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

EXCLUSIVE USE BY-LAW - where an owner sought exclusive use of an area of common property - where their motion failed to achieve a resolution without dissent - whether the sole dissenting vote was unreasonable in the circumstances - whether the motion should be deemed passed.

Act, ss 170, 171, schedule 5 Item 10; Standard Module, ss 192, 193

• [1] This application is about the applicant's request for a grant of exclusive use over an area of common property adjacent to their Lot 5 to enable a deck extension.
• [2] At an extraordinary general meeting (EGM) apparently held in October 2024, the applicant's initial motion seeking exclusive use failed to pass to achieve the required resolution without dissent, with the owners of Lots 8 and 9 voting against it. After contacting the dissenting voters, the applicant secured the future support of the owner of Lot 8. Attempts to discuss the matter with the owner of Lot 9 (the affected person) were unsuccessful. The applicant resubmitted their proposal to the annual general meeting (AGM) held on 4 March 2025. The applicant's motion failed again due to a dissenting vote from the owner of Lot 9.
• [3] The applicant contends that, given the lack of engagement or explanation for their vote, the absence of any impact, and existing exclusive use in the scheme, the dissenting voter's opposition was not based on reasonable grounds and may have been motivated by ill-will.
• [4] The applicant wants their motion passed. The question is whether the opposition to the motion was unreasonable in the circumstances such that the motion should be deemed passed.

• [5] Tamarind Lodge community titles scheme 9342 (Tamarind Lodge) is a 14-lot scheme at Mermaid Waters. The community management statement (CMS) shows the Standard Module applies. The scheme is registered as building units plan 5868.
• [6] The application seeks the following order:

I am seeking an order that the opposition to my motion for a deck extension was unreasonable, and that the motion be treated as passed. I request that the adjudicator grant Exclusive Use of the nominated common property area to me, and approve the relevant changes to the Community Management Statement (CMS) in accordance with the submitted plans.

• [7] An adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or the CMS, or the exercise of rights or powers or performance of duties under the Act or the CMS.[1] I am satisfied I have jurisdiction to determine this matter under the dispute resolution provisions.[2]

• [8] This application was lodged on 14 May 2025.
• [9] The Commissioner invited submissions from the committee, the affected person, and all owners.[3] Only the affected person made a submission, which the applicant responded to.[4]
• [10] The application was referred to department adjudication.[5] I have now investigated the dispute, including reviewing the submitted materials and titles records.[6]

• [11] The owner of Lot 9, the affected person, opposes the application. They submit:
  1. The applicant did not clearly articulate the long-term implications of this arrangement, including the likelihood the common property will never revert to the owners. It is improbable the applicant would agree to terminate the exclusive use in future.
  2. The proposal may negatively impact other owners by reducing available green space, potentially affecting the valuation and marketability of other lots, increasing noise during construction of the deck, and altering views for residents above.
  3. Given the unlikelihood that the common property will be restored for communal use, the applicant should purchase the land and bear all costs associated with this process.
  4. There may be similar requests from others seeking exclusive use to build structures on the common lawn. Owners should be compensated if common land is to be removed.
  5. They notified the body corporate manager that if the applicant proposed purchasing the common property, they would vote in favour of that request.
• [12] The applicant's response to the submission includes:
  1. The motions submitted were clearly worded, accompanied by professionally prepared plans from a surveyor and the precise amendments to the CMS. These documents were circulated to all owners in accordance with the body corporate legislation.
  2. At no point did the dissenting owner raise concerns about the motion's clarity, fairness, or content. Multiple good-faith efforts were made to engage with the owner to discuss the proposal, but no response was received.
  3. The dissenting owner raises speculative concerns. These claims are not supported by evidence or tied to any specific impact on their own lot.
  4. Lot 9 is on the second level at the opposite end of the building from the ground level Lot 5. The proposed deck extension is not visible from or affect Lot 9.
  5. The area is currently unused and inaccessible green space that provides no functional benefit to Lot 9 or the broader community. It is adjacent to the Lot 5 balcony and inaccessible to others without entering their personal space or peering into their lot.
  6. The proposed extension is modest and low-profile. No change to the building's structure or shared services is involved.
  7. The concerns about the long-term nature of exclusive use are speculative. Exclusive use does not transfer ownership and may be revoked or varied by ordinary resolution, with the consent of the affected owner.
  8. The body corporate has no ability to sell common property without a complex and impractical process. Exclusive use is the correct and lawful method for extensions such as this one, and the legislative process was followed.
  9. There has been subsidence in the garden bed and existing patio. Granting exclusive use would allow them to resolve these issues and improve the area at no cost to the body corporate, in a way that has no negative impact on another lot.
  10. There is a clear precedent in the scheme, with Lot 2 directly below Lot 9 granted exclusive use for a nearly identical deck extension. Since the Lot 2 deck was approved in 2017, there has been no issue raised about its use.

