QLD: Q&A Duties of a Building Manager

I currently clean from 5 am to 7 am. The pool and BBQ areas are open to occupiers from 7 am to 10 pm. So, I do all the work I can outside those hours to better manage my workplace health and safety obligations.

My work does not disturb anyone or create noise or security issues.

The committee sent me an email stating, “Effective immediately: you are not allowed to work inside the estate before 7 am and after 5 pm.

The contract contains no clause dictating when I can and can’t work.

Answer: The simple answer to this is ‘no’ subject to the terms of the agreement.

The simple answer to this is ‘no’ subject to the terms of the agreement. A caretaker’s hours are governed by the agreement with the body corporate. If that doesn’t dictate hours, then the roles required by the agreement need to be performed at times that the caretaker decides, with the caveat that (say) pressure washing footpaths at 1 am wouldn’t be sensible.

Most caretaking agreements do allow a body corporate to provide reasonable directions about the duties, but off the cuff I don’t see that it would be a reasonable direction to start your job at 7 am when it could be started at 5 am and not interrupt residents, especially in the summer heat!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #678.

Question: Our caretaker has requested written confirmation that they are volunteering when performing extra duties not covered by their agreement. Will this cover them as a volunteer under the OC’s insurance?

Our onsite caretaker, who has a signed caretaker agreement with the owners corporation, sometimes performs additional tasks not specified in the agreement. They have requested written confirmation from the owners corporation stating they are volunteering for these extra duties. Will this provide the caretaker with coverage as a volunteer under the owners corporation’s insurance policy?

Answer: There is a strong possibility the insurer would scrutinise the role of the caretaker in line with the contract for services they provide.

The caretaker would have to meet the definition of a volunteer under the policy conditions.

There is a strong possibility the insurer would scrutinise the role of the caretaker in line with the contract for services they provide.

If I was the caretaker, I wouldn’t rely on the strata policy for cover. I would maintain a public liability policy to ensure there is adequate cover in the event of a claim.

Tyrone Shandiman Strata Insurance Solutions E: tshandiman@iaa.net.au P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #670.

Question: Our body corporate would like to conduct a time and motion study on the caretaker. As they are within the contract term and the agreement does not specify hours worked, is the caretaker bound to contribute to the investigation or any findings?

Our caretaker’s agreement was established and agreed upon 10 years ago by the previous caretaker and the body corporate. The agreement contains no specified office or working hours, and the remuneration appears to be increasing and becoming the most significant outgoing expense. The body corporate feels that the remuneration does not align with the actual effort expended, given that the caretaker seems to allocate limited working hours each day to perform duties. However, the caretaker is fulfilling their responsibilities per the contractual agreement. The performance may not be exceptional, but it meets the requirements outlined in the contract.

The body corporate wants to discuss the agreement with the caretaker, possibly via a time and motion study or by employing a strata expert to evaluate the caretaker agreement. The goal is to determine whether the remuneration is fair. At this stage, the body corporate is considering a discussion with the caretaker involving an expert who specialises in contract review or time and motion studies.

Does the caretaker have an obligation to answer all questions from the expert regarding questions about his time allocation for work, etc? Could the caretaker refuse to share his work records, given that there is no contractual obligation to do so? If the caretaker does not agree to any changes, then regardless of the results of any study, can the contract be altered?

Answer: There is no obligation on anyone to agree to do something outside of the managing agency agreement.

The starting point for this is that the management rights agreement is a contract. As such, it is binding on both parties to it in accordance with its terms and a party is only obliged to do what the contract requires of it. So there is no obligation on anyone to agree to do something outside it – from varying the remuneration to increasing the duties and through to varying it to increase the length of it.

In those circumstances, if one party wants to change the agreement, then that needs to be approached from a commercial perspective (in terms of what’s in it for each party) and not a legal one (in terms of ‘the agreement says you must’). Both parties are entitled to investigate the cost and value of the services provided at their own volition. But, unless the agreement provides for it, those investigations won’t lead to an obligation on the other party being forced to agree to any changes as a result of that investigation.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #660.

