NB: The Residential Body Corporate Act is fictitious
In January 30 2014, the Queensland Parliament passed the Residential Body Corporate Act, an Act about residential body corporate relationships and related matters. The Minister for housing, Ms Lynne Lovely made the following comments in her Second Reading Speech in Parliament in relation to the Act:
I am introducing this legislation into the house to bring about clarity and fairness for the rights and obligations of residents when dealing with residential body corporates. Residents who are subject to the decisions of bodies corporate can sometimes be at their mercy, particularly in terms of the full enjoyment of their property – whether rented or owned. Too often, residents are not aware of their rights in relation to a body corporate, and may feel bullied, singled out, or worse still, humiliated into complying with unreasonable body corporate rules and decisions. Residents need clarity in the role and powers of their body corporate, and guidance on how to ensure their disputes are resolved fairly and justly. It is in the interests of all parties that the relationship between the body corporate and residents is a harmonious one, and to the benefit of all residents.
Below are excerpts from the Residential Body Corporate Act 2014 (Qld)
An Act about residential body corporates and related matters.
1. This Act may be cited as the Residential Body Corporate Act 2014.
2. This Act commences on assent.
3. This Act binds all persons, including the State.
4. The main objects of this Act are to provide for the rights and obligations of residents, and the peaceful and harmonious resolution of disputes.
5. The objects of the Act are to:
(a) Provide for the peaceful enjoyment of residency under a body corporate
(b) Ensure the mutual benefit of residents under a body corporate
(c) Provide for a safe environment in a building governed by a body corporate
(d) Provide for the resolution of disputes concerning residential occupancy governed by a body corporate
(e) Provide for the establishment, functions and powers of the body corporate
6. Definitions are defined below and elsewhere in the Act as required.
Body Corporate means the Body Corporate established under this Act
Resident includes tenants, occupiers and owners
Scheme land is the entire land upon which the property and surrounds occupies
No barbeque or gas bottle is permitted on balconies.
11. The appearance of lot
(1) The resident of a lot must not, without the body corporate’s written approval, make a change to the external appearance of the lot unless the change is minor and does not detract from the amenity of the lot and its surrounds.
(2) The resident of a lot must not, without the body corporate’s written approval:
(a) hang washing, bedding or another clothe article if the article is visible from another lot or the common property or from outside the scheme land; or
(b) display a sign, advertisement, placard, banner, pamphlet or similar article if the article is visible from another lot or the common property, or from outside the scheme land.
15. Floor coverings
(1) The resident of a lot must use soft floor coverings including, carpet, sisal, carpet squares, or any other covering that will minimise noise levels to lot situated below or above.
(2) The use of ceramic floor tiles are prohibited.
(3) The body corporate has the power to effect removal of ceramic floor tiles used in breach of this section.
32. Exclusive use – courtyard level areas
(1) The residents of lots 1, 2, 3 and 4 have exclusive use of the ground level courtyard areas on the property.
(2) A resident with an exclusive use of a courtyard lot is not liable in respect of that exclusive use courtyard area for the maintenance of and operating cost of the exclusive use courtyard area (other than the resident of the lot shall not litter the area).
(3) A residents with an exclusive use courtyard area must not damage, dig-up, block, obstruct, or hinder in any way, any common utility infrastructure contained within the exclusive use courtyard area.
(4) A resident with an exclusive use courtyard area must allow the body corporate or another resident appropriate access to service and maintain any common utility infrastructure contained within the exclusive use courtyard area.
(5) A resident with an exclusive use courtyard area may only use the area for the purpose of outdoor seating using appropriate furniture. The area should not be used to store any items or in any other way likely to cause nuisance, annoyance or unsightliness.
40. Establishment of a body corporate
(1) The body corporate is established in accordance with the Corporations Act
(2) The body corporate under this Act has the following functions and powers:
(a) To administer the laws under the Residential Body Corporate Act
(b) To convene committee meetings on a regular basis
(c) To take minutes of committee meetings, and to publish the minutes to residents
(3) The body corporate may exercise its powers under the Act to enforce breaches under the Act.
