ADAMS and OWNERS OF CASA LOMA APARTMENTS STRATA PLAN 11782

[2006] WASAT 306

ADAMS and OWNERS OF CASA LOMA APARTMENTS STRATA PLAN 11782 [2006] WASAT 306

Last Update :13/10/2006

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2006] WASAT 306
Published:
Act:	STRATA TITLES ACT 1985 (WA)
Case No:	CC:791/2006	Heard:	27 SEPTEMBER 2006
Coram:	DR B DE VILLIERS (MEMBER)	Delivered:	09/10/2006
No Pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B

Parties & CatchwordsOrders


Judgment

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : STRATA TITLES ACT 1985 (WA) CITATION : ADAMS and OWNERS OF CASA LOMA APARTMENTS STRATA PLAN 11782 [2006] WASAT 306 MEMBER : DR B DE VILLIERS (MEMBER) HEARD : 27 SEPTEMBER 2006 DELIVERED : 9 OCTOBER 2006 FILE NO/S : CC 791 of 2006 BETWEEN : BJ ADAMS

Applicant

AND

OWNERS OF CASA LOMA APARTMENTS STRATA PLAN 11782
Respondent

Catchwords:

Strata titles - Exclusive use by­law - Does exclusive use include airspace - Maintenance and repair of common property

Legislation:

Strata Titles Act 1985 (WA), s 35(1)(c), s 42(8), s 42(11)(b), s 83(1)
Strata Titles Act 39 of 1966 (WA)

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Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented
Respondent : Mr Robert Kronberger

Solicitors:

Applicant : Self-represented
Respondent : Atkinson and Associates

Case(s) referred to in decision(s):

Nil

Case(s) also cited:

Nil

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REASONS FOR DECISION OF THE TRIBUNAL:

Summary

1 Mr Adams sought an order to be refunded for work he had to do, to replace lattice that became detached from the outside wall of the first floor of his unit. Mr Adams contended that the lattice was required to ensure privacy to the bathroom, that it had been installed when the building was erected and that the exclusive use by-law that covers the courtyard is limited to "reasonable" airspace which does not extend to the first floor.

2 Mr Kronberger for the respondent contended that the exclusive use by-law covers the entire courtyard including the airspace above it. The lattice is within the exclusive use area and Mr Adams is therefore obliged to maintain and repair it.

3 The Tribunal found that the entire courtyard – land and airspace - is subject to the by-law and that the maintenance and repair of the lattice is therefore the responsibility of Mr Adams.

4 The application was dismissed.

Background

5 The applicant (Mr Adams), the proprietor of unit 11, sought an order to be refunded for the costs he incurred to repair a wooden lattice that is attached to the external wall of the strata complex. The lattice serves as a privacy screen to the bathroom of unit 11. The lattice, which became detached from the wall on 21 November 2005, had to be replaced for the sake of privacy.

6 Unit 11 comprises three levels – a basement, ground and first level. The bathroom is situated at the first level – the lattice is approximately 23 feet above ground level. Without the lattice, persons from other units and from the street have a line of sight into the bathroom. Mr Adams explained that the bathroom is used mainly by his daughters and that urgent action was required to fix the lattice. Hence his decision to replace it and to recoup the cost from the strata company.

7 The issue to determine is who is responsible to maintain and repair the lattice since it forms part of common property.

8 Mr Adams contended that the lattice formed part of the original construction of the strata complex and was affixed to the building in order to comply with building regulations at the time. The lattice is therefore

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part of the common property and it is the duty of the strata company pursuant to s 35(1)(c) of the Strata Titles Act 1985 (WA) (ST Act) to maintain and repair it.

9 Mr Kronberger, who appeared for the respondent, agreed that the lattice forms part of the common property but he contended that the repair and maintenance of it is the responsibility of Mr Adams pursuant to Sch 1 by-law 17 (by-law 17) that was registered on 23 December 1988, pursuant to instrument D976744.

10 By-law 17 was enacted under s 42(8) ST Act which enables a strata company to set aside common property or part thereof for the exclusive use of proprietors. Pursuant to s 42(11)(b) ST Act, Mr Adams is responsible for the maintenance and repair of the common property the subject of the by-law – and it includes the lattice screen. Mr Adams is therefore responsible for the repair of the lattice and the application should be dismissed.

11 The application was lodged on 21 May 2006. The first directions hearing was held on 15 June 2006 and the dispute was referred to mediation. The mediation failed and on 18 July 2006, Member Carey, who conducted the mediation, adjourned the matter to a final hearing.