Question: Our caretaker/letting agreement makes no specific reference to a substitute manager being appointed while our contracted manager takes annual leave or is off sick. Does a proposed substitute’s appointment require body corporate approval?

Answer: If the agreement is silent, the caretaker can likely install any employees or contractors to perform the work without the need for body corporate approval.

The answer to the question will depend on the balance terms of the caretaking agreement. There may be a clause that provides that any persons who perform the duties require the approval of the body corporate (or there is no need for approval).

If the agreement is silent, the caretaker can likely install any employees or contractors to perform the work without the need for body corporate approval. It might be worthwhile having the agreement reviewed in its entirely though to confirm.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #657.

Question: If the body corporate requests the caretaker gather and maintain the owner roll, are they within their rights to refuse?

The body corporate manager is responsible for providing administrative services (including general and financial administration) to the body corporate, while the caretaker service contract focuses on delivering services other than administrative in nature.

Considering these provisions, if the body corporate requests the caretaker gather and maintain the owner roll, would this constitute a conflict with the caretaker agreement and the BCCM Act? Is the caretaker obliged to undertake administrative tasks such as maintaining the strata roll. Are they within their rights to refuse?

Answer: The management of the body corporate roll is definitely a task for a body corporate manager – not the caretaker.

To me, the management of the body corporate roll is definitely a task for a body corporate manager – not the caretaker. The roll is a body corporate record capable of being accessed like any other body corporate record (like emails, letters, minutes etc) and should be an administrative task.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: Our onsite resident managers don’t provide any cleaning of the gym equipment. Do rules for the cleaning of gym equipment come under health and safety? The complex consists of 196 units.

Answer: Is cleaning gym equipment the responsibility of your scheme’s onsite managers? That depends on the contract’s terms.

The body corporate has a responsibility to maintain the common property. If you have gym equipment that would extend to keeping it clean.

Is this the responsibility of your scheme’s onsite managers? That depends on the terms of your contract with them. If cleaning the equipment is listed in the scope of works, they should be doing it. If not, perhaps it is a body corporate responsibility although you may also consider general cleaning clauses and how they apply.

For their part, the managers might say that cleaning gym equipment requires extra equipment/time as the cleaning required is different from, say, vacuuming a hallway. There may be an additional cost for this.

To get a copy of your contract with the caretaker, contact your body corporate manager. They should have one on file. They should also be able to review the relevant clause and give you their opinion on the matter.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: Can an Onsite Manager evict a short term let guest? Can a Body Corporate evict a guest?

Answer: Possibly, and no, respectively.

The short answers are possibly, and no, respectively.

The longer answers: if the onsite manager is also the letting agent for the lot, then they may have capacity to take that kind of action against their guest, as they are the ones with the direct relationship with the short-term occupier and signed them up to be staying there. An onsite manager does not have eviction powers on behalf of the body corporate or another owner.

Bodies corporate have no powers of eviction per se. The body corporate (e.g., a committee rep) is able to liaise with Police, if it gets to that point, in relation to occupiers.

Your issue appears to be one of disturbances in relation to short-term letting. Your best first step, in my view, is to engage with the owner of the lot from which the disturbances are usually occurring. Issues around short-term letting in strata are being looked at in Queensland by government, although I don’t have any details on what might result, or when.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #623.

Question: What are the requirements for the caretaker to clean and maintain the pool?

I live in a complex which has a large swimming pool that is available to 95 residents and their families. It is the caretaker’s job to clean the pool. A pool service is conducted by an external contractor once a week to check the chemicals etc.

Should the filter basket be checked by the caretaker on a daily basis and the pool be checked for items like dead rats?

Should the caretakers be required to sign a schedule on a daily basis to confirm the pool has been cleaned and checked?

if so, should the schedule be readily available for residents to check?

Answer: This will depend on the precise wording and duties set out in the caretaking agreement.

The answers to these queries will depend on the precise wording and duties set out in the caretaking agreement.

If I were to guess, I suspect the answers would be yes, no and no. However, the actual answer would require a review of the full agreement.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #612.

