers report. This was never made by law. Is this motion enforceable?

We removed a non-load-bearing wall at the end of the kitchen bench.

My builder’s opinion is that the modification is not structural and therefore outside the control of the motion.

Is there a legal definition of what constitutes a “structural” modification?

Answer: Even if the works were structural, the body corporate would need to approve the works unless it was reasonable not to.

The motion that was passed would not be enforceable unless it was adopted as a by-law – which requires a special resolution.

Even if that were the case, and even if the works were structural, the body corporate would need to approve the works unless it was reasonable not to. If no other lot or common property is affected, it would be difficult for the body corporate to justify a refusal.

To determine if the works are structural I would need some further information, including whether the wall contained any utility infrastructure.

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

This post appears in Strata News #465.

Question: Can a lot owner apply to have one side of a duplex painted which includes their unit or does it have to apply to the whole building or part thereof?

Answer: The owner can make an application, but there is no obligation for the committee or owners to approve it.

The owner can make an application, but there is no obligation for the committee or owners to approve it. Is there a specific reason why that part of the building would need painting and the others wouldn’t? If so, the motion may be reasonable. If not, it may be better to consider a quote for painting the whole site. If the funds are due to be paid from the body corporate it’s hard to see owners agreeing to a proposal like this if there were a vote on the matter.

It’s worth remembering that the laws on owner submitted motions changed as part of the new legislation that was introduced on March 1.

Please see the below blog on owner submitted committee meeting motions. That may give some direction on how to handle the matter: Owner Submitted Committee Meeting Motions

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

This post appears in Strata News #435.

Question: Can Real Estate agents place real estate signs for sale or rent on common property without approval from the body corporate committee?

Answer: Unless directed in a by-law, signs placed on the common property require the approval of the body corporate.

Unless directed in a by-law signs placed on the common property require the approval of the body corporate. Property agents should always check on the right to do this or risk having the sign removed.

In this instance, it may be possible to agree a standing order between the body corporate and the agent to reduce the need to make the same request repeatedly in the event that the body corporate assents to the signage. Even so that is still something that would need to be discussed and approved.

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

This post appears in Strata News #435.

Question: We want to install a bike anchor for our E bike in our underground parking space. Would we be able to do this without Body Corporate approval?

Our underground parking space is part of our title in a CMS building. We want to install a bike anchor for our expensive E bike. This is a 200mm round disc and is 20mm high in the centre. This requires two 12mm wide holes to be drilled 60mm into the parking space floor within our lot.

As this is not a structural change and as the work will be within our titled lot, would we be able to do this without Body Corporate approval? There is a By-law allowing a lot owner to install a locking or safety devise to protect the lot against intruders, would this be applicable? There is nothing in the By-laws restricting the use of the car park to only being used by cars.

Answer: I think you need to consider the terms of your by-law

I think the key here is the by-law you mention. Does that by-law require you to obtain committee approval first? Then there is separate issue of whether your anchor is a ‘locking or safety device’. Sounds like it might be, but it also might be open to interpretation.

Your query suggests that there is an exclusive use by-law at play. If that’s the case then I’d refer you to section 174 of the Standard Module (equivalent provisions of other modules) which deals with improvements under an exclusive use by-law. Depending on the value of the intended improvement, approval may only be made by ordinary resolution at a general meeting.

So I think you need to consider the terms of your by-law, the value of your improvement and perhaps, if you haven’t already done so, open up a discussion with your committee about what you hope to do. You may also need legal advice, as interpreting a by-law can be complex and subjective.

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

This post appears in Strata News #423

Question: Would installing sliding external balcony shutters within the balcony railing constitute an improvement to the common property or to the owner’s lot?

Would installing sliding external balcony shutters affixed by a track to either/both ceiling and flooring of any particular balcony in our complex but installed within the balcony railing constitute an improvement to the common property by a lot owner or merely be an improvement to the owner’s lot?

Our by-laws state owners must first seek Committee approval to make common property, boundary, structural or lot improvements or change the external appearance of their lot, however, the Act, so far as I’m aware, states any common property improvement by an owner that exceeds $3000, detracts from the appearance of a lot or is likely a breach of the owner’s duties as an occupier must go to a general meeting as an ordinary resolution.

Logically, if our Committee develops clear product specifications and conditions around the installing of external balcony shutters that comply fully with any statutory/regulatory requirements and all owners agree them at a general meeting, any complying owner request should be able to be green lighted by Committee without having to go to a general meeting.

Unless installation’s deemed an improvement to common property by the lot owner?

Answer: While you might be sure your proposal isn’t affecting common property in any way, the committee may take a different view.

The key issue here is what is and isn’t common property. From experience I know that this is rarely a straightforward determination and even where it seems blatantly obvious something is common property, it turns out not to be (or vice versa).

