As I always tell my children (not that they listen to me) ….rules are rules.
Active Law was recently involved in a matter (Riverford  QBCCMCmr 606 – which at the time of writing is unpublished) where an owner placed an air-conditioning condenser on common property without first seeking the consent of the body corporate.
The body corporate sought an order that the condenser and associated infrastructure (“Equipment”) installed on the common property be removed.
The owners argued they did not require the prior consent of the body corporate because they had a statutory right under section 115O of the Land Titles Act to install the Equipment.
Section 115O provides:
115O EASEMENTS IN FAVOUR OF LOTS FOR UTILITY SERVICES AND UTILITY INFRASTRUCTURE
- An easement exists in favour of a lot and against other lots and common property for supplying utility services to the lot and establishing and maintaining utility infrastructure reasonably necessary for supplying the utility services.
- However, the exercise of rights under the easement must not interfere unreasonably with the use or enjoyment of the lot or part of common property against which the easement lies.
The Adjudicator found the statutory right under section 115O applied in the circumstances. Disappointingly, the Adjudicator also found that the operation, installation and/or maintenance of the condenser did not interfere unreasonably with the use and enjoyment of the common property against which the statutory easement lies.
Essentially the Adjudicator found the owners did not require body corporate authorisation to use common property through for example, a lease, licence or exclusive use allocation.
The Adjudicator went on to find common property had been changed by the installation of the condenser and that the condenser was an improvement to the common property.
Under section 164 of the Standard Module (section 162 of the Accommodation Module) the body corporate may, if asked by an owner of a lot, authorise the owner to make an improvement to the common property for the benefit of the owner’s lot.
In “Riverford” the owners did not ask!
Critically, the Adjudicator found:
- the existence of a statutory right to use common property did not overcome the requirements of section 164 of the Standard Module;
- that the body corporate retains power to control the installation; and
- the body corporate may give authorisation on conditions it considers appropriate.
Importantly, the Adjudicator also found that the body corporate had a duty (our emphasis) to pursue the owners when they made a change to common property without body corporate approval.
This statement by the Adjudicator suggests committees cannot turn a blind eye to unauthorised improvements to common property by owners.
As always. Active Law is here to help with any of your body corporate legal requirements
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