Question: The on-site management rights are being sold. If the new caretaker outsources the work to contractors, is the new caretaker responsible if those contractors don’t keep the complex up to a satisfactory standard?

The on-site management rights are being sold and the new manager may very well outsource the work to contractors to do the cleaning, mowing, pool maintenance, grounds upkeep etc for the complex. If this is the case, is the new caretaker responsible if those contractors don’t keep the complex up to a satisfactory standard?

Answer: In almost all cases, yes.

In almost all cases, yes. The manager who has contracted with the body corporate to have the certain tasks performed is still primarily responsible for those duties being performed even if they are subcontracted out to a third party.

In most cases the agreement will also expressly provide for this position. There may also be an obligation on the manager to obtain the approval of the committee for any subcontractors but ultimately this will depend on the precise terms of the management rights agreement.

I would suggest that if this takes place the committee reviews the management rights agreement which will govern this situation.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #612.

Question: Our caretaker’s agreement mentions the responsibility for mowing ‘verges’ but does this also mean common area? The wording is causing a few headaches. How do we resolve this?

Our Caretaker’s contract was written back in 2010 and the wording is causing a few headaches. The word ‘verges’ is causing the biggest problem.

We have quite a few verges in our complex and we have a grassed common area around our swimming pool but people are mixing the use of the words verges and common area as meaning the same.

The caretaker is responsible for mowing verges but are they responsible for mowing the common area. Can you shed any light on this, please?

Answer: There is no such thing as a standard management rights agreement so each one needs to be read in detail.

Can I respectfully suggest that there will be far more to the interpretation of this than the words. There are inevitably going to be other clauses, definitions or references in the agreement that will colour what the obligations are. There is no such thing as a standard management rights agreement so each one needs to be read in detail to confirm the position on issues like these. And you can sometimes expect there to be inconsistencies!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: Our caretaker’s spend allowance has been increased from $500 to $1000 per item. Is the arrangement usual, and if so, how do we best control spending?

Our caretaker contract contains a spend allowance:

The Manager shall be entitled to pledge the credit of the Owner and incur an expense on behalf of the Owner in respect of any individual transaction for any amount not exceeding five hundred dollars ($500) OR such amount as the Committee of the Owner* may from time to time authorise in writing PROVIDED THAT such credit is pledged or expense is incurred for the purpose of obtaining goods or services used in the performance of the duties of the Manager pursuant hereto (except any duties of the Manager pursuant to clause 4) of the employees of the Owner or for such other purposes as are necessary or incidental thereto. Any such expense shall be paid by the Owner or if paid by the Manager shall be reimbursed by the Owner to the Manager.

The committee has formally resolved to increase the amount from $500 to $1,000 per item.

It is not limited to isolated incidentals. There is no limit regarding an accumulated amount, or how many items at any time, or how often, or frequency eg per week, per month etc. Essentially, it is an open operating account at the Caretaker’s discretion.

The first thing the Committee hears about it is after the work has been done or the item has been purchased, and the bill is presented to the Committee for approval and payment.

In 2020/21, Caretaker spent approximately $40,000 on items $500.

Doesn’t seem right to me.

Is this open $500+ allowance legal in QLD?

Can the BC override the Committee decision eg by ordinary resolution at an AGM?

Answer: Such a clause is a very common (and important) clause that appears in most management rights agreements.

Such a clause is a very common (and important) clause that appears in most management rights agreements. It allows the caretaking functions of the scheme to progress without (generally) unnecessary administrative requirements.

It is important to recognise that there are a number of obligations in the caretaker spending body corporate funds in that it must be for an expense the body corporate is responsible for. It is not an open cheque book.

Regardless, it is the body corporate’s funds and the committee can exercise more control over the spending of those funds if that is what the committee is more comfortable with. The committee may be able to give a direction (pursuant to another clause in the agreement) to ensure that any such expenses are first run past the committee for approval. The downside to this approach is that it may slow down the performance of duties if the caretaker then needs to wait for the committee to provide some level of approval.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: Our resident manager isn’t doing his job. What is classed as a breach of contract? Can we terminate his contract?