• [13] The issue in this application is whether the opposition to the applicant's AGM motion was unreasonable in the circumstances, such that the motion should be deemed as passed.

• [14] The legislation provides for exclusive use by-laws.[7] These are recorded in the CMS and attach to a lot, giving the occupier of the lot exclusive use to the rights and enjoyment of, or other special rights about, a part of common property or a body corporate asset.[8]
• [15] An exclusive use by-law may only attach to a lot, or stop applying to it, if the body corporate passes a resolution without dissent consenting to record a new CMS which either incorporates the exclusive use by-law or omits it.[9] The lot owner who benefits from the by-law must also agree in writing before the resolution is passed or vote personally on the resolution.[10]
• [16] While the body corporate is generally obliged to maintain the common property,[11] maintenance obligations may shift to an owner who benefits from an exclusive use by-law.[12] Unless specified otherwise in an exclusive use by-law, and with some exceptions, an owner benefiting from an exclusive use by-law is taken to be responsible for the maintenance and operating costs for the part of the common property to which the exclusive use by-law applies.[13]

• [17] Tamarind Lodge is a 2-storey building, comprised of 14 lots. Lots 1 to 7 are located on the ground level (Level A) and Lots 8 to 14 are on the upper level (Level B). The survey plan shows that the 7 lots on Level B each include a triangular shaped balcony. However, the corresponding areas below the balconies are not shown the survey plan as part of the ground level lots. Accordingly, the areas on Level A below the balconies are common property.
• [18] Under the current CMS[14] one area of common property has been allocated for exclusive use. Pursuant to By-law 45, the owners of Lot 2 have been granted exclusive use of an area described in schedule E and the attached plan as a balcony. The area is a 5m2 rectangular area adjacent to areas marked 'porch' and 'garden' which are adjacent to Lot 2.
• [19] The applicant's motion proposed recording a new CMS to add By-law 46 to give the owners of Lot 5 a 'balcony area' as identified in schedule E and the attached plan. The plan provided shows a 5m2 area abutting the exterior wall of Lot 5 on one side and the exterior wall of the adjacent Lot 4 on another side. The area is also shown as abutting the edge of a triangular concrete slab labelled 'porch' extending out from the doorway into Lot 5. The porch appears to be below the triangular balcony of Lot 12 above. However, as indicated above, the porch area is common property rather than part of Lot 5.

• [20] From the material submitted, the parties appear to believe that granting exclusive use to the applicant would automatically allow for the construction of a deck on the exclusive use area. That is not correct. A grant of exclusive use rights over an area of common property does not necessarily allow the lot owner to make improvements to the designated area.
• [21] Unless it is specified otherwise in the exclusive use by-law, a lot owner must obtain body corporate approval to make an improvement to the area of common property to which the exclusive use by-law applies.[15] If the value of the improvement is over $3,000, that approval must be given by way of an ordinary resolution at a general meeting.[16]
• [22] In this case, the proposed By-law 46 does not purport to authorise the applicant to construct a deck or make any other improvement to the proposed exclusive use area. And while the explanatory note accompanying the AGM motion indicates the applicant's intended use for the area, the motion itself solely seeks the exclusive use allocation. The motion does not specifically seek authority to construct a deck on the common property.
• [23] Consequently, if exclusive use of the area was granted to the applicant, separate body corporate authorisations would be needed for the applicant to construct a deck or to make any other improvements to the area.

• [24] The substantive issue is whether the outcome of the applicant's motion should be overturned.
• [25] Section 276 of the Act provides that an adjudicator may make an order that is just and equitable in the circumstances to resolve a dispute about a claimed or anticipated contravention of the Act or CMS,[17] or the exercise of rights or powers, or the performance of duties, under the Act or CMS.[18] Schedule 5 of the Act sets out, without limitation, various orders an adjudicator may make. Relevantly, item 10 of schedule 5 of the Act provides that an adjudicator can make an order giving effect to a motion as proposed, or a variation of a motion as proposed, if satisfied a motion requiring a resolution without dissent was not passed because of opposition that in the circumstances is unreasonable.
• [26] In considering the appeal of an adjudication regarding a proposed grant of exclusive use, the High Court determined that a dispute about a failed motion requiring a resolution without dissent should be construed as concerning the exercise of rights or powers under the Act.[19] The High Court determined that the appropriate question was not whether the body corporate's decision was reasonable pursuant to section 94(2) of the Act, but rather, whether the votes of the dissenting lot owners were unreasonable.[20]
• [27] Regarding the test for unreasonable opposition in such cases, the High Court said:[21]

It is no light thing to conclude that opposition by a lot owner to a resolution is unreasonable where adoption of the resolution will have the effect of: appropriating part of the common property to the exclusive use of the owner of another lot, for no return to the body corporate or the other lot owners; altering the features of the common property which it exhibited at the time an objecting lot owner acquired his or her lot; and potentially creating a risk of interference with the tranquillity or privacy of an objecting lot owner.

