20181085-ASC11 - North Point Brisbane [2012] QBCCMCmr 355

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              Grant of exclusive use
         [99] Sections 170-177 of the Act provide for exclusive use by-laws. A body corporate is entitled to
              grant exclusive use of (or other special rights about) common property to a lot owner through
              an exclusive use by-law recorded in the CMS. Exclusive use necessarily involves the right to
              use the allocated area of common property to the exclusion of all other owners and occupiers.
              Pursuant to section 129 of the Commercial Module, an exclusive use by-law can impose
              conditions, including conditions regarding payments to the body corporate or lot owners.
         [100]   Providing a grant is appropriately approved in a general meeting, there is no restriction on how
                 and to whom a body corporate can choose to allocate common property for exclusive use. A
                 body corporate is not required, for example, to equally distribute allocations amongst owners
                 based on their lot ownership, lot entitlements or any other basis.
         [101]   At North Point, the allocation of area of common property for the purpose of exclusive use car
                 parking is outlined in By-law 30. The current CMS was recorded in May 2005 but this by-law
                 appears to have remained unchanged since the CMS recorded in May 2002. Moreover,
                 exclusive use car parking allocations have existed since March 1987. Some 21 of QPCU’s 35
                 lots have been allocated exclusive use areas for car parking and storage. The most significant
                 allocation is to Lot 3 which has been allocated large areas of one of the car park levels. Titles
                 records show those areas were allocated to Lot 3 since at least as early as 1994.
         [102]   The applicants appear to query the validity of the grant of exclusive use. However that is a
                 question that could only be the subject of an order sought against the Body Corporate, who
                 passed the resolutions to grant exclusive use. These allocations have existed for some time
                 without apparent objection, and the applicants do not outline a clear legal objection to the
                 original Body Corporate decisions. Therefore there is no basis for me to further investigate that
                 issue. Moreover, on its face I see no reason why the allocation of exclusive use of common
                 property to QPCU and other lot owners for the purpose of car parking is not entirely valid.
         [103]   The applicants suggest the by-law is prohibited by section 177 of the Act, but that section only
                 prohibits exclusive use over utility infrastructure. A car space is not utility infrastructure 24. The
                 applicants also suggest By-law 30 does not comply with the legislation in place when exclusive
                 use was first granted. I do not understand the applicant’s argument but see no reason why By-
                 law 30 does not comply with the requirements under the previous and current legislation.
         [104]   Comments are also made that the allocation of exclusive use of this scale should result in an
                 adjustment to lot entitlements. The allocations have clearly existed for a considerable time and
                 it is not evident that they are not actually reflected in the current lot entitlements. However,
                 even if they are not, I have no jurisdiction under the Act to evaluate or adjust the lot
                 entitlements. The applicants are at liberty to submit a motion to a general meeting for an
                 adjustment to the lot entitlements if they consider that the current lot entitlements schedule
                 does not comply with the legislative requirements in that regard. 25
               Income from an exclusive use area
         [105] The applicants believe QPCU is not entitled to rent or earn income from its exclusive use area
               without the specific approval of the Body Corporate or an express provision in the by-law. I do
               not agree. The applicants have not identified to any legislative provision that imposes such a
               restriction on exclusive use rights and to my knowledge there is no such restriction.
         [106]   Section 35(3) of the Act provides that an owner’s interest in a lot is inseparable from their
                 interest in the common property, and the examples note that an owner cannot deal with or
                 dispose of their interest in common property. However this section is referring to an owner’s
                 interest in the entire common property of the scheme as a tenant in common, rather than the
                 rights granted under the exclusive use by-law. An exclusive use by-law grants a statutory right
                 rather than a common law interest in land.26


         24
            Note the definitions of ‘utility infrastructure’ and ‘utility service’ in Schedule 6 of the Act.
         25
            Section 46 to 51C of the Act
         26
            Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001] QCA 306


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Grant of exclusive use

19] Sections 170-177 of the Act provide for exclusive use by-laws. A body corporate is entitled to
grant exclusive use of (or other special rights about) common property to a lot owner through
an exclusive use by-law recorded in the CMS. Exclusive use necessarily involves the right to
use the allocated area of common property to the exclusion of all other owners and occupiers.
Pursuant to section 129 of the Commercial Module, an exclusive use by-law can impose
conditions, including conditions regarding payments to the body corporate or lot owners.

(109) Providing a grant is appropriately approved in a general meeting, there is no restriction on how
and to whom a body corporate can choose to allocate common property for exclusive use. A
body corporate is not required, for example, to equally distribute allocations amongst owners
based on their lot ownership, lot entitlements or any other basis.

t1o1) At North Point, the allocation of area of common property for the purpose of exclusive use car
parking is outlined in By-law 30. The current CMS was recorded in May 2005 but this by-law
appears to have remained unchanged since the CMS recorded in May 2002. Moreover,
exclusive use car parking allocations have existed since March 1987. Some 21 of QPCU's 35
lots have been allocated exclusive use areas for car parking and storage. The most significant
allocation is to Lot 3 which has been allocated large areas of one of the car park levels. Titles
records show those areas were allocated to Lot 3 since at least as early as 1994.

{102} The applicants appear to query the validity of the grant of exclusive use. However that is a
question that could only be the subject of an order sought against the Body Corporate, who
passed the resolutions to grant exclusive use. These allocations have existed for some time
without apparent objection, and the applicants do not outline a clear legal objection to the
original Body Corporate decisions. Therefore there is no basis for me to further investigate that
issue. Moreover, on its face | see no reason why the allocation of exclusive use of common
property to QPCU and other lot owners for the purpose of car parking is not entirely valid.

(103) The applicants suggest the by-law is prohibited by section 177 of the Act, but that section only
prohibits exclusive use over utility infrastructure. A car space is not utility infrastructure”. The
applicants also suggest By-law 30 does not comply with the legislation in place when exclusive
use was first granted. | do not understand the applicant's argument but see no reason why By-
law 30 does not comply with the requirements under the previous and current legislation.

{104) Comments are also made that the allocation of exclusive use of this scale should result in an
adjustment to lot entitlements. The allocations have clearly existed for a considerable time and
it is not evident that they are not actually reflected in the current lot entitlements. However,
even if they are not, | have no jurisdiction under the Act to evaluate or adjust the lot
entitlements. The applicants are at liberty to submit a motion to a general meeting for-an
adjustment to the lot entitlements if they consider that the current lot entitlements schedule
does not comply with the legislative requirements in that regard.”°

Income from an exclusive use area

(105) The applicants believe QPCU is not entitled to rent or earn income from its exclusive use area
without the specific approval of the Body Corporate or an express provision in the by-law. | do
not agree. The applicants have not identified to any legislative provision that imposes such a
restriction on exclusive use rights and to my knowledge there is no such restriction.

(106) Section 35(3) of the Act provides that an owner's interest in a lot is inseparable from their
interest in the common property, and the examples note that an owner cannot deal with or
dispose of their interest in common property. However this section is referring to an owner's
interest in the entire common property of the scheme as a tenant in common, rather than the
rights granted under the exclusive use by-law. An exclusive use by-law grants a statutory right
rather than a common law interest in land.”°

4 Note the definitions of ‘utility infrastructure’ and ‘utility service’ in Schedule 6 of the Act.
5 Section 46 to 51C of the Act

26 Independent Finance Group Pty Ltd v Mytan Pty Ltd & Anor [2001] QCA 306

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