Our resident manager isn’t doing his job. He’s not repairing urgent issues eg we were given a defect notice 30 days ago for fire-stair lighting not working and this hasn’t been fixed. Also, he isn’t producing correct invoices for payments from appropriate works companies etc.

What is classed as a breach of contract? How and where we can get his contract terminated?

Answer: Read the caretaking agreement and understand what the caretaker’s duties are.

A caretaker’s role extends to whatever their caretaking agreement says it does. The starting point with any issue of this nature is to read the caretaking agreement and understand what the duties extend. What I would say is that a caretaker’s role would rarely extend to fixing fire stair lighting – as opposed to procuring the right person to do so. And that is then subject to instructions of the committee and finding a contractor to do it.

With respect to invoices, if it is the body corporate’s money that is being spent, it is simple. The body corporate is entitled to determine how its money is spent and accounted for. That would also normally be part of the contract.

Termination is a very rocky road. There are easier ways to deal with these issues than heading straight down that lawyer friendly path.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #592.

Question: As part of his duties, is the caretaker required to let lot owners into the building if they lock themselves out?

My wife locked herself out of our apartment and asked the Building Manager to let her in. He refused, saying it’s not part of his agreement and he suggested she call a locksmith.

I haven’t seen his agreement so I don’t know for sure, but he has let others in previously, including myself.

Whose responsibility is it to let owners into their apartments when they have locked themselves out?

Answer: In the absence of some contractual obligation it is for the lot owner to find a way back into their lot.

It is a very rare caretaking agreement that obliges a caretaker to provide services to individual owners – like this. Many would. Some don’t – for any number of reasons, but usually there is a bit of a relationship issue at the core of it – either with the body corporate or the owner concerned. In the absence of some contractual obligation it is for the lot owner to find a way back into their lot – the same as it would be for me if I locked myself out of my house.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #566.

Question: As building managers, should we be reimbursed for items needed to complete works required under the caretaking agreement?

We are the building managers of a unit complex. There is a requirement for us to purchase goods and services to complete works required under the caretaking agreement. Our body corp does not supply all items.

When we seek reimbursement for these items, the strata manager advises ‘Your management agreement pays you remuneration for a supply of service which is inclusive of GST.’ So essentially they are saying that our management agreement payment covers the costs of all goods/services we purchase for the management of the building. Is this correct?

Answer: What does the management / caretaking agreement say?

This whole thing hinges on what the management / caretaking agreement says. The usual position is that the body corporate bears the costs of consumables (i.e. fuel, fertiliser, etc) and then equipment is sometimes borne by the caretaker and sometimes by the body corporate.

The other issue that often comes up is when a caretaker engages someone to do a job and there can be confusion about whether the caretaker or body corporate bears the cost of that. That then turns on what actual duties the caretaker must perform. If a caretaker engages someone to do a job their agreement says they must perform, then it is at the caretaker’s cost. Otherwise, it should be the body corporate’s cost but ideally, after the body corporate knows that is the case. This is quite often then coloured by whether the job is a ‘skilled trade’ which might be something a body corporate has to bear.

Each contract is different. The answer to the question will more than likely rest with interpreting all of the above.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Our onsite manager has been successful with a motion to reduce the number of operating hours. Many are not happy with the new performance of duties. What can we now do?

Our Last AGM, the onsite manager put forward a motion to reduce the operating hours of the office by 12 hours a week. She then contacted all the owners who do not live on-site and told them the same amount of work would get done.

The motion passed which means she now does 12 fewer hours a week, whilst still earning the same wage. Is this change valid once the motion has been passed at the AGM? Many on the Committee express they are not happy with the performance. The gardens are now unkept and the office is inaccessible.

Answer: There may be some specific terms in the contract with the caretaker that could be affected by this change and you would need to review that document to confirm. It may be appropriate to engage a body corporate lawyer to do this.

Generally, if the body corporate wants to agree to amend a contract with a caretaking service contractor the way they would do this is via an ordinary resolution at a general meeting. That sounds like what has happened here, so while you may be unhappy with the outcome it doesn’t mean it is invalid.