If you haven’t already done so you should check and double-check the plans for your lot regarding the extent of its boundaries. Assuming you’ve clarified the proposed improvement is within your lot and has no impact on common property, then you don’t need body corporate approval for that. You would need to ensure you comply with any relevant by-laws. You’ve identified there may be some by-laws that are relevant here and that you may need to seek approval for your improvement. You might also need to consider if your proposed improvement would constitute a nuisance under section 167 of the Body Corporate and Community Management Act 1997. ‘Nuisance’ here isn’t just about noisy parties. Nuisance is about the use of the lot and one way that might happen in this case is, for example, if the reflection and glare off your proposed shutters caused an issue for another lot.

Bear in mind also that even though you might be 100% of the view your proposal isn’t affecting common property in any way, the committee may take a different view and this in turn can give rise to a dispute.

Bottom line: assuming that something is/isn’t common property can be a big risk. I’ve seen so many disputes around this topic. You may be well served seeking some specific legal advice.

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

This post appears in Strata News #370

Question: We’ve been inundated with emails from our Body Corporate Manager about our unlawful renovations to our exclusive use courtyard. Do we need to make a retrospective application at the next AGM?

We only moved into our strata unit a few months ago and we have been inundated with emails, and now a legal letter, about our unlawful renovations to our exclusive use courtyard.

Is the Body Corporate Manager there to be an advocate for us or are they there just to take our fees and issue notices regarding building faults etc?

I contacted the Commissioner’s Office and they advised us to make a retrospective application at the next AGM.

I’ve also contacted our Body Corporate Manager and she said to fill out 3 separate applications and submit them.

Answer: While you have to comply with by-laws, the body corporate also has an obligation to properly enforce them.

The body corporate manager is not your advocate. They are there to act upon the instructions of the committee and provide advice and information to owners and occupiers as necessary. They are appointed by the body corporate under a contract.

When you become a lot owner, you have rights but you also take on obligations under legislation and what you might be used to doing in a house, for example, is not necessarily what you can do in a body corporate. You are part of a collective and your renovation, which might seem straightforward to you, may actually impinge upon common property. There are often approval processes to go through.

By-laws are the legally-enforceable rules which apply to everyone living in your building. By-laws can also regulate how exclusive use areas are to be used. While you have to comply with by-laws, the body corporate also has an obligation to properly enforce them.

It sounds like you’ve been given advice about how to proceed from this point. Just a note on the Commissioner’s Office – as the former Commissioner, I can tell you that while it is also not an advocate for you, it is impartial and is there to provide you information which you can then use to hopefully resolve the situation. If you find that isn’t working and you’re experiencing further difficulties, you may need to seek legal advice. I know you say you don’t want to get bogged down in the legalities but that may be necessary if things can’t be resolved.

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

This post appears in Strata News #343.

Question: Do I need body corporate permission to drill a hole in a brick wall inside my until to attach a bookcase? Would this be classed as common property, or lot property?

What is classed as common property and what I need body corporate permission to change?

Do I need body corporate permission to drill a hole in a brick wall inside my until to attach a bookcase? Would this be classed as common property, or lot property?

My unit block appears to be a Building Format Plan as it is a block of 6 units built in the 80s.

Answer: Sometimes what appears to be your lot may not be.

Knowing what is common property and what is the lot owner’s responsibility is a challenging issue at times and one which can’t be answered based on the information you’ve provided.

Your first port of call is to obtain the plan of subdivision, as you say it ‘appears’ to be a building format plan. You do need to know for sure which plan applies, as that goes towards determining what is and isn’t common property.

Generally, if something is within the boundaries of your lot, you are responsible for it but you shouldn’t just assume that to be the case, as sometimes what appears to be your lot may not be.

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

This post appears in Strata News #337.

Read More: Common Property Boundaries

Question: We have received an email from our Committee demanding we remove a garden shed immediately. What does changing the external appearance of the Lot mean? Do we have to comply?

Our CMS By-laws state:

General appearance of Lots.

An owner or occupier of a Lot must not in any way alter the exterior appearance of the Lot, nor cause to be constructed or placed upon any part of the Lot which can be viewed from outside the Lot any materials or items without the prior written consent of the Committee.

No variation to appearance. Subject to By-law Sale of Lots, an owner or occupier of a Lot must not do anything to vary the external appearance of the Lot or Common Property without the prior written consent of the Committee.

We have received an email from our Committee demanding we remove a garden shed (interestingly under By-Law Sale of Lots) immediately. We did erect it without consent but have subsequently sought approval on two occasions, each request was met with a No reply.

My question is ‘what does vary the external appearance of the Lot’ mean. I note many units in this complex have balcony furniture, wall clocks, umbrellas and potted plants / vertical gardens on their balconies, all of which I believe alter the exterior appearance of their Lots.