• [28] The High Court accepted that the task for an adjudicator was to identify a ground of opposition and inquire whether that ground was a rational basis for opposition.[22] This is to be considered in the context of the right to vote as a proprietary right of lot owners.[23]

• [29] Having regard to the High Court's decision, I will consider the reasons given by the affected person for their dissenting vote. As the proponent of the motion, the applicant was responsible for convincing owners to vote for it. In this dispute the applicant bears the onus of demonstrating that the grounds of opposition were unreasonable in the circumstances.
• [30] I note that in considering the opposition to the applicant's motion, I am not tasked with striking a reasonable balance between competing positions.[24] Rather, I am considering whether the opposition by the owner of Lot 9 to the passing of the resolution was unreasonable.[25] Accordingly, the application must be unsuccessful if even one of the identified grounds of opposition is found not to have been unreasonable in the circumstances.

• [31] The owner of Lot 9 expressed concern that the area was unlikely to revert back to general common property once exclusive use was granted. The applicant argues this is 'speculative', and that exclusive use does not transfer ownership. The applicant submits that exclusive use can be revoked or varied by ordinary resolution with the consent of the affected owner.
• [32] The applicant is incorrect. As outlined above, a resolution without dissent (not just an ordinary resolution) is required to remove a grant of exclusive use and the owner benefiting from the grant must consent to it or vote on the motion.
• [33] While exclusive use is not permanent and does not transfer ownership, removing a grant of exclusive use is an undeniably difficult task. An owner benefiting from an exclusive use by-law would likely be reluctant to relinquish the advantage without inducement or compensation, particularly if they have then built a structure on the exclusive use area.
• [34] In the circumstances, the applicant has not demonstrated that the difficulty of ever reversing a grant of exclusive use was not a relevant consideration for the dissenting voter.

• [35] A further ground of opposition advanced is the potentially negative impact of reducing the available green space, with specific reference to the marketability and valuation of other lots in the scheme. The applicant says the area sought is currently unused and inaccessible green space that provides no functional benefit to Lot 9 or the broader community asserts.
• [36] Neither the owner of Lot 9 nor the applicant have provided any evidence for me to consider regarding the potential impact on the marketability and valuation of other lots. However, as my decision does not turn on that issue, I did not consider it necessary to investigate it further.
• [37] Regardless of its current usage, it does not appear from the survey plan that the area in question is actually inaccessible by others. But it appears the applicant considers the proximity of the area to Lot 5 and their personal space means it is 'not practically accessible or usable by others'. Regarding this type of argument, the High Court observed that:[26]

It was also an error on the part of the Court of Appeal to proceed on the basis that it was a consideration tending to show that the opposition to the proposed modification was unreasonable that the common property airspace required to give effect to the proposed modification was of no use to anyone but the first respondent. A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person's material advantage.

• [38] The applicant may be right that any impact from a grant of exclusive use on the marketability and valuation of other lots is speculative and unsubstantiated. But the applicant has not shown that the loss of available common property was not a relevant consideration for the owner of Lot 9. I am not convinced this ground of opposition was unreasonable in the circumstances.

• [39] The owner of Lot 9 submitted that any construction could lead to increased noise levels and altered views for residents above. The applicant dismisses these concerns as speculative. The applicant asserts that the proposed deck extension is not visible from and does it affect, Lot 9. The applicant further contends that Lot 2 was granted exclusive use for a nearly identical deck extension and that since its approval in 2017, no complaints or noise issues have been raised with the body corporate regarding its use.
• [40] The objections appear relate to the impact of the construction and use of a deck extension, not the exclusive use grant itself. As neither the proposed By-law 46 nor the AGM motion would authorise the applicant to install a deck, the applicant would need separate approval for that. So, while the owner of Lot 9 may have concerns about a deck in the area, that is a separate matter to the grant of exclusive use which is the subject of this application.

• [41] The owner of Lot 9 suggests the applicant should purchase the land and bear all associated costs, and they would vote in favour of a purchase of the common property. They further said owners should be compensated if similar requests are made seeking grants of exclusive use.

