KELLY and THE OWNERS OF PARKLANE APARTMENTS - STRATAPLAN 4386
[2005] WASAT 110
•20 MAY 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985
CITATION: KELLY and THE OWNERS OF PARKLANE APARTMENTS - STRATAPLAN 4386 [2005] WASAT 110
MEMBER: MR T J CAREY (MEMBER)
HEARD: DETERMINED ON THE PAPERS
DELIVERED : 20 MAY 2005
FILE NO/S: CC 269 of 2005
BETWEEN: VALERIE PRISCILLA KELLY
Applicant
AND
THE OWNERS OF PARKLANE APARTMENTS - STRATAPLAN 4386
Respondent
Catchwords:
Real property - Strata titles - Requirement for replacement of front door of lot and part of common property to match other doors in complex - Strata plan 4386
Legislation:
Strata Titles Act 1985 (WA), s 35(1), s 83(1)
Result:
Application upheld
Category: B
Representation:
Counsel:
Applicant: Self-represented
Respondent: Self-represented
Solicitors:
Applicant: Self-represented
Respondent: Self-represented
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR T J CAREY (MEMBER):
REASONS FOR DECISION
The Issue
The issue raised by this application is the validity of a strata company requirement that the front door of the applicant's lot be removed and replaced with a door in keeping with other doors in the complex.
The Plan and Relevant Act
Strata plan 4386 ("the plan") was registered on 24 January 1977 pursuant to the Strata Titles Act 1966 ("1966 Act"). The 1966 Act was repealed by the Strata Titles Act 1985 ("Act") which continues to be the relevant Act. By reason of the registration date, the external walls of lots, including their front doors, are part of the common property.
Parcel
The parcel, known as "Parklane Apartments", is situated at 132 Mounts Bay Road, Perth. It includes a five storey building comprising 38 lots and common property.
The applicant is the owner of lot 22, which is on the third floor.
Application
The application was filed on 16 February 2005. It is brought under s 83(1) of the Act, and seeks an order in the following terms:
"To revoke the direction by said owners of Parklane Apps – Strata Plan 4386 that I be forced to remove existing entry door to Unit 22 and install [sic] a door to match all other doors."
In the "grounds" section of the application, the applicant states:
"Entry door to Unit 22 has a chisselled [sic] rather than flat face. All front doors to complex have flat surfaces but do not match in-door handles or position of door handles. Door was replaced by previous owner, reportedly because of a burglary. I was ordered to change existing door 'TO MATCH ALL OTHER DOORS'. The complex has 38 units and a number have grilled flywire doors which cover entry door. None of the flywire doors either match in colour or design. If matching doors was the criteria, then enclosed photos confirm that this is not presently the case. I am willing to install a flywire door."
Relevant statutory provisions
Section 83(1) of the Act provides:
"The State Administrative Tribunal may, pursuant to an application of a strata company, an administrator, a proprietor, a person having an estate or interest in a lot or an occupier or other resident of a lot, in respect of a scheme, make an order for the settlement of a dispute, or the rectification of a complaint, with respect to the exercise or performance of, or the failure to exercise or perform, a power, authority, duty or function conferred or imposed by this Act or the by‑laws in connection with that scheme on any person entitled to make an application under this subsection or on the council or the chairman, secretary or treasurer of the strata company."
Section 35(1) provides relevantly:
"(1)A strata company shall:
(a)control and manage the common property for the benefit of all the proprietors.
(b)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 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."
Uncontested facts
The applicant purchased lot 22 in late 2003. Before the change of ownership, the front door of the unit had been replaced, possibly resulting from a burglary. It appears that the door which was replaced had a flat face, whereas the replacement door was of the "chiselled" type comprising a number of panels in a conventional pattern. No permission from the strata company for the installation of this type of door was obtained. The strata manager has, apparently in accordance with the wishes of the strata company expressed at an AGM, requested that the applicant replace the door with a flat surface door, failing which it would do so at the applicant's cost. Reasons for this requirement as expressed in the several letters sent to the applicant by the strata manager on the subject included "to be in keeping with all the other doors at the complex", "replace the door with a door that matches all others" and "in order to maintain a unified appearance of the entire complex it is necessary that your front door that is in situ be removed and it (be) replaced with a door that matches all other doors at the complex".
Applicant's submissions
The applicant states that she suggested to the strata manager that she be granted permission to install a grilled flywire door and leave the existing front door unchanged. The response was to agree to a flywire door being installed, but the requirement to replace the solid door remained.
The applicant considers the requirement to replace the front door, even if she were to install a flywire door, illogical for three reasons:
(a)The flywire door would effectively obliterate the front door.
(b)Her door, consistent with the front doors of other lots, are recessed from the connecting corridor and therefore effectively invisible.
(c)When the units with flywire doors are considered, significant variations exist in design and colour, especially in relation to those doors closest to the lift/stairwell which are much more visible.
Responses to application
Responses have been filed by one of the other owners and by the secretary of the Council of Owners.
The owner stated that although she thought the applicant's offer to install a flywire door was reasonable, two matters had been pointed out which persuaded her that the front door of lot 22 should be replaced. Those matters are that the door has not been fitted properly and that it might represent a fire risk.
The Council of Owners secretary's submission took these matters further. It claimed that the fitting of the door was such that gaps can be seen at both the top and side of the door, and photographs which suggest that this is the case were enclosed. More significantly, according to the submission, enquiries of the City of Perth Building Department revealed that the door did not meet the relevant fire rating for the class of building, which required the door be a minimum of 48mm thick, solid core, and self closing. The original doors are solid core doors of 42mm thickness. The submission referred to a failure by the strata manager to communicate these reasons for the rejection of her suggestion to Ms Kelly, and to a meeting with her, when these concerns were explained. According to the submission it was suggested to the applicant that she address them by changing her door, and she indicated her preference for the issue be determined by the Tribunal.
Applicant's reply
The applicant pointed out that the earlier objection to the front door of lot 22 was on the basis of visual differences between the door and other front doors in the complex, without any reference to potential fire hazards. The applicant obtained two quotations for the cost of replacement doors, which were approximately $600 and $300 respectively. The applicant said that she inspected the lot on the top floor of the complex and observed that it had two doors of the chiselled variety similar to her own.
Consideration
Neither party's submission's placed significance on the fact that the front door of lot 22 is common property. I consider it to be the critical fact. The strata company has identified a number of reasons why the door should be replaced, including its non – compliance with "new standards for fire protection", which, as the applicant points out, was not a reason given at the time the demand was made. In my view, even if the fire safety capability of the door is problematic, the strata company does not have any authority to require its replacement by the applicant who does not own it outright. It may have been entitled to do so in respect of the previous owner who on its case replaced an item of common property with a non – identical item which was inappropriate. However, by the time of the first demand received by the applicant, she has been in ownership for approximately one year, and the strata company's action was simply too late.
This is not to say that the strata company should not take action in respect of parts of the common property which it has identified as being in contravention of current fire safety standards. It is required to comply with its duties in respect of the common property under s 35(1) of the Act, which, on the case it has brought to the Tribunal in response, might entail replacing the door of the applicant's lot and possibly some if not all of the remaining front doors in the complex with doors which comply with the current fire safety requirements.
Order
The Tribunal orders:
Any requirement for the applicant to replace the front door of the applicant's lot 22 with a flat surfaced door is revoked.
I certify that this and the preceding six pages comprise the reasons for decision of the Tribunal.
______________________________
T Carey
Member
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