Still, there may be some specific terms in the contract with the caretaker that could affect this and you would need to review that document to confirm. It may be appropriate to engage a body corporate lawyer to do this.

You may also want to review that contract to check on the scope of works. If you felt the contractor was in breach of these by not maintaining the grounds you can go down the avenue of issuing breach notices. It’s not a perfect solution but is the next legal step.

And, as a Committee, you may want to consider how you communicate with the other members of the body corporate if you want your side of the story to be told. The caretaker of your site has a right to communicate to owners, but so does the Committee. You might want to start communicating to all owners about the running of your building and how the caretaker affects that. Perhaps send out a newsletter or build a website. Maybe conduct a survey of owners to see what they think. See if you can get a wider conversation going about how the building is operating. It takes a bit of time and effort, but if you want things to change you need to engage as many people as possible.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #538.

Question: A caretaker contract with a vague scope of works may lead to disputes over the quality of work being done. When approaching this, what is a good response if the caretaker says ‘that’s not in my contract’?

Many caretaker contracts have a vague scope of works. They may say the driveway should be cleaned once a week but there is no reference to the standard. This can lead to disputes over the quality of work being done. How should Committees approach conversations like this with caretakers? What is a good response if the caretaker says ‘that’s not in my contract’?

Answer: Consider engaging an independent management rights expert to do a common property condition report.

This is a great question and one that we find a lot of because the common themes that we see in caretaking agreements is that the older the agreement, the more vague, the more broad and ambiguous the terms or the duties are. The more modern agreements have what we call a specified duties list and that specified duties list really does give the prerequisite particularisation, but also, frequencies built in there.

To answer the question, ‘How can a committee approach these type of conversations?’, it will depend on whether they’ve been approached previously with the caretaker. If they had been approached and the caretaker has essentially responded with ‘That’s not included in my contract. I’m not going to be doing that’, then the next step for the committee to consider would be to get an independent management rights expert in to the scheme and to do what’s called a common property condition report. I think it’s safe to say that most committee members would not have the prerequisite skill and knowledge that a management rights expert would have.

The difficulty we see is that there is always this argument of nitpicking. The caretaker says ‘The committee’s nitpicking. They’re being subjective in how they’re scrutinising our performance’, and then the committee says ‘No, we just want it to be of the standard that we expect’. So having a management rights expert come in and do a common property condition report. It takes away that subjectivity.

It takes away that argument of nitpicking in the committee can say ‘Okay, so it’s not us that is scrutinising you. We’ve got somebody independent in. This has been the report about the standard of this scheme and the condition of the common property, can we table it and have a discussion with you about how we can go about fixing this? There are two very different interpretations of your duties, and unless we work together to resolve them, we’re going to continue to have these arguments about what you are or are not required to do’.

Now, depending on how those discussions go; If they go poorly, the committee might need to consider issuing a remedial action notice, but if they go well, the committee might engage in some private negotiations with the caretaker to say, ‘Okay, let’s tidy this up. We don’t agree. Let’s get a specific schedule of duties prepared by an expert that ultimately says what you’re required to do with a good satisfactory level of particularisation and the frequency in which you’re required to do it. And let’s do a deed of variation and put it to owners so that we can resolve this moving forward’. That, to me, would be a pragmatic commercial outcome for both parties. It’s all about how you communicate it and it’s all about making sure that what starts as a performance based issue doesn’t escalate into a personality based issue because of poor communication there as well.

That’s probably how I would deal with it first and foremost. Obviously, my opinion with specific schedules of duties is that they work for both sides. The caretaker knows what he/she/it is required to do and the committee knows what is required. Then there is an ability to tick check things off and not have different interpretations of things as well.

Jessica Cannon Cannon + Co Law E: jessicacannon@cannonlaw.com.au P: 07 5554 8560

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: The new caretaker sold the body corporate’s box trailer and pocketed the money. Can we invoice them the cost of a replacement trailer?