• [42] The applicant responds that the body corporate has no ability to sell common property directly without a complex and impractical process involving converting land to freehold and obtaining government consent. The applicant argues exclusive use is the correct method for minor and low impact extensions such as this. The applicant also offered to bear all reasonable costs incurred by the body corporate, including registering a new CMS.[27]
• [43] A grant of exclusive use is not the only avenue open to an owner to obtain the sole use of an area of common property. The legislation also provides that the body corporate can sell part of the common property, or grant a lease or license over it.[28] Each option would involve different processes. But as with a grant of exclusive use, the sale of common property or a lease or licence of more than 3 years must be authorised by a resolution without dissent.
• [44] However, it is not the case that compensation or remuneration could only attach to a sale, or a lease or licence. It is common for an owner seeking exclusive use of common property to offer compensation to the body corporate by way of an upfront payment or ongoing amount. This is expressly contemplated in the legislation, which provides for the possible inclusion of conditions under the exclusive use by-law, including payments to the body corporate or other owners.[29] The fact that a grant of exclusive use is a lesser interest than a freehold interest may affect the value of any compensation.[30]
• [45] Significantly, on the point of compensation in such cases, the High Court has said:[31]

A person with a property interest may reasonably insist on conserving that interest even if it is not presently being employed to that person's material advantage. That is so, if for no other reason than that he or she may reasonably expect to be offered something in return for agreement to part with it to another lot owner..

• [46] The owner of lot 9 is entitled to view the proposal through the lens of their own proprietary interests. The applicant has not satisfied me that it was unreasonable to want the body corporate to receive compensation in exchange for the loss of the use of common property.

• [47] Although not a specific ground of opposition, I will comment on the applicant's suggestion that the owner of Lot 9 may have been motivated by ill-will or a desire to obstruct. The High Court has said that:

Opposition prompted by spite, or ill-will, or a desire for attention, may be seen to be unreasonable in the circumstances of a particular case.[32]

• [48] No evidence has been provided here that the affected person was motivated by ill-will. The mere lack of engagement with the applicant about the proposal, does not in itself evidence such a contention. Moreover, the owner of Lot 9 was not required to act sympathetically or altruistically towards the applicant's interests at the expense of their own property interests.[33]
• [49] I also note the approval for Lot 2's exclusive use area was obtained before the current ownership of Lot 9. So there does not appear to be an argument that the affected person voted in favour of exclusive use for Lot 2 but against it for the applicant.

• [50] For the reasons outlined, I am not satisfied the applicant has established that the opposition to their motion at the AGM on 4 March 2025 was unreasonable in the circumstances. It follows that I have dismissed the application.
• [51] This order does not prevent the applicant from submitting a further proposal to the body corporate seeking exclusive use of the relevant area or an alternative area in a manner that addresses the dissenting voter's concerns. The owner of Lot 9 indicated they would support a purchase of the property. That suggests they may be amenable to a proposal that included compensation to the body corporate in exchange for the grant of exclusive use.

[2] Sections 227, 228, 276 and schedule 5 of the Act

[3] Section 243 of the Act

[4] Sections 246 and 244 of the Act

[5] Section 248 of the Act

[7] Sections 170 to 177 of the Act

[8] Section 170 of the Act

[9] Sections 62 and 171(2)(a) and (b) of the Act

[10] Section 171(2)(a) and (b) of the Act

[11] Section 180 of the Standard Module

[12] Section 192 of the Standard Module and 173(b) of the Act

[13] Section 192(2) of the Standard Module

[14] Recorded 13 March 2018, Titles dealing number 718630143

[15] Section 193 of the Standard Module

[16] Section 193(4) of the Standard Module

[20] Ainsworth v Albrecht [2016] HCA 40 at 27

[21] Ainsworth v Albrecht [2016] HCA 40 at 55

[22] Ainsworth v Albrecht [2016] HCA 40 at 56-57

[23] Ainsworth v Albrecht [2016] HCA 40 at 58

[24] Ainsworth v Albrecht [2016] HCA 40 at 48

[25] Ainsworth v Albrecht [2016] HCA 40 at 48

[26] Ainsworth v Albrecht [2016] HCA 40 at 62

[27] Section 63(3) of the Act

[28] Section 184 of the Standard Module

[29] Section 192(1) of the Standard Module and section 173(a) of the Act

[30] Nexus Towers [2024] QBCCMCmr 12 at 88 citing Pine Trees Resort [2011] QBCCMCmr 181

[31] Ainsworth v Albrecht [2016] HCA 40 at 62.

[32] Ainsworth v Albrecht [2016] HCA 40 at 63.

[33] Ainsworth v Albrecht [2016] HCA 40 at 57 and 60