THE OWNERS OF 100 PRESIDENT STREET, WELSHPOOL, STRATA PLAN 13322 and DAMER
[2008] WASAT 258
•4 NOVEMBER 2008
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: THE OWNERS OF 100 PRESIDENT STREET, WELSHPOOL, STRATA PLAN 13322 and DAMER [2008] WASAT 258
MEMBER: MR T CAREY (MEMBER)
HEARD: 23 SEPTEMBER 2008
DELIVERED : 4 NOVEMBER 2008
FILE NO/S: CC 112 of 2008
BETWEEN: THE OWNERS OF 100 PRESIDENT STREET, WELSHPOOL, STRATA PLAN 13322
Applicant
AND
KHALED DAMER
Respondent
Catchwords:
Strata titles - Building extension to respondent's lot located on common property - Whether any entitlement to remain - Estoppel - Scope of resolutions in favour of owner of lot - Duty of strata company to control and manage common property - Whether subject to time limitation - Adverse possession - Exclusion of Tribunal's jurisdiction where title to land in question - Allegation of vindictiveness against strata company
Legislation:
Strata Titles Act 1985 (WA), s 4, s 17, s 21Q, s 35(1)(b), s 42(8), s 83, s 121
Transfer of Land Act 1893 (WA)
Result:
Application successful
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
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The strata company of a strata scheme comprising six commercial lots sought the removal of a building extension to one of the lots located on common property. The extension had been in place for many years without ever being registered on the plan.
The owner of the lot raised a number of arguments in support of the retention of the extension. It was argued that although not registered, an exclusive use provision had been agreed upon by the strata company from time to time and that it was estopped from changing its mind. The fact that the extension had been there for some 30 years, and an assertion that the strata company's application was motivated by its vindictiveness towards the applicant, were also relied upon.
The Tribunal considered each argument in assessing whether any legal basis existed to allow the extension to remain. It found against any estoppel on the facts, because the exclusive use provision (whatever its status, given it was unregistered) did not apply to the extension. The longevity of the extension raised the question of whether a limitation for action by the strata company existed; in the general property law, this question invoked the adverse possession principle. However, according to the Tribunal, it was not a question it was able to determine, based on a statutory exclusion of jurisdiction on questions as to title to land. Finally, it considered that once a proper basis for the application was established, the motivation of the strata company in bringing the application became irrelevant.
The Tribunal made orders for the extension to be removed by a contractor to be engaged by the strata company, reserving to the applicant liberty to apply in the event of any objection to the proposed contract for works.
Background
The Owners of 100 President Street, Welshpool (strata company) seek the removal of what is described as an illegal building extension to the lot known as Unit 6 owned by Mr Khaled Damer (Unit 6, Lot 6 or Mr Damer's lot). The extension, which measures approximately 1 1/2 metres by 3 metres, is only accessible from the interior of Mr Damer's lot, but is located entirely on the common property. It was erected some time during the period 1976 to 1978. The strata plan was not registered until 1986.
Attachment 'A' to these reasons is a sheet from a search of the strata plan showing the whole of the parcel, which discloses a long strip of common property running along the southwestern boundaries of the lots. A copy of another sheet from the title search showing the configuration of the six lots is Attachment 'B' to these reasons. The extension to Mr Damer's lot is not shown, but it protrudes from the southwestern boundary of Lot 6 nearest the boundary of the parcel.
Various attempts have been made to secure for the benefit of the owner of Unit 6 exclusive rights over a section of common property straddling the boundaries of the parcel and the lot. At the very first AGM of the strata company in 1986, a motion was passed in terms that the registered proprietor of Unit 6 would have for a period of 10 years exclusive use of that portion of common property adjacent to Lot 6 and 'designated green on the accompanying sketch'. The minutes of that meeting are in evidence, but no one has been able to find the sketch. No by-law under s 42(8) of the Strata Titles Act 1985 (WA) (ST Act) consistent with the terms of the 1986 resolution was ever registered.
Subsequently, in June 1995, what was described as a 'special meeting' of the strata company was called for the express purpose of discussing the 'Exclusive Use clause' agreed upon at the first AGM relating to the paved area at the rear of Unit 6 (my emphasis).
