Shade sails, often located on rooftop courtyards, are often the subject of maintenance disputes. The disputes can be complex including because of crucial facts such as when the structures were built, by whom, what they are made of, what maintenance has already been done to them and who paid for that. An excellent example involving all fo these questions is Oceans Mooloolaba [2019] QBCCMCmr 29.

Background

Oceans Mooloolaba, completed in 2005, is a community titles scheme consisting of 62 lots and common property.  There had been a long-running dispute between the applicants, being the owners of 5 penthouse units, and the body corporate. Each penthouse unit has a rooftop entertainment area with rooftop shade structures and floors covered by ceramic tiles (laid directly over a waterproofing membrane).  The dispute was about who was responsible for maintenance of the waterproofing membranes, tiling and shade structures in the outdoor areas.

The applicants sought relief in respect of two issues, (1) the membrane and (2) the shade structures, arguing that the body corporate was in breach of its statutory obligations under the Accommodation Module by:

1. failing to maintain in good condition the waterproofing membranes and the tiling; and
2. failing to maintain in good condition, including in a structurally sound condition, the roof top shade structures.

In this article we look at the shade structure issue only.

The Law

Under s170[1] of the Accommodation Module:

• The body corporate must maintain common property in good condition, including, to the extent that common property is structural in nature, in a structurally sound condition.
• To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must –
• maintain in good condition-
• railings, parapets and balustrades on (whether precisely, or for all practical purposes) the boundary of a lot and common property; and
• doors, windows and associated fittings situated in a boundary wall separating a lot from common property; and
• roofing membranes that are not common property but that provide protection for lots or common property; and
• maintain the following elements of scheme land that are not common property in a structurally sound condition-
• foundation structures;
• roofing structures providing protection; and
• essential supporting framework, including load-bearing walls.

What did the applicants argue?

The applicants argued that the body corporate has a mandatory duty to maintain common property under s170(1) which cannot be avoided even if the owners, in a general meeting, decide not to repair the shade structures.  This duty also extends to rectifying structurally defective building works or faulty materials when the building was constructed. The applicants submitted that it was the body corporate’s responsibility to repair the shade structures in each penthouse, because the function of the structures was to substantially protect the rooftop area from the elements.

What did the body corporate argue?

The respondent body corporate disagreed and raised various arguments regarding the responsibility and maintenance of the shade structures, in turn submitting that:

1. the shade structures were owner improvements to the penthouse lots[2] for the benefit of those lots;
2. the shade structures were neither waterproofing membranes nor roofing structures providing protection; and
3. that the “repairs” undertaken by the applicants were upgrades or improvements and not repairs, and if the respondent Body Corporate was liable at all, then it was liable for the reasonable cost of repairs only.

In support of the first argument, the respondent lead evidence that the shade structures were not yet installed at the time titles for the lots were issued in October 2005. In fact, said the respondent Body Corporate, the shade structures were not completed until November 2005. That meant it was the developer, a lot owner, that had installed them, and they were therefore owner improvements.

For the second argument, the respondent relied on a previous decision in Rolling Surf Resort [2012] QBCCMCmr117.  In that decision the adjudicator considered repairs to shade sails, some of which had been erected prior to the community titles scheme being established.  It was held that the shade sails were not roofing structures for s170 of the Accommodation Module; they only provided shade and did not provide substantial protection to the roof top areas from the elements.  As such the shade sails did not constitute a roofing structure providing protection against rain but instead evidenced only a partial intention to provide partial coverage.

As to the third argument, the respondent body corporate relied on an Engineer’s report which concluded that the shade fabric had only been replaced 2 to 4 years before the applicants undertook the repairs in question. The earlier shade cloth replacement  had been at the expense of the body corporate’s insurer (storm damage) and the Engineer’s report noted that the shade fabric had been in good condition at the time the applicant’s repairs were undertaken.  There was no evidence that the structures themselves were in a structurally unsound condition before the applicant’s “repairs” were undertaken. As a result, the reimbursement sought by the applicants ought to be denied, because the only justifiable reimbursement would be for the reasonable cost of the actual repairs required.

Finally, it was submitted by the body corporate that the applicants had gone ahead and made changes to the structures, including the type of shade cloth material, without first discussing it with the committee.  That was not consistent with the applicants assertions that the shade structures were the body corporate’s responsibility.

What did the Adjudicator decide?

In relation to the shade structures, the burning questions addressed by the Adjudicator were:

• Were the shades roofing membranes?
• Were the shades roofing structures providing protection?

The Adjudicator concluded that the answer was ‘no’ to both questions.  Shade sails cannot, even by the dictionary definition, be described as a “membrane” nor can they be characterised as a “roofing structure” providing protection”.  It was therefore not the body corporate’s responsibility to maintain the shade structures. Rather, maintenance was the responsibility of the applicants, as lot owners who have the exclusive enjoyment and use of the shade structures.

Instrumental to these findings was evidence from the developer. The developer had submitted a statutory declaration stating that the product used was a shade cloth material which did not provide full weather protection and that the shade structures were not, and were never intended to be, part of a “roof”.  In fact, the developer’s evidence was that the particular shade cloth had been chosen, precisely because it was not a protective membrane. That was because, the developer said, if the shade material had been a protective membrane (i.e. waterproof) then the shade structures would have been regarded by the local Council as an additional storey on the building! That, in turn, would have contravened the development approval.

Finally, the adjudicator agreed with the body corporate, that even if the repair costs were the body corporate’s responsibility (and they were not), the only justifiable reimbursement would be the “reasonable cost of the actual repairs required”.

What does this mean for you?

Nobody wants to be involved in a dispute.  It is always stressful and can often lead to an unwanted financial burden. It is essential that owners understand their rights and responsibilities and bodies corporate are fully aware of their duties, responsibilities and statutory obligations, including in relation to shade structures.

Litigation can be avoided, or minimised. The first steps are early and active investigation of maintenance issues, followed by obtaining advice from a specialist strata lawyer.

[1] At that stage, it was section 157 of the 2008 Accommodation Module Regulation

[2] and the common property, because parts of the shade structures encroached into the common property

 

This article was contributed by Michael Kleinschmidt, Stratum Legal.

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