12 The hearing took place in two tranches. The first was on 25 August 2006 and the second on 27 September 2006.

13 Mr Adams and his wife Mrs Adams gave evidence. The respondent did not call witnesses.

14 The decision was reserved on 27 September 2006.

Strata plan and Sch 1 by-law 17

15 Casa Loma Apartments is described by strata plan 11782, registered on 21 October 1983, as a brick and tile residential complex comprising 14 units erected on those portions of Perth suburban Lots 371 and 372 shown as Lot 501 in diagram 61228. The strata plan was registered pursuant to the Strata Titles Act 39 of 1966 (WA).

16 Lot 11 has a courtyard that is marked CY 11 on the strata plan. The parties agree that the floor of the courtyard, the building and the airspace above the courtyard are common property. The boundaries of the lot extend only as far as the internal surfaces of the part of the building on which unit 11 is situated.

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17 On 22 November 1988, the strata company approved a new Sch 1 by-law 17 in regard to the excusive use of common property areas. The by-law was registered on 23 December 1988. The by-law provides as follows:

"The common areas as marked on the set of Plans marked 'Z' 1-5 of balconies, courtyards, sundecks and terraces shall be for the exclusive use of the registered proprietors of the respective lots to which they are shown on Plan 'Z'. The registered proprietors of the allocated use areas shall not alter, modify, erect or carry out any improvements on the common property for which the exclusive use has been granted, without first receiving the written approval of the strata company."

18 Plan Z 2 which shows the plan of the ground floor has "CY 11" marked in accordance with the by-law.

Issue to determine

19 The issue for the Tribunal to address is whether the duty imposed by by-law 17 to repair and maintain common property pursuant to s 42(11)(b) ST Act, includes the entire common property airspace of the courtyard including the lattice, or whether the duty is limited to the area of use on the ground level and some "reasonable" airspace above it.

Legal framework

20 In addition to by-law 17 the following provisions of the ST Act relate to the issue in dispute:

21 Section 35(1)(c) ST Act determines that –

"A strata company shall –
(a) enforce the by-laws;

(b) control and manage common property for the benefit of all the proprietors;

(c) keep in good and serviceable repair, properly maintain and, where necessary, renew and replace –

(i) the common property, including the fittings, fixtures and lifts used in

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connection with the common property; and
(ii) any personal property vested in the strata company,

and to do so whether damage or deterioration arises from fair wear and tear, inherent defect or any other cause."

22 Section 42(8) ST Act authorises the strata company to confer on a proprietor "the exclusive use and enjoyment of, or special privileges in respect of, the common property or any part of it upon such terms and conditions …as may be specified in the by-law…" (Tribunal emphasis)

23 Section 42 (11)(b) ST Act determines that the proprietor of a lot in respect of which a by-law is in force-

"(a) …

(b) is, unless excused by the by-law, responsible for the performance of the duty of the strata company under section 35(1)(c) in respect of the common property, to which the by-law relates."

Submissions and evidence by the parties

24 Mr Adams did not dispute that the lattice forms part of common property but he contended that it falls outside of the ambit of by-law 17. The reasons he advanced for his contention were threefold:

25 Firstly, the lattice forms an essential part of the structure of the building. Mr Adams acknowledged that although the lattice does not appear on the original plans of the building, it seems to have been erected as part of the construction process in order to comply with the Uniform Building By-laws 1982/1983 in force at the time. By-law 2803 of the Uniform Building By-laws required that a "water closet" must comply with by-law 2836. By-law 2836(b) in turn required that a water closet must be "properly screened from public view". Mr Adams suggested that the lattice was attached so as to comply with these building by-laws. With the effluxion of time the nails holding the lattice to the wall had corroded and it therefore falls within the responsibility of the strata company to repair the lattice.

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26 Secondly, the strata company has through their actions in the past, acknowledged that it is its responsibility to maintain and repair the lattice. Mrs Adams gave evidence that since the registration of by-law 17, the strata company has painted the walls of the building and the lattice. This evidence was not challenged by the respondent.

27 Thirdly, Mr Adams received advice from Mr Munday, Executive Director of The Strata Centre, in which it is asserted that the building structure remains the responsibility of the strata company and this includes the lattice since it is attached thereto. Mr Munday regards it as "inaccurate and misplaced, if not mischievous" to suggest the exclusive use area extends into the sky. He compared the maintenance of the lattice to the fixing of a crack in the structure of the building – both must be the responsibility of the strata company regardless of by-law 17.