Based on the evidence of Mr Damer, which in this respect I fully accept, the decision taken at the special meeting was at the instigation of the then owner of Unit 6, a Mr Bryce, who was in turn acting at the behest of Mr Damer, at the time the prospective purchaser of Unit 6. According to Mr Damer, he was informed by Mr Bryce that as owner of Unit 6 he would have 'full control' of the back area of common property, but Mr Damer insisted on documentary proof of that fact. On being provided by Mr Bryce with the minutes of the special meeting, he was satisfied, despite the fact that he did not have the document to which the minutes referred as being amended. Significantly, in his evidence before me, Mr Damer conceded that he did not regard the decision at the special meeting to relate to the area occupied by the building extension, because he did not know at that time that the extension was common property and not part of Lot 6. His concern, which he aired with Mr Bryce and which Mr Bryce took to the strata company, was to have rights akin to exclusive use over the paved area of common property at the rear of the building comprising the lot and the extension. Read together, the minutes of the first AGM and the minutes of the special meeting are consistent with Mr Damer's understanding that they were concerned with the paved area of common property at the rear of Lot 6 which did not include the extension.
Mr Damer became registered proprietor of Unit 6 on 26 September 1995. He says that he was unaware of any complaint about the extension until he received the application filed in the Tribunal, and that he had been permitted to use the extension as if it were his own (including leasing it) for in excess of 12 years. However, evidence has been produced of a meeting of the strata company over two days in August 2007 (at a time when Unit 6 was occupied by Mr Damer's tenant, Econovite) where, according to the minutes of that meeting produced by the applicant, the business for discussion included as item 1:
Discuss enforcing Econovite to demolish all temporary structures to building as shelter. Demolish structure over sand and salt; remove all storage frames; clean out drains; repair damaged walls to toilet; all owners to remove temporary buildings (if any); return common area to original, as per plan.
According to the minutes, 'the need to vote on Enconovite (sic) and owners demolishing and restoring common area as indicated by Strata plan' was outlined by the Chairman, '[T]he members all agreed to the above and that the buildings were unsafe and illegal', and a motion 'to restore common area as per Strata plan' was carried unanimously.
Mr Damer disputes the accuracy of the minutes.
According to the consistent evidence of the strata company's representatives, on 29 August 2008, the meeting proceeded in the presence of Mr Craig Marsland, a person described as a strata titles expert, who performed a mediation role. Mr Marsland was handed a copy of the strata plan, and on being shown the building extension and other encroachments on the common property, is said to have commented 'all these buildings are illegal' and 'they all (must) go'.
Mr Damer's version of events on that day was that Mr Marsland was shown the area at the rear of Lot 6 with a view to that area being no more than 'cleaned up' in order to comply with the local government authority's requirements for the parcel. The existence of any structures on the common property was, according to Mr Damer, never mentioned. Mr Damer's son, Mark Damer, gave evidence to the similar effect.
Bases upon which respondent's claim to exclusive use of the building extension is based
In the Tribunal's management of the proceeding, in a number of directions hearings, the respondent was made aware (if he did not know already) that in order to resist the application, it was essential that he identify a legal basis for a continued entitlement to the extension, and that the difficulty he faced arose because such rights as he relied upon had not been confirmed by any of the procedures laid out in the ST Act. So, for example, the extension was not made the subject of a resolution under s 21Q of the ST Act to amend the strata plan to incorporate the extension into Mr Damer's lot, nor, as I have mentioned, was it made the subject of an exclusive use bylaw under s 42(8) of the ST Act. At a directions hearing on 23 May 2008, the proceedings were adjourned to enable an application by the respondent for such an exclusive use bylaw at an extraordinary general meeting of the strata company. I am informed that that application did not receive the required resolution without dissent. At a further directions hearing on 24 July 2008, I ordered that the respondent file a document identifying any legal basis for claiming an entitlement for the extension to remain. The respondent obtained the assistance of solicitors to prepare such a document. That document, described as the respondent's statement of issues, facts and contentions, made reference to the resolution recorded in the minutes of the special meeting on 21 June 1995, and asserted:
The applicant is estopped from changing its mind during the life of the building and insisting that the building extension be removed.
It is clear that the evidence on the subject including the respondent's evidence, to which I have already referred, runs counter to any estoppel argument. This is because whatever the status of the resolutions bestowing exclusive use, first for a period of 10 years, and later 'for the life of the building', those resolutions applied only to the external paved area of common property and did not include the building extension. The requirement for any estoppel of a representation in respect of the extension is wholly lacking.