We do not intend to remove the shed hoping that the dispute will progress to conciliation and on to adjudication as we believe our Committee is serving for the benefit the ‘select few’.

Answer: This would be based largely on conduct and what is just and equitable.

I think it is hard to say the external appearance of the lot isn’t altered by the construction of a shed. Having said that, the committee does need to be reasonable and act with consistency.

To the extent the ‘no’ is not based on reasonable grounds or they are super lax around other appearance altering changes, then the owner may have a case. This is one of those ones that will be based largely on conduct and what is just and equitable.

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

This post appears in Strata News #312

Question: Can a lot owner drill holes through common property verandahs to have a telephone installed in his unit on the top floor without permission from the body corporate?

Is it legal for an owner to have holes drilled through common property verandahs to have a telephone installed in his unit on top floor?

All this was done without Body Corporate approval & done very secretively.

It is a 3 Level building & concrete drillers have placed holes in levels 1, 2 & 3 verandahs. Not only is this altering common property but also changing the appearance of the lots.

Answer: This would need approval pursuant to the relevant module.

Assuming this is a lot in a building format plan, this would need approval pursuant to the relevant module (and most likely, depending on the by-laws, approval pursuant to those by-laws).

If an owner is concerned by the works, they should write to the committee asking them to enforce the by-laws / relevant module requiring approval.

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

This post appears in Strata News #244

Question: What permission is required to carry out a renovation of our unit? The renovation will be extensive and we will be changing the appearance of the lot.

I have a question regarding what permission required to carry out an extensive renovation of our unit on a group title of 6 units where we own the land where we will extend the unit.

The renovation consists of adding a bathroom and carport down one side extending 2m wide, extending the front to our boundary 1.6m with a new verandah, and therefore changing the appearance of the lot. The cost is approx $40k. Although this will change the look of the front of the unit, we have had an architect draw up the plans to be sure the design is keeping with the appearance of the exterior of the building and of other existing units.

There is a common property grassed area between the extension and the villa next door.

Do we have to get a resolution by dissent or can the committee simply approve our request? We have one agitator in the group and I feel this may cause an issue regarding the decision.

Answer: The starting point for us with this is whose land the works will be constructed on.

The starting point for us with this is whose land the works will be constructed on? Is it on the title to the property, or is it common property? If it is common property, is there a grant of exclusive use for it? If not, that will need to be part of the program.

After that, it then depends on the by-laws in terms of what has to happen, but my bet would be the by-laws would (or at least should) provide for an application to be made to the committee for the works. Subject to the amount spent on them and who the land is actually owned by, that might need approval at a general meeting as well.

So there could be a bit more to do for this one before the green light appears. I think the safest thing to do will be to engage with the committee and ask nicely.

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

This post appears in Strata News #212.

Question: The Secretary of our Body Corporate Committee has applied for body corporate approval to install shutters after receiving a ‘No’ a few years ago. As the decision will change the appearance of the lot, is this right?

About three years ago an owner sought permission to changing the appearance of the lot by installing shutters on the whole length of the inside of the glass balustrade on her balcony. This was taken to an EGM and voted against almost unanimously with a resounding NO as it detracted from the architect’s vision and integrity of the building and because of where they will be placed the wind is a real concern.

The person is now the Secretary of our Body Corporate Committee. Now she is on the committee, she applied for body corporate approval again and they voted yes she can do this. Of the four people that voted yes for the Secretary to install the shutters only one was an owner at the time of the EGM. The others are all new members who have joined since her last application to Change the appearance of her lot.

Where do we stand when it has already been voted on at an EGM with an all most unanimous NO? Unfortunately, the committee is stacked and does not have the interest of the building as a whole in its sights.

Answer: If an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.

There are a couple of topics that pop up here.

Firstly, if an owner puts up a motion and is unsuccessful, there is nothing preventing them from putting it up again in the future.

While a general meeting decision will ordinarily override a committee one, the new application for approval was made 3 years later and, provided the shutters are installed on her lot, it sounds like something the committee is empowered to decide under the by-laws.

If owners do not like the committee’s decision and want to challenge it, they can. However, they’ll need to be able to show that the legislation was not followed or that the decision was unreasonable.

Secondly, it isn’t clear from the query whether the secretary voted on her own motion. If she did, she shouldn’t have because of the conflict of interest provisions of the modules (section 53 of both the Standard and Accommodation Modules). However, if her vote is excluded and the numbers are such that the motion still would have passed, there would be little utility in challenging the motion on that basis.

The fact that lot ownership or committee composition has changed over time does not alter our view. An owner seeking body corporate approval for something will often put their request forward again in those circumstances.

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

This post appears in Strata News #167.

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