In June 2014 Leila purchases Unit 1, Le Jardin, in Brisbane, Queensland.
Le Jardin is a six storey unit block on a busy street. Leila’s unit has access to the ‘exclusive use courtyard area’ as well as a tiled area of approximately two square metres of which she has complete ownership. This same tiled area is also part of other units, and is referred to as a ‘balcony’. In the units above ground level, this tiled area has the appearance of a balcony. On the ground level, however, it is part of the ground floor that extends into the ‘exclusive use courtyard area’ and does not form any overhanging structure that is usually associated with a ‘balcony’.
Over a number of months Leila carries out the following activities:
(a) In August 2014 Leila places a clothes airing stand onto the exclusive use courtyard area and uses it to dry her washing.
(b) In September 2014, Leila’s boyfriend purchases for her a barbeque and gas bottle. Leila places this on the exclusive use courtyard area.
(c) In December 2014, Leila purchases a large umbrella to provide shade over her table and chairs that are in the exclusive use courtyard area. Its diameter is approximately 2 meters.
(d) In December 2014, Leila hangs Christmas decorations and flags above and on the outside of the door that leads onto the exclusive use courtyard area. The doorway is part of her purchased property. They remain in place in April.
(e) In February 2015, Leila offers her ‘Naked Drawing’ class the opportunity to use her tiled area for the purposes of live nude drawing.
In February 2015, Belinda, a wealthy resident of Unit 16, renovates her unit by replacing all carpets with Italian marble tiles.
Katcha Leery is also a resident of Le Jardin. Katcha’s unit is on the far side of the complex and does not have any vision over the exclusive use courtyard of which Leila’s unit has exclusive use. However, Katcha is able to view Leila’s unit and the exclusive use courtyard when Katcha walks along the street. Katcha’s unit is below Belinda’s. Katcha has recently returned from a trip to the beach – fully paid for by Belinda – while her unit was being renovated. Katcha is a member of the Committee.
In March a committee meeting is held. Katcha raises a number of items including, item 6 which expresses concern of unit 1 in which there is:
(a) The use of a clothes airing stand
(b) The use of a barbeque and gas bottle
(c) The hanging of decorations and flags
(d) The use of an umbrella
(e) Inappropriate and obscene use of the courtyard level area within view of Le Jardin
Unit 1 (Leila’s unit) is resolved by the committee to be an ‘infringing resident’. Katcha’s resolution (as written up in the minutes) is to write a letter to the ‘infringing resident’ and for the ‘infringing resident’ to cease such use of the exclusive use courtyard area.
Katcha also raises another separate item in which the noise of a neighbour is raised. Katcha’s resolution on this item is to personally speak to the neighbour to resolve the issue. The unit number is not noted but Katcha mentions as part of un-minuted discussions, that the noise relates to that of ‘her neighbour above’.
Minutes of the meeting are taken identifying Leila as an ‘infringer’ of the Residential Body Corporate Act on the grounds of her use of the exclusive use courtyard area.
1. Advise Leila with respect to the following use of the exclusive use courtyard area:
(a) The clothes airing stand (5 marks)
(b) The barbeque and gas bottle (5 marks)
(c) The decorations and flags (5 marks)
(d) The umbrella (5 marks)
(e) The live nude drawing class (5 marks)
Your discussion must include the approaches to statutory interpretation, as they apply to the Residential Body Corporate Act (2014). Please do not include any reference to the Corporations Act. Your discussion will also involve advice on the methods of communication used by the Body Corporate.
2. Where there are gaps in the information you have been provided, include a list of questions you may have for your client, Leila. (3 marks)
3. Discuss the obligation (if any) of the body corporate in relation to Belinda’s use of tiling. (7 marks)