28 Mr Kronberger contended that the maintenance and repair of the entire area – physical and spatial – that forms the common property courtyard has become the responsibility of Mr Adams pursuant to by-law 17. In the absence to any part of the common property being excluded from the effect of by-law 17, the entire area of common property must therefore fall under the responsibility of Mr Adams to repair and maintain. The stratum of the common property extends into the air up to the level of the roof and if the owners who had enacted by-law 17 wanted to limit its effect to a certain height, they should have made it clear in the by-law.

29 Mr Kronberger acknowledged that although it remains the responsibility of the strata company to paint the external walls of the building and to maintain the structure of the building, the lattice is an attachment to the building that falls within the ambit of s 42(11)(b) ST Act. The strata company therefore acted correctly when it advised Mr Adams in their emails, dated 23 December 2005 and 30 November 2005, that he is responsible to repair the lattice.

Consideration

30 The parties are in agreement that the courtyard of unit 11 marked "CY11" on strata plan "Z 2" is common property over which an exclusive use by-law 17 has been registered.

31 The by-law was registered by instrument D976744 on 23 December 1988. The original strata plan had an endorsement at the bottom of the page which read: "Car bays and courtyards for the exclusive use of lots as prefixed and numbered". The endorsement was given legal

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effect under the current ST Act through registration of by-law 17 pursuant to s 42(8) ST Act.

32 By-law 17 grants exclusive use over the courtyard to the registered proprietor of unit 11. Neither by-law 17 nor Plan Z 2 excludes any part of the common property from the exclusive use arrangement.

33 The parties are in disagreement in regard to two issues. Firstly, the question whether the exclusive use of the common property is limited to a spatial area associated with the reasonable use of the floor space of the courtyard or whether the exclusive use includes the airspace above the ground area for the entire stratum up to the level of the roof of the building. Secondly, if the exclusive use includes the airspace, whether the lattice falls within the repair-obligation of Mr Adams?

34 The Tribunal will address these questions separately.

35 Section 42(11)(b) ST Act determines that "unless excused by the by-law", the proprietor of unit 11 is "responsible for the performance of the duty of the strata company under section 35(1) in respect of the common property, or the part of the common property, to which the by-law relates". (Tribunal emphasis)

36 The words "the common property or any part of it" as found in s 42(8) ST Act clothes the strata company with the power to define what part of the common property falls within an exclusive use area. If no part of the common property area is excluded from the exclusive use, all of the common property area must be treated as falling within the ambit of an exclusive use by-law.

37 It is agreed between the parties that the floor space of the courtyard of unit 11 and all of the airspace up to the level of the roof of the building, form part of the common property.

38 By-law 17 does not exclude any part of the common property from its operation.

39 Mr Adams contended that the area the subject of the by-law should be limited to the floor space of the courtyard and the airspace above it, up to a reasonable level. He described "reasonable level" as the airspace that can be associated with the use of the floor area of the courtyard. In other words, if he were to erect a pergola over the courtyard it would fall within the ambit of by-law 17, but the window screen on the first floor is not linked to the reasonable use of the floor area of the courtyard. He did not

(Page 9)

provide a specific height where his responsibility would end – he merely relied on reference to what is "reasonable".

40 Mr Kronberger contended that the Tribunal does not have the power to draw an imaginary and arbitrary line where the common property airspace the subject of by-law 17 ends. If the strata company wanted to exclude a part of the common property from by-law 17, they should have done so when the by-law was enacted. In the absence of an exclusion of any of the common property, the entire area of the courtyard, including the airspace up to the roof level, falls within the ambit of by-law 17.

41 The Tribunal notes that by-law 17 refers only to the "common areas as marked on the set of Plans marked 'Z' 1-5…". Although the strata company had the power, in accordance with s 42(8) ST Act, to limit the area of operation of by-law 17 to a part of the airspace, it did not do so.

42 In the absence of any smaller area being defined as the exclusive use area, the Tribunal must therefore accept that the entire common property area, including the airspace above the floor area of the courtyard, is subject to by-law 17.

43 There is no power for the Tribunal to impose onto the strata company an imaginary line where the exclusive use airspace of unit 11 ends and the remainder of the common property airspace for which the strata company would be responsible, starts. There is further no statutory base to support Mr Adams' contention that by-law 17 is limited to a spatial area of "reasonable use". The Tribunal concludes that if the strata company had intended to limit the operation of the by-law 17 to a part of the common property, it should have done so when the by-law was enacted.

