Attwood Marshall Lawyers Partner and NSW Law Society Accredited Specialist in Dispute Resolution, Charles Lethbridge, recently featured on A Current Affair to discuss a case where owners of waterfront homes in a luxury Gold Coast estate received letters threatening legal action from the body corporate stating that it now “owns” the waterway and their pontoons were an “unlawful trespass” on the scheme’s common property.
Homeowners caught off-guard
Residents that live at Lake Serenity at Helensvale on the Gold Coast, are involved in a dispute with the body corporate of a nearby gated community. Many of the homeowners purchased their properties in the past decade and were attracted to the area because it was a body corporate-free location. However, three months ago, the group received letters demanding payment for their pontoons.
The letters were sent by lawyers acting on behalf of body corporate Oyster Cove Waterfront, the body corporate servicing a nearby gated community. They demanded that the homeowners either have their pontoons professionally removed or they would need to apply to the body corporate to gain approval for their pontoons and agree to pay annual fees of $900 plus GST. Residents were given just four weeks to comply, or they would subsequently face court proceedings seeking damages for trespass, the removal of the pontoon, interest, and costs.
Brian McNicholas, a Serenity Boulevard resident who has lived on the street for four years, said if he had known it would mean becoming involved with a body corporate, he would not have purchased his property.
“I still have all the ads from when I bought the house, saying it is waterfront and contains a pontoon. It also said no body corporate. I’ve bought a lot of property in Queensland and I would not move into a body corporate,” he said.
Mr McNicholas further explained that the body corporate had informed him he was on a “dry block”, even though his home fronted the lake and was sold with a pontoon.
“I rang them up and said, ‘I think you’ve got the wrong house, wrong address, wrong person’. I said, ‘I’m not on a dry block, I live on the water.’ And he said, ‘no you don’t’.”
“That’s when the letters started.”
Igor Grabzyk also lives at the lake and said plans for his home dating back to 1996 showed the presence of a pontoon which is well before the nearby body corporate was established.
Neighbour Nikki Dunlop owns three properties there and was also attracted to the body corporate-free location.
Now she and those who own property outside the nearby gated estates and body corporate, have been instructed that they must pay for approval of their already existing pontoons as well as a yearly lease fee.
Another resident, Keith Stuart, said residents had not been given a justification for the almost $1000-a-year fees demanded by the body corporate to allow them to keep their pontoons.
“What are they doing to maintain the lake that demands $1000 a year,” he said.
“… If they are asking for fees, surely they should be able to produce costs.”
The properties at the centre of the dispute were constructed approximately 20 years ago, at which time Lake Serenity was encircled by land and over time gated communities were established. The residents believe the demand for fees relate to the creation of a $5 million shipping lock, which provides access to the Gold Coast waterways and was installed by the neighbouring body corporate in 2018. It’s rare for a waterway like this to be privately owned, most waterways in the Gold Coast or south-east Queensland are owned by the state or the council.
A frustrated Kevin Fellows purchased in 2018 and assumed the lake was council owned because nothing came up in legal checks.
“Normally the searching of the titles would reveal any encumbrances over the title, but none have been registered,” he said.
In a statement to A Current Affair the Oyster Cove Waterfront Community Titles Scheme maintains: “We have 450 resident Lot Owners in Oyster Cove – Serenity communities, all of whom are currently subsidizing the lifestyle and waterways access by six non-Scheme freehold Lots which have pontoons on our privately owned property. The cost to manage and maintain Lake Serenity waterways and shipping lock must be equally shared.”
Someone has been misinformed or misled, and whether that someone is the disgruntled owners or the body corporate remains to be seen. Both parties to the dispute have competing claims.
Body Corporate Disputes
Being involved in a body corporate dispute can be an extremely stressful experience and disrupt your life, which can impact you emotionally and financially.
If you are involved in a dispute with a body corporate, there are several steps you can follow on a path to resolution.
One should always try to resolve the matter with the body corporate committee or any other involved parties first through negotiation or mediation, otherwise referred to as internal dispute resolution. Trying to work it out amongst yourselves prior to making a formal dispute resolution application will be the quickest and most cost-effective way to move forward without the matter escalating further. Ensure that you communicate in writing with the parties involved in case you need evidence of these negotiations at a later stage.
If you have been unsuccessful in resolving the dispute through the internal dispute resolution process, you can then apply for conciliation, where an independent person who understands body corporate law assists you and the other parties in resolving the issue.
If you have been unable to reach an agreement through conciliation, adjudication is the next step to take, which is a more formal process and involves an adjudicator deciding on an outcome, with reference to an adjudication application and written submission by all parties involved in the dispute.
In the Practice Directions issued by The Office of the Commissioner for Body Corporate and Community Management, there are clear processes and rules outlined explaining how body corporate disputes should be handled. This process involves collecting evidence of a dispute, fulfilling internal dispute resolution obligations, outlining the standing of all parties, and providing further information on the procedures and content requirements for dispute resolution applications.
When you seek legal advice early on you can better understand your rights and obligations under a body corporate scheme. An experienced dispute resolution lawyer will provide you with practical advice and solutions so that you can deal with the problem promptly and you can resolve the matter and move on with your life.
Attwood Marshall Lawyers – experts in resolving body corporate disputes
Attwood Marshall Lawyers have a dedicated commercial litigation and dispute resolution team who are well-versed at assisting homeowners and body corporate committees in resolving disputes that arise. Equipped with a Law Society Dispute Resolution Accredited Specialist, we have an enviable track record of assisting our clients throughout Queensland and New South Wales to achieve satisfactory resolutions without having to embark upon the expensive, lengthy, and uncertain court process.
Litigation in any form is a stressful and costly exercise, especially when the parties are deeply entrenched in their own positions. We have found that bringing the parties together by way of an informal settlement conference with assistance from lawyers, or mediation with an experienced and independent mediator, are extremely efficient and successful processes for resolving body corporate disputes.
We will support you throughout the process and keep you updated every step of the way, and hopefully take away the stress in your life.
If you are involved in a body corporate dispute, please contact our Department Manager, Amanda Heather, on direct line 07 5506 8245, email aheather@attwoodmarshall.com.au or free call 1800 621 071 to find out where you stand.
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