A new caretaker has just started at our complex. Without permission, they sold the body corporate’s box trailer that was located on common property and pocketed the money. Can they do this?

If not, can the Body Corporate Committee invoice the Caretaker for the replacement cost of the box trailer?

Answer: The caretaker may be under the (mistaken) assumption that it was theirs to begin with.

No – they can’t.

But the difference between the caretaker doing it and a lot owner is the caretaker may be under the (mistaken) assumption that it was theirs to begin with because it may have been mentioned on the inventory to the management rights contract when they bought – by mistake or otherwise, it is very common for the management entity to supply caretaking equipment like this, so it is not unnatural for a caretaker to think it might be theirs to sell.

So I think the best way to approach it is to:-

Review the caretaking agreement to see who supplies equipment

If the body corporate bought it, get a copy of the evidence of that (because bodies corporate sometimes make the same mistake the caretaker has been accused of here)

Raise the issue with the caretaker to have a chat about it

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the November 2021 edition of The QLD Strata Magazine.

Question: Is the building manager able to issue fines for by-law breaches?

My building manager is issuing fines on behalf of the body corporate for breaches of certain by-laws. Is this allowed? Normally you would have to receive contravention notices prior to this.

We have these two clauses in the by-laws I have found relating to this:

33.4 For the avoidance of doubt, the body corporate may recover its costs in respect of that breach in accordance with these by-laws and under the BCCM Act.

35.1 If an occupier or invitee commits a breach, the owner of the relevant lot must pay on demand the whole of the body corporate’s cost in respect of that breach, which amount will be deemed to be a liquidated debt.

Answer: The building manager has no ability to impose fines (and nor does the body corporate).

Todd Garsden, Mahoneys

The building manager has no ability to impose fines (and nor does the body corporate). Only the Magistrate’s Court can impose fines for by-law contraventions and that is relatively rare.

Separately, both of those by-laws are invalid as they are contrary to section 180 of the BCCMA.

William Marquand, Tower Body Corporate

The frustration for body corporate owners is that the means of effectively enforcing by-laws are so convoluted that it is easier to get away with breaking the by-laws than prosecuting them.

In this instance the caretaker doesn’t have the authority to issue fines and the body corporate should adhere to that. If the practice continues then owners may challenge the outcome and the body corporate be held liable. Perhaps some alternative creative thinking is required to encourage greater adherence. You could try some public naming and shaming – sending out a notice to owners of what by-laws are being broken and by whom.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the October 2021 edition of The QLD Strata Magazine.

Question: Our caretaker has “commandeered” our garden shed as his recreation space. Our bylaws clearly state that the shed is for storage only. Surely the Committee need to enforce this?

Our caretaker has “commandeered” our body corporate garden tool/material store shed as his own, using it as a workshop/retreat and socialising area day and night.

This is annoying neighbours in the vicinity. The matter has been the subject of a BCCM conciliation hearing who set out specific conditions, use, times etc. These have been ignored by the caretaker and the committee. The committee claims that according to our local council regulations no restrictions apply regarding hours of use etc.

Our bylaws clearly state that the shed is for storage only.

Surely this has nothing to do with the council and is the responsibility of the committee to police?

Answer: A caretaker can only use common property for purposes related to caretaking if those rights are granted by way of an occupation authority.

Yes – this is not a council matter but an issue for the body corporate.

A caretaker can only use common property for purposes related to caretaking if those rights are granted by way of an occupation authority. This is because the regulation module provides:

A service contractor or letting agent may acquire rights to occupy part of the common property for the purpose of the service contractor’s engagement or letting agent’s authorisation, only under this section.

If the use is not for caretaking purposes, there is no ability to exclusively use the area.

To approve an occupation authority an ordinary resolution at general meeting is required. Accordingly, to resolve the issue, the committee would need endorsement at general meeting.

Importantly, an occupation authority can:

only be given if the use does not unreasonably interfere with the use and enjoyment of a lot or the common property; and

if it is given, can be done on any reasonable conditions.