44 It is acknowledged by the Tribunal that a by-law may identify an area of exclusive use by reference to a plan or drawing (Ilkin, A., Strata schemes and community schemes management and the law 3rd ed Thompson, Sydney, 1998, p 342). But even with that in mind, Plan Z 2 does not limit the area of exclusive use to the floor area of the courtyard. The plan is silent as far as the airspace is concerned.

45 The Tribunal is satisfied that the strata company had by its reference to "common property" and its demarcation of the courtyard of unit 11, made the entire common property area – floor and airspace – the subject of by-law 17. This conclusion is consistent with the following advice offered to the public in the state of New South Wales by the Department of Fair Trading:

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"Airspace, can also extend to balconies and courtyards. You should get proper advice about the ownership of a tree in the courtyard or the responsibility to maintain a pergola covering a balcony or courtyard. They could be in your airspace and therefore, would be maintained at your cost." (Buying into a strata scheme? March 2006, Department of Commerce, p 8).

46 If the airspace above the ground area was excluded from by-law 17 as proposed by Mr Adams, other practical and legal questions might arise. For example, the photographs tendered by Mr Adams show that palms grow within the courtyard and that these extend up to the level of the bathroom. If only the lower part of the common property airspace was the subject of by-law 17, it would mean that the strata company remains responsible for the pruning and maintenance of the palms that exceed the imaginary and undefined line. Mr Adams would therefore be responsible for the lower part of the palms and the strata company for the upper part. This could for obvious reasons lead to confusion. If the strata company had such an outcome in mind, the by-law had to define the exact line where the responsibility of Mr Adams would have ended and the responsibility of the strata council would have started. The Tribunal cannot do it on behalf of the strata council.

47 In response to question one, the Tribunal therefore finds that pursuant to s 42(8) ST Act and Sch 1 by-law 17, the exclusive use of the courtyard common property as demarcated on Plan Z 2, includes the ground area and all of the common property airspace above it.

48 The second question that follows from the above finding is if Mr Adams is responsible pursuant to s 42(11)(b) ST Act for the repair and maintenance of the lattice or if it remains the responsibility of the strata company due to it being affixed to the building?

49 The Tribunal notes that the lattice may have been attached to the building at the time when the building was erected in order to provide privacy to the bathroom of unit 11. The building plan submitted does not show the lattice or any screening in front of the bathroom windows. There are also other ways in which privacy could have been ensured – for example non-transparent windows as is usually installed at bathrooms, curtains or blinds.

50 The Tribunal accepts that the lattice forms part of common property and had by-law 17 not been registered, the strata company would have

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been responsible for the repair and maintenance thereof. However, the above finding of the Tribunal that by-law 17 applies to the entire area and airspace of common property that forms the courtyard, impacts on who has the duty to maintain and repair the lattice.

51 The mere fact that the lattice is fixed to the building, does not make it part of the structure of the building. The evidence does not support the contention of Mr Adams that the lattice forms an integral part of the structure of the building. The lattice cannot be equated to cracks in walls, down-pipes, drainage pipes, gutters, and electrical works that benefit the entire scheme and must be maintained and repaired by the strata company pursuant to its general duty set out in s 35(1)(c) ST Act. The lattice does not appear in the original plans of the building and it may have been installed for convenience but that does not make it an integral part of the structure.

52 The question of whether an item that is attached to the structure of a building forms part of the responsibility of the owner of a unit or the strata company, is determined by the provisions of the by-law or the plan of the structure. Ilkin refers to two examples that usually form part of the responsibility of the strata company - a timber frame built around an airconditioning duct and a timber separation that covers the cavity that separates the first and second floor of a townhouse. He notes that the surveyor who draws the strata plan may "specifically designate the structural cubic space (although this is rarely done) as part of the lot and in this instance the owner will bear the liability for its maintenance, repair or replace. The owner will also bear the same liability if a bylaw has been passed….." (Tribunal emphasis) (page 41-42). It therefore comes down to the terms of the by-law, plan or sketch to establish who is responsible for the lattice.

53 The Tribunal concludes that in light of the fact that the lattice was not excluded from the operation of by-law 17, Mr Adams is responsible for the maintenance and repair thereof pursuant to s 42(11)(b) ST Act.

Finding

54 Following the Tribunal's findings that (a) the operation of by-law 17 covers all of the courtyard common property and (b) the maintenance and repair of the lattice is the responsibility of the proprietor of unit 11, the application for an order pursuant to s 83(1) ST Act must be dismissed since the strata company is not under a duty to perform any functions in regard to the lattice.

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Orders

55 1. The application is dismissed.

I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

___________________________________

DR B DE VILLIERS, MEMBER