Body Corporate and Community Management (Accommodation Module) Regulation 2020 (Accommodation Module)

MAINTENANCE - where the applicant owner's vehicle sustained mould damage while parked in the basement car-space - whether the body corporate breached its maintenance obligation resulting in the damage - whether the body corporate is liable for the costs incurred by the applicant.

Act, s281; Accommodation Module, ss 170(1), 182(2)

• [1] Alouette Residences is a community titles scheme comprising 57 lots and common property. This matter relates to mould and moisture concerns in the building's basement carpark.
• [2] The applicant is a lot owner at Alouette Residences. He has brought this application against the body corporate for failing to maintain the carpark which he says has resulted in mould damage to his vehicle and restricted him from using his car space. He says the body corporate's failure to act has forced him to relocate his vehicles due to unsafe conditions, to incur cleaning and storage costs to mitigate damage, and to take independent steps to assess the contamination level.
• [3] The applicant obtained a Mould and Moisture Assessment Report (the Mould Report),[1] which identifies excessive humidity levels in the carpark and confirms the presence of unsafe levels of mould spores.
• [4] The applicant seeks reimbursement of $9,393.26 for costs he incurred as follows:
  • The Mould Report - $2,024.00
  • Professional mould remediation for the applicant's vehicle - $3,025.00
  • Vehicle storage and relocation costs - $2,400.00
  • Garage mould clean - $1,194.00
  • Mould cleaning equipment purchases - $190.27
  • Car cover - $54.99
  • Car carpet - $505.00
• [5] He also seeks that the body corporate:
  1. engage a qualified mould specialist to conduct a further assessment and to act upon those findings;
  2. take preventative measures including ensuring the garage exhaust fan system operates daily to regulate humidity and prevent mould growth; and
  3. notify residents about the mould contamination and install warning signage in the carpark.
• [6] The primary issue to be determined is whether the body corporate breached its statutory duty to maintain, resulting in the applicant's claimed losses. I will also consider whether there is any basis to order the body corporate to take further steps to address the mould and humidity issues in the basement.

• [7] Prior to lodgement of the current adjudication application, the parties attempted department conciliation. A conciliation agreement was reached but unfortunately, the dispute remained unresolved. The applicant then applied for adjudication.
• [8] I am satisfied the matter falls within the legislative dispute resolution provisions.[2] An adjudicator may make an order to resolve a dispute in the context of a community title scheme between a lot owner and the body corporate about a claimed or anticipated contravention of the Act or the CMS; or the exercise of rights or powers, or the performance of duties, under the Act or CMS.[3]
• [9] The Commissioner invited submissions on the application from the committee, the named affected persons, and all lot owners in the scheme. One lot owner made a submission. The applicant inspected the submission and made a reply. The Commissioner then referred the application to department adjudication.

• [10] The applicant asserts that the carpark is common property and thus it is the body corporate's obligation to maintain it and to ensure that it does not pose a health or safety risk to residents and visitors. He claims that the damage and costs he incurred arose from the body corporate's failure to maintain the carpark.

• [11] Section 281 of the Act provides a remedy for an applicant who has suffered damage to property due to another party's contravention of the Act or the CMS. An adjudicator may order the person who the adjudicator believes, on reasonable grounds, to be responsible for the contravention, to repair the damaged property, or to reimburse the applicant for repairs carried out to the property. The following example is provided:

A waterproofing membrane in the roof of a building in the scheme leaks and there is damage to wallpaper and carpets in a lot included in the scheme. The membrane is part of the common property and the leak results from a failure on the part of the body corporate to maintain it in good order and condition. The adjudicator could order the body corporate to have the damage repaired or to pay an appropriate amount as reimbursement for amounts incurred by the owner in repairing the property.

• [12] It is therefore necessary to determine whether the damage suffered by the applicant in this case was because of a contravention of the Act or the CMS and if so, whether there are reasonable grounds to indicate that the respondent body corporate was responsible for the contravention.

• [13] The body corporate must maintain common property in good condition[4], while a lot owner is responsible for maintaining their lot.[5]
• [14] I have reviewed the CMS for Alouette Residences. The applicant's lot (Lot 504) has been allocated 2 exclusive use areas for parking - C120 &121. The area in question where the applicant's vehicle was parked is within the applicant's exclusive use car space.
• [15] By-law 48 provides as follows:

The Owner of each Lot identified in Schedule E of this Community Management Statement has exclusive use of the area of Common Property consisting of the carpark space(s) as allocated in Schedule E of this Community Management Statement for carparking purposes. The Owner of the relevant Lot shall be responsible to clean and maintain the exclusive use area except that the Body Corporate will, using the services of a service contractor if it so elects, provide for the whole of the carpark area to be cleaned by hosing or sweeping on a regular basis.