Mr Damer raised some further issues in a letter to the Tribunal dated 15 September 2008, and at the hearing confirmed my own characterisation that he relied upon the following assertions:
a)That the extension had been there for some 30 years and a requirement for its removal now would be unreasonable; and
b)The actions of the strata company were vindictive.
I will deal with each matter separately.
Longevity of extension
Strata titles are a type of community title created by statute. Upon the registration of a strata plan, the parcel to which the plan relates is divided into lots and common property in accordance with the plan. Once registered, the lots comprised in the plan may be dealt with in the same manner as land held under the Transfer of Land Act 1893 (WA): s 4 of the ST Act. Common property is held by all the proprietors as tenants in common in shares proportional to the unit entitlements of their respective lots: s 17(1) of the ST Act, and in each Certificate of Title to a lot, the Registrar of Titles is to certify the proprietor's rights in respect of the common property accordingly: s 17(2) of the ST Act. As such, the registration requirements of the Torrens system and the concept of indefeasibility of title upon which they are based apply in the strata titles context. Further, in executing its duty to control and manage the common property for the benefit of all the proprietors under s 35(1)(b) of the ST Act, the strata company is charged with the responsibility of reining in any proprietor treating common property as the exclusive domain of that proprietor. This is the essence of the application by the strata company in this case.
The length of time that the building extension has existed going back to before the registration of the strata plan in 1985 raises the issue of whether there exists a time limitation for action by a strata company in these circumstances, beyond which it loses its right to reclaim the common property for all proprietors (or, at least, entitles the adjudicator this Tribunal to exercise a discretion to withhold relief). In the general property law, the question of whether, and when, the rights of the legal, 'documentary' owner of land can be defeated by someone else who has been in possession of the land in question (typically a small part of a larger parcel to which the legal owner has title) is determined by reference to whether the other person can establish a claim of adverse possession. The issue of whether or not adverse possession can apply to strata titled land is an open one. But it is not one upon which the Tribunal can engage, due to the legislative exclusion from the jurisdiction of the Tribunal 'in any case in which the title to land is in question' which appears in s 121 of the ST Act. Any such question is within the exclusive provenance of the courts.
The consequence is that the strata company, in exercising its common property control and management function, is entitled to an order to remove the extension.
I also accept the evidence of the strata company's representatives, and reject the evidence of Mr Damer and his son to the opposite effect, that the existence of the extension (amongst other encroachments) as an illegal structure was discussed at the strata company meeting on 29 August 2008, that those present at the meeting, including Mr Damer, resolved to restore the common property so as to accord with the strata plan, and that that restoration included removal of the extension. The strata company's entitlement to enforce compliance with one of its resolutions under s 83 of the ST Act constitutes a secondary basis upon which an order for removal of the extension is warranted.
Application as an example of strata company's vindictiveness against respondent
As I indicated in the hearing, there is no place for partiality, selective enforcement of powers or the like on the part of a strata company in its dealings with proprietors. That Mr Damer feels that he has been the subject of such treatment is regrettable. However, once it is accepted that a proper basis for the application exists (and I have identified two such bases for this application), whether or not the strata company is acting in the ways alleged cannot affect the final outcome of the application. Any proprietor has rights under the ST Act to seek relief, if he or she so wishes, for any perceived failures of the strata company to comply with its obligations.
Conclusion and Orders
For the reasons which I have given, there will be an order for the removal of the building extension to Unit 6.
At one time, the parties were in dispute regarding who should bear the cost of the removal and making good of the rear wall to Unit 6. However, in what I regard as a conciliatory gesture by the representatives of the strata company, it was conceded that the strata company should bear the cost, and arrange for the works to occur. The parties agreed that the strata company would decide upon a contractor for the purpose and notify the respondent who would have the ability to apply to the Tribunal in the case of any objection to the strata company's decision.
The Tribunal orders that:
1.The building extension to Unit 6 is to be removed and the rear wall of Unit 6 made good, such works to be arranged by the strata company.
2.By 3 December 2008, the strata company is to notify the respondent of the details of any contract it proposes to enter in discharging its obligation under paragraph 1.
3.The respondent has liberty to apply by 10 December 2008 with respect to any such notification exercisable by written notice to the Tribunal and the strata company.
4.Subject to any further order, by 17 December 2008, the strata company shall engage the contractor to undertake the works.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR T CAREY, MEMBER
Attachment A
Attachment B
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