Accordingly, it is immaterial what the by-laws provide for (unless it is an exclusive use by-laws that was imposed prior to the commencement of this section dealing with occupation authorities).

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #507.

Question: Neglect of a garden on top of the carpark has been blamed on the caretaker’s lack of maintenance. Could this be correct?

Our 4 y.o. complex incorporates an elevated garden on top of part of an outdoor carpark.

Our Caretaking Agreement that is with, and was written by the developer specifies monthly maintenance and clearing of all garden drainage.

This has never been carried out by the Caretaker or his contractor with the result the garden is now completely dysfunctional. After heavy rain, it is a lagoon, that then drys to a bog. It has sprung numerous leaks now onto the carpark below. It has also become a perfect mosquito breeding ground to the detriment of the hundreds of surrounding apartments.

The Committee believes that this is a straight-forward case of neglect of duties by the Caretaker and a breach of the agreement, which can only be rectified by the Caretaker assuming responsibility and proceeding with rectification, replacement or repair – as required – to restore the garden to its original functioning condition.

Is this assumption by the Committee likely to be correct?

Answer: I think the starting point is what the caretaking agreement says.

This is an interesting one. I think the starting point is what the caretaking agreement says. These things can be open to interpretation.

After that, it all then ‘depends’ and the issue I would raise is this obviously hasn’t happened overnight. It has taken 4 (?) years to manifest itself. The consequences of the failure to perform the alleged work would seemingly have been obvious some time ago. On the body corporate side of things – what happened? Was no one looking at the duties or their performance of them? Leaks into car parks take some time to appear. Did they get ignored for an extended period? Did the caretaker suggest to the committee two years ago there might have been an issue and was told to ignore it? Those things happen.

I raise that in the context of mitigation. If there was an opportunity to mitigate some losses – i.e. act in a way that meant that the full scale of the damage might not have occurred – the body corporate might be in some way responsible for not doing that as well. It may have contributed to the damage now occurring by ignoring the defects.

Aside from that, there is a common property defect. That should be attended to and rectified. The issues referred to should be made good. That is the body corporate’s statutory obligation.

The next question is whether the body corporate can blame someone for that, and seek to recover damages from people who contributed to it. That is where the questions I refer to above will come into play.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #507.

Question: I’d like a succinct explanation of an On-site manager’s powers in a QLD body corporate complex.

Please give a succinct explanation of an On-site manager’s powers in a complex. Some owners think we have all-encompassing powers and can go around arresting people and towing cars away for parking incorrectly. Perhaps an explanation of the due process that has to be followed to enforce a By-law breach is required?

Answer: An onsite manager doesn’t have ‘powers’ as much as they have duties.

An onsite manager doesn’t have ‘powers’ as much as they have duties. Those duties are set out in their management rights agreements.

As always, the difficulty then comes with personalities. Some committees want onsite managers to run around executing people for the slightest infraction and others don’t want that to happen at all as they want to deal with it.

At law only a committee can enforce by-laws. Any ‘enforcement’ usually comes as result of by-law infractions, so what that mans is that (in a nutshell) an onsite manager should report breaches of by-laws to the committee for actioning. The committee then should deal with them. A good onsite manager may well have a quiet word to the alleged breacher and suggest that if they don’t follow the by-laws the committee may get a little unhappy about it, so its perhaps best you don’t do ‘that’ any more too.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #501.

Question: Our on-site manager did not carrying out necessary tree pruning and we’ve had to engage a specialist contractor. Surely this extra expense should be the caretaker’s cost?

Our on-site manager/caretaker has not maintained the trees in our complex. They are now above a safe height for the manager to trim. If the manager had done the work on a regular basis this would not have happened. Theon-site manager now needs to hire a tree specialist at the cost of the Body Corporate. Surely the manager is a fault here and should be pay for the work to be done.

Answer: The manager ought to bear the costs of engaging the specialist contractor to restore the tree to the standard required of the agreement.

Without reviewing the terms of the agreement to confirm that:

that the manager’s obligations were to maintain the tree to a level that would remain safe to work on without the need for a specialist contractor; and

the manager’s duties actually exclude maintaining trees above a particular height,

it is difficult to confirm.