• [16] An exclusive use by-law is taken, in the absence of other specific provision in the by-law for maintenance and operating costs, to make the owner of the lot to whom exclusive use rights are given, responsible for the maintenance of and operating costs for the part of the common property to which the exclusive use by-law applies.[6]
• [17] Both section 182(2) of the Accommodation Module and by-law 48 make it clear that it is not the body corporate that is responsible for maintaining the exclusive use car space; it is the applicant as the owner of the lot who is responsible. The only exception is that the body corporate will provide for the whole of the carpark area to be cleaned by hosing or sweeping on a regular basis. There is no suggestion that a failure to hose or sweep the carpark on a regular basis is what led to the mould contamination claimed by the applicant.
• [18] Prima facie, the body corporate has no obligation to maintain the applicant's car space and is therefore not responsible for any damage or loss arising from any lack of maintenance in that car space. However, aside from the areas allocated for exclusive use, the carpark as a whole is common property that the body corporate must maintain in good condition. The applicant seems to suggest that as part of the body corporate's obligation to maintain, it has a duty to ensure the air quality in the basement does not pose a health or safety risk to residents. He says the Mould Report confirms the presence of unsafe levels of mould spores which poses a serious health risk, particularly to those with asthma, allergies and other respiratory conditions.
• [19] I have reviewed the submitted Mould Report. Amongst other things, it identifies that there were:
  • extremely high levels of Aspergillus/Penicillium-like spores in the air samples;
  • exceptionally high concentrations of fungal hyphae and Aspergillus/Penicillium-like spores in the surface samples of the car seat;
  • substantial bacterial growth in the sampling of the garage wall
• [20] The Mould Report states that due to the substantially heightened levels of contamination found in the air samples, it is highly advised that individuals entering the garage areas wear a minimum of a P2 respirator. The report concludes that the presence of visible mould on stored contents and its impact on the car interior suggests prolonged elevated relative humidity levels within the carpark. Based on the findings, the report suggests remediation works to the affected areas, as well as investigation and rectification works to address any moisture ingress issues. To effectively minimise the risk of recurring issues, the report recommends implementing moisture control measures such as proper ventilation of the carpark.
• [21] I accept the findings of the Mould Report however, the mere presence of mould and high humidity levels does not necessarily constitute a maintenance failure on the part of the body corporate. The area in question is a basement car parking space which will inherently have limits on its suitable uses. I note the applicant has 2 vehicles. I understand the one that was affected by mould is a 1971 Valiant Chrysler which is stored in the carpark as a "collector car". It does not appear that the applicant's other vehicle, which he uses on a daily basis has been affected. Given the conditions in a basement carpark, particularly during more humid weather, it would be sensible for owners to look after their own property by taking steps to reduce the likelihood of mould growth. Quite arguably, the long-term storage of an old collector vehicle in the basement carpark may make it more susceptible to mould growth. There is no evidence of other residents' vehicles being affected by mould. A submission was made by another owner in the scheme who says they have been in the property since November 2023. They say they also park their car on the same level in the basement but have never experienced mould in their car. In reply, the applicant says mould is not always visible but that a report would indicate their presence on surfaces and in the air. As seen in the Mould Report, the applicant says airborne mould is widespread in the basement carpark, but its level varies with each car space location. While the body corporate has an obligation to maintain the carpark in good condition, which could extend to maintaining the condition of the airspace, the facts of this case are not sufficient for me to find that the body corporate failed to do so in this instance.
• [22] I note the applicant referred to the decision in Waterline at Oceanside[7]. There, the adjudicator was satisfied the damage to the paintwork of the applicant's car was sustained because of the body corporate's failure to maintain a common property water pipe that leaked onto the owner's car. In contrast here, I am not satisfied there is evidence that the body corporate has failed to carry out maintenance resulting in the claimed damage.
• [23] Accordingly, the claim under section 281 must fail.

• [24] The applicant submits that the expert reports confirm that the exhaust system in the basement must be operated daily to mitigate further contamination. He says the body corporate must be ordered to maintain and operate the ventilation system in compliance with Queensland building regulations. As I have not found the body corporate to be in breach of its maintenance duties, I see no basis to order the body corporate to take the further rectification and preventative steps sought by the applicant. Further, any claim about the body corporate's obligations under the building or health and safety regulations is beyond the scope of this application.
• [25] I do note however from the submitted minutes of a committee meeting dated 10 December 2024 that the ventilation system is now being run several times a day for extended periods and that this appears to have helped in lowering humidity. The minutes record that the committee discussed that mould testing of the carpark should now occur since the ventilation has been increased, and that a quote would be obtained and considered in due course. While I have not found the body corporate to have breached its maintenance obligations in this instance, it may be reasonable for the body corporate to ensure it follows through with this step of carrying out mould testing if it has not already done so.
• [26] Finally, the applicant submits that the body corporate has not met the terms of the conciliation agreement and seeks an order to enforce the agreement. Generally speaking, conciliation agreements are commonly understood to be 'good will agreements'. Unlike an adjudicator's order which can be enforced in a court of law, there is no specific provision in the legislation regarding the enforceability of a conciliation agreement. While the aim of conciliation is for the parties to come to a mutual agreement, at times for various reasons, the dispute remains unresolved. In that situation, the purpose of an adjudication application is not to enforce what was agreed upon at conciliation. Rather, the onus is on the applicant to prove that there has been some contravention of the body corporate legislation to warrant the orders sought.

• [27] In order for the applicant to successfully claim for reimbursement under section 281 of the Act, I must be satisfied that the damage suffered was a result of the body corporate's contravention of the Act or the CMS. On the facts of this case, I am not satisfied there was such a breach.
• [28] The application is therefore dismissed.

[1] The report and testing was conducted by IECL Indoor Environmental Consulting and Labs

[2] Sections 227 and 228 of the Act

[4] Section 170(1) of the Accommodation Module

[5] Section 201(3) of the Accommodation Module

[6] Section 182(2) of the Accommodation Module

[7] [2021] QBCCMCmr 44