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Lecture

7. Community Titles

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Department
Law
Course
JSB171
Professor
All Professors
Semester
Spring

Description
Community Titles Schemes = a single community management statement recorded by the registrar identifying scheme land: s10(1)(b) BCCM Act. A community titles scheme must— (s 10(4) BCCMA; s 115B LTA) 1. consist of at least two lots; 2. with common property; 3. the recording of a Community Management Statement 4. the establishment of a Body Corporate for the scheme; and Three types: • Building format plan = unit block—subdivision of building o boundaries = walls, floors and ceilings • Standard format plan = townhouse complex—subdivision of land o Boundaries = marks on the ground | survey pegs • Volumetric format plan = roads & railways etc o with reference to marks on the ground or structural elements such as survey pegs in the ground or the corner of a building. Interests of lot owners • separate distinct indefeasible title for each lot: s 37 LTA. • A lot owner may deal with the lot as other land under Torrens subject to BCCMA and regulation module: Ch 5 Sale of lots. • [Lot owner] owns lot and common property as tenant in common with the other lot owners in proportion to their entitlement as in interest schedule in the CMS: s 35(1) BCCMA • They are inseparable interests: s 35(3) BCCMA (can’t sell lot without also selling interest in common property) If CMS does not state which module applies, SMR applies: s21 BCCMA 1 (6) Community Titles Andrew Trotter LWB244 Property B [I] M ONEY M ONEY M ONEY Expenditure of Body Corporate Maintenance of Common Property & BC Assets The BC administers the common property for the benefit of all lot owners: s 94(1)(a) BCCMA; s152(1)(a) SMR; • Body corporate must maintain common property & BC Assets in good order and condition, including where appropriate in a structurally sound condition: s 94(1)(a) BCCMA; s159(1) SMR; s109 BCCMReg; Lubrano Standard ‘Good order and condition’ = to keep in good repair and to an acceptable standard of cleanliness (Body Corporate for Oceana on Broadbeach Community Title Scheme 24163 v Searle) • Obliged to replace if cannot be reasonably repaired Extent of Duty • Common Property = land in the scheme that is not part of the lot: s 10(2)(b) BCCMA (eg stairways, foyers, driveways, swimming pools, lifts; attached to outside walls) • Owned by owners as TIC: s35(1) BCCMA • Body corporate assets = pool table, gardening equipment etc: s11 BCCMA • Owned by body corporate beneficially for lot owners: s45 BCCMA • Building format plans (units etc) → must maintain in good condition—railings on boundary | doors, windows, roof: s159(2) SMR BUT not for— o fixtures or fittings installed by the occupier of a lot for her or his own benefit: s159(3)(a) SMR o Utility infrastructure supplying utility services only to a particular lot even though on common property: s 159(3)(b) SMR (eg. hot water system/air conditioning system installed on common property but only supplying to one lot  owner responsible for pipes & wires) Effect of Breach • Failure to maintain → breach of statutory duty → damage can be recovered from Body Corporate: s 94(1)(a) BCCMA; s159(1) SMR; York North; Lobrano o Even if contractor employed: s 97 BCCMA o Contributory negligence by owner may be taken into account: York North (failure to maintain gutters causing water to leak into lot—owner not residing there | did not check for 7 months  liability reduced by half) • BC is a separate legal entity & can sue & be sued: s33(2) Improvements The BC may make improvements to the common property: s 159 BCCMA. • Work can be done without authorisation if cost is $300 per lot but $2000 per lot: s163(1)(c) & s163(5) SMR; or o >$10,000 or $1,100 per lot (lesser amount): s152 SMR (6) Community Titles 2 Andrew Trotter LWB244 Property B Paying for Improvements & Repairs • Spending of a capital or non-recurrent nature → Sinking Fund: s 148(1) SMR. (eg. Replacement of roof, carpets in common foyer; repainting common property; or replacing air conditioning plant) • Recurrent expenditure → Administrative Fund: s148(2) SMR (eg. insurance, BC assets, electricity accounts in stairwell, driveway, postage of notices of meeting to members, regular gardener) • Unexpected expenses not provided for in budget | funds inadequate → special levy imposed on all owners by ordinary resolution: 141(2) SMR • Irrelevant that some occupiers use more than others: s47(2) BCCMA • Lot-holders jointly liable • Single payment or instalments • Contribution schedule: equal unless just & equitable reasons otherwise: s46(7) BCCMA Work done by Owners Maintenance Duty Conditions imposed in regulation: s160 BCCMA • Occupier—must keep parts visible from another lot in clean and tidy condition: s 170(1) SMR • Owner—must maintain lot in good condition: s 170(2) SMR • Includes utility infrastructure within boundaries: s 170(4) SMR • Common property → BC: s170(3) SMR Breach Body corporate may carry out: s 171(1) SMR and recover the reasonable cost: s 171(2) SMR. • No action in trespass against person authorised to carry out work: s 163(1)(b) BCCMA o Or to investigate whether necessary: s 163(1)(a) BCCMA o Must give 7 days notice: s 171(2)(b)(i) BCCMA  Unless emergency: s 171(2)(a) BCCMA o Penalty for obstructing 20PU: s 171 Improvements [→BL 8] Lot owner may make improvements to common property with consent of BC: s159 BCCMA; s164 SMR • No resolution required if not common property—separate indefeasible title: s 37 LTA • Ordinary resolution required unless a minor improvement: s164(2) SMR 1. Installed value >$3000 2. Does not detract from appearance of