However, if we assume that the above assumptions are correct, then yes, the manager ought to bear the costs of engaging the specialist contractor to restore the tree to the standard required of the agreement.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #485.

Question: With regards to maintaining the land which abuts the body corporate area, e.g. the grass verge on the footpath, would a body corporate committee have authority to request its service contractor to mow this area?

With regards to maintaining the land which abuts the body corporate area, e.g. the grass verge on the footpath, would a body corporate committee have authority to request its service contractor to mow this area? This is given that the footpath is technically outside of the common area and so technically outside of the control of the body corporate.

Answer: The obligations of a service contractor, and the body corporate’s entitlement to direct a service contractor to perform additional duties, hinges on the wording of the body corporate’s agreement.

The obligations of a service contractor, and the body corporate’s entitlement to direct a service contractor to perform additional duties, hinges on the wording of the body corporate’s agreement, including:

whether the duty regarding mowing is stated to include the grass verge (or if it states that the requirement for mowing relates only to the common property); and

whether the agreement includes a clause enabling the body corporate to direct the service contractor to undertake additional duties (which may be for additional remuneration) and, if so, whether that clause is sufficiently broad to enable such a direction to relate to the grass verge (which is outside of the Scheme land).

Hayley Gath Mathews Hunt Legal E: hayley.gath@mathewshuntlegal.com.au P: 07 5555 8000

This post appears in Strata News #485.

Question: Does the committee have the right to arrange a quote for works without passing anything by the building manager?

Does the committee have the right to arrange a quote for works without passing anything by the building manager? Our Committee only informs the caretaker which company is responsible for the work and when the project will start.

All the invoices about the project are directly sent to Body Corporate without any input or contact with the building manager.

Answer: The Committee is the delegated authority of the Body Corporate so if they don’t need assistance seeking a quote by all means they can get one without reference to the people they employ.

A Body Corporate engages a caretaker or body corporate manager to assist with the running of the scheme. The Committee is the delegated authority of the Body Corporate so if they don’t need assistance seeking a quote by all means they can get one without reference to the people they employ. And, if the Body Corporate engages a contractor, they can also advise the caretaker of the details of the works and ask them to make preparations accordingly. They are the owners and it’s their building so that’s their right.

That said, if a building has engaged a caretaker one of their roles would usually be to assist the committee with repair and renovation projects. If they are not doing that it implies a breakdown of the relationship between the two parties and both sides might want to consider why this is the case and how the situation can be rectified.

A caretaker shouldn’t have control over a job, but if they are doing their work properly the owners would usually be happy to receive their assistance and insight into selecting contractors, determining a scope of works and ensuring a project runs smoothly. From the Committee’s perspective they may need to consider that even if there are reasons why they may not want to work with the caretaker they will likely need some assistance from them at some point and keeping them engaged in the project to some extent may return a better result than leaving them out in the cold.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the May 2021 edition of The QLD Strata Magazine.

Question: Our new onsite managers agreed to a caretaker work plan when buying the management rights. Would this plan now be considered part of their contract and can it be added to the caretaker duties?

Our new onsite managers agreed to a caretaker work plan when buying the management rights.

The work plan covers areas such as clerical, mowing, trimming hedges and edges, cleaning driveways. This plan was developed by the new managers. Would this plan now be considered part of their contract and can it be added to the caretaker duties to be used in conjunction with current duties statement for future managers.

Answer: A fair bit hinges on what and how it was done, but usually the answer would be ‘no’.

A fair bit hinges on what and how it was done, but usually the answer would be ‘no’. It could be an interpretation of what is in the agreement, but unless it actually forms part of the agreement it probably isn’t likely to be legally enforceable as part of it. It does depend a lot on how the document was created and the framework of that discussion and the documents relating to the assignment itself.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #459.

Question: Our strata building has an embedded network. The building manager’s contract states he is required to read meters and issue invoice for lot use. Should this be part of the building manager’s duties?

Our strata building of 40 lots has an embedded network for our individual metