Harman and The Owners of 34 Shere St Kenwick Strata Plan 35013
[2006] WASAT 95
•11 APRIL 2006
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: HARMAN and THE OWNERS OF 34 SHERE STREET KENWICK - STRATA PLAN 35013 [2006] WASAT 95
MEMBER: DR B DE VILLIERS (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 11 APRIL 2006
FILE NO/S: CC 3593 of 2005
BETWEEN: EDWIN AND TERESA HARMAN
Applicants
AND
THE OWNERS OF 34 SHERE STREET KENWICK - STRATA PLAN 35013
Respondent
Catchwords:
Strata title Maintenance of common property Can strata company use its funds to maintain garden which forms part of a lot?
Legislation:
Strata Titles Act 1985 (WA), s 14(1)(c), s 35(1)(b), s 36(1), s 36(1)(a), s 36(1)(c), s 81(1), s 100, Sch 1 Bylaw 1
Result:
Orders made
Category: B
Representation:
Counsel:
Applicants: Self-represented
Respondent: Self-represented
Solicitors:
Applicants: N/A
Respondent: N/A
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of the Tribunal's decision
The application by Mr Edwin Harman and Mrs Teresa Harman relates to their concern that funds levied by the strata company are used for the maintenance of gardens that form part of the respective lots. They also take issue with the way in which the contribution of the respective units is calculated. It appears from the facts that the strata company has been using a garden service to mow the lawns of all gardens including areas that form part of individual lots.
The Tribunal made orders for the strata company to discontinue the funding of maintenance work on individual lots.
Background
This application concerns a variety of issues that have arisen from the management of the strata complex. The Tribunal was requested to deal primarily with an increase in the monthly levy of Unit 5 to pay for lawnmowing arising from the extraordinary general meeting held on 19 October 2005.
Mr Edwin Harman and Mrs Teresa Harman (applicants), who are the proprietors of Unit 5, contended that the decision was not proper and that they are being discriminated against since their proportion of lawn does not justify the $10 per quarter increase. The applicants acquired the property but the levy was increased before settlement. They contend that they were not properly informed of the increase until after settlement had occurred.
The applicants also raised in the course of submissions several other issues regarding the management of the strata complex that concern them.
The strata company (respondent) made submissions to explain why the levy was increased to cover lawnmowing. It also responded to several other queries raised by the applicants. Ms Edwards, the council secretary, explained that the respondent was attempting to save money where it could and at no stage intended to breach the Strata Titles Act 1985 (WA) (ST Act). The respondent was in a learning curve in regard to the management of a strata complex. Although the applicants expressed a preference for a strata manager to be appointed, Ms Edwards expressed concern at the possible cost thereof. She indicated, however, that a meeting of owners will be convened as soon as the Tribunal has determined this application to discuss the implications thereof and the future management of the strata complex.
The other outstanding issues, other than the lawnmowing dispute, raised by the applicants in the course of submissions did not form part of the application and the Tribunal will not make a determination on each of them. All the proprietors are, however, encouraged to discuss the other issues at a properly constituted meeting and to consider obtaining external assistance to ensure that the management of the complex complies with the ST Act.
Although there may be benefits in managing a strata complex without external assistance, there are many obligations, legal and financial, that arise under the ST Act that laypersons may not necessarily be aware of. The application before the Tribunal would probably not have reached this stage had the respondent obtained correct and accurate information about its responsibilities and obligations under the ST Act.
Lawnmowing
The applicants tendered photographs to show the area of lawn in front of Unit 5 which is at the centre of the dispute. The area is approximately 2 metres by 10 metres. The photographs also show the lawns that are to the front of the other units as well as the common area driveway.
It appears from the submissions by the respondent that it had obtained a quote from a garden service company to mow all the lawns for the sake of convenience and practicality. This includes lawns that form part of the lots as well as the common area lawn. The applicants take issue with the decision to mow private lawns from strata company funds.
Consideration
At the centre of the dispute are two issues, namely:
(i)mowing of private lawn areas, and
(ii)contribution to mowing of common lawn property.
The Tribunal will first deal with the mowing of private lawns.
Strata plan 35013 was registered on 31 December 1998 and demarcates as part of each lot the garden/lawn area around it. In the case of Unit 5, the strata plan defines as "part of the lot" the area to the front of the lot which measures 2.04 metres by 10.99 metres. The other four lots also have their garden area defined as "part of the lot".
The area shown on the photograph between the front door of Unit 5 and the parking bay (as a partly paved and partly lawn area) is part of Lot 5 and must be treated accordingly.
Each proprietor is therefore responsible to maintain their lot the internal area of the building as well as the garden area at their cost. It may seem to be pedantic where an area of lawn is divided into "part of a lot" and "common area" but that is how the strata plan defines it. The Tribunal and respondent must accordingly give effect to it. Where lawn that forms part of a lot abuts common property lawn, the most sensible solution would be for the parties to agree where their respective responsibility ends. If agreement cannot be reached, the assistance of a surveyor can be obtained to determine the exact line of demarcation. Hopefully, the owners would be able to come to a sensible agreement rather than to incur further costs.
Schedule 1 Bylaw 1 of the ST Act places an obligation on each proprietor to "repair and maintain his lot and keep it in a state of good repair". Such activities are at the cost of the proprietor since it is their private property.
It therefore follows that the levy imposed by the respondent to maintain common property cannot be used for purposes of mowing the lawns or maintaining the gardens that form part of each unit's lot. It is the responsibility of individual proprietors to make such arrangements.
If some or all of the proprietors decide to jointly retain a gardener for their respective lots, or if they decide to jointly acquire fertilizer or to acquire shared equipment, they can do so but not under the auspices of the respondent. It is their private business and no proprietor can be obliged to contribute to the scheme.
The decision by the respondent to raise levies for the purpose of mowing all lawn areas (including those lawns that form part of the lots) was therefore in breach of the ST Act. The Tribunal is, however, not satisfied that the requirements of s 100 of the ST Act have been met since the decision was made prior to settlement. If the applicants take issue with the vendor for not having informed them of the decision, it is for them to pursue it against the vendor. However, I trust that the applicants would find comfort in the outcome of these proceedings.
The Tribunal is of the view that there is not merit, given the small sum of money involved, to order a refund to the respective proprietors. The cost involved to determine what is due to each proprietor after mowing costs of common property and lots have been determined would probably outstrip any benefit that flows from it. However, the use of common funds for maintenance of individual lots must end with immediate effect and any surplus in the budget can be refunded to proprietors at the end of the financial year, or alternatively, be used towards future expenses.
An order should therefore be made to require that the respondent must, with immediate effect, refrain from using any of its funds towards maintenance, including lawnmowing of garden areas that form part of the respective lots.
The Tribunal will secondly deal with the mowing of common lawn property and contributions to such costs.
It appears from the strata plan that the common property comprises mainly of the paved driveway, parking areas and a lawn area to the back of the complex opposite Unit 5. It is these areas that fall within the responsibility of the respondent.
Section 36(1) of the ST Act obliges the respondent to establish a fund for the "control and management of the common property." This ability to raise levies arises from the duty of the respondent to "control and manage the common property for the benefit of all proprietors" (s 35(1)(b) ST Act). The respondent may therefore only use the funds under its control for the common property of the complex. As explained above, private lawns may not be serviced from these funds.
The contribution of each proprietor is determined by the proportion of unit entitlement of the respective lots. The lot entitlement therefore determines the contribution that the applicants should make and not some other subjective consideration.
The strata plan shows that each lot has a unit entitlement of 20. This means that the contribution to be made to the administration fund for each unit is exactly the same (s 14(1)(c) ST Act). The applicants must therefore pay the same levy as the other proprietors.
The respondent was therefore acting within its powers when it increased the levy of Unit 5 to $160 per quarter to bring the levy of Unit 5 on par with the other units, but it erred by allocating part of the levy to the mowing of lawns that form part of individual lots. The question whether the vendor complied with its obligations to advise the applicants of the proposed increase in levy is for the applicants to take up with the vendor.
Orders should therefore be made:
(i)to oblige the respondent to determine the amount each proprietor must contribute to the administration fund in proportion to each unit's entitlement, and
(ii)for the respondent to utilise the funds at its disposal for the maintenance and upkeep of the common property.
The Tribunal makes these orders pursuant to s 81(1) of the ST Act.
Orders
1.The strata company must, with immediate effect, refrain from using any of its funds towards the maintenance of the respective lots, including mowing of lawn and upkeep of garden areas that form part of the lots.
2.The strata company must, pursuant to s 36(1)(c) of the Strata Titles Act 1985 (WA), determine the amount each proprietor must contribute to the administration fund for the maintenance and management of common property in proportion to each unit's entitlement.
3.The application for the strata company to refund monies that were used for the mowing of lawns that form part of the respective lots is dismissed.
4.The strata company must, pursuant to s 36(1)(a) of the Strata Titles Act 1985 (WA), utilise the funds at its disposal only for the maintenance and upkeep of the common property such as the common lawn area, common driveway and parking areas.
I certify that this and the preceding [29] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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DR B DE VILLIERS, MEMBER
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