lot/common property 3. Not likely to promote breach of owner’s duties • Lot owner obliged to maintain improvement: s164(4) SMR • If improvement made without authorisation, BC can— o require improvement to be removed from common property o have it removed at expense of lot owner: BCCM Act, s161 and SMR, s171 3 (6) Community Titles Andrew Trotter LWB244 Property B Statutory Easements (← prevents complaints about pipes etc) • Easement implied for provision of utilities, services and utility infrastructure (s 115O LTA) • Includes— (Sch 6 BCCMA) o “utility service” (a) water reticulation or supply; or (b) gas reticulation or supply; or (c) electricity supply; or (d) air conditioning; or (e) a telephone service; or (f) a computer data or television service; or (g) a sewer system; or (h) drainage; or (i) a system for the removal or disposal of garbage or waste; or (j) another system or service designed to improve the amenity, or enhance the enjoyment, of lots or common property. o “utility service provider” – means the supplier of a utility service to scheme land o “utility infrastructure” – cables, wires, pipes, sewers, drains, ducts, plant and equipment by which lots of CP are supplied with utility services Insurance The body corporate has an insurable interest: s 190 BCCMA Insurance requirements set out in regulation: s 189 BCCMA. BC Must— • Insure to full replacement value the common property and body corporate assets (s178 SMR) • Building format plan → insure building to full replacement value (s 179) • Standard format plan → insure buildings with adjoining walls (s 180) • Public risk insurance of the common property and body corporate assets: s 187(1); covering— • death, illness and bodily injury (s 187(3)(a)(i)) and • damage to property (s 187(3)(a)(ii)) • to the extent of $10 million for a single instance: s 187(3)(b). Insurance money received by the body corporate must be applied to repair, reinstate or replace property affected: s 189 SMR Original owner • must take out the initial insurance and maintain it for the first year of the CTS: s 191(2) BCCMA (Maximum penalty under s 191(2) = 150 penalty units) • Otherwise BC can recover from the original owner the cost of insurance as a debt. (6) Community Titles 4 Andrew Trotter LWB244 Property B [II] TENANTS B EHAVING B ADLY Standards of Behaviour: s167 BCCMA [→ BL, improvements] An occupier must not use the lot or common property in a way that causes or (permit someone to cause)— • a nuisance, (a) (physical injury to land) | substantial interference with land) o Noise → also bylaw 1 o Garbage → also bylaw 7 o Animals → also bylaw 11 • hazard (a) (exposed a person to danger) • interfere unreasonably with use or enjoyment of o another lot (b) o or common property (c): Bartlett Lodge (2 security cameras—attached to exterior wall—without authority of BC—moving camera was an unreasonable interference | but not stationary camera) [→ BL3] By-Laws Bind BC, owners and occupiers: s 59 BCCMA (as mutual covenants: s 59(3)(a) BCCMA). • Body Corporate must enforce the CMS (including any by-laws): s 94(1)(b) BCCM Act. • CMS binds lot owners, BC and occupiers of lots: s59 BCCM Act Bylaws included in CMS • Added or changed by special resolution: s 62(3) BCCMA • May only provide for— s 169(1) BCCMA a) management of common property b) Regulation of the use and enjoyment of lots, common property c) Other matters permitted by the BCCMA • Invalid if inconsistent with BCCMA: s 180(1) BCCMA Bylaws not included → Sched 4 Applies: s 168(2) BCCMA Must not— • create noise likely to interfere with the peaceful enjoyment of a person lawfully on another lot or the common property: By-law 1 • Change external appearance of lot without BC approval: By-law 8(1) (painting walls | inserting new window frames | installing air-conditioning unit | enclosing the balcony) → see also improvements  UNLESS change is minor and does not detract from the amenity of the lot and its surrounds o INCLUDING hanging washing (By-law 8(2)(a)) or signs & advertisements (By-law 8(2)(b)) where visible from another lot or outside  EXCEPT real estate sign of reasonable size: By-law 8(3) o DOES NOT APPLY to standard format plan: By-law 8(4) o Only where would reasonably be viewed from person outside lot: Re Saunders (air conditioning compressor on open balcony—could be seen from adjoining lot—but only from unlikely position  not an alteration to external appearance → OK) o SP 464 v Osbourne (window frames replaced without BC approval  breach) 5 (6) Community Titles Andrew Trotter LWB244 Property B • Bring or keep animal on property without BC written approval: By-law 11(1)(a) → also s167(a) (nuisance); BL4 (lawn); BL7 (rubbish) o Including invitees: By-law 11(1)(b) o Must obtain BC written approval: By-law 11(2) o EXCEPT—  Guide Dog: s181(1) BCCMA; s5 Guide Dogs Act 1972 • Cannot be excluded by by-laws: s181(3) BCCMA  Implied consent—if knowledge of BC & had pet for 1 year: Primrose Apartments  Discrimination (if the same animal): Primrose Apartments (cat not the same as a Doberman) o Conditions may be attached: Pivotal Point (poodle—confined to lot & not on common property—1m lead—revocable if nuisance) • Damage common property (nails or screws): By-law 5 o But may install locks or screens if consistent with colour, styles & materials: By- law 5(2) o Must keep in good order & repair: By-law 5(3) • Park on common property without BC approval: By-law 2; o Individual need to park not relevant: Timber Top Terraces (converted garage for business—parking on CP—breach of BL4  by-law within scope of s 169—BC must enforce CMS—cars to be removed) • Obstruct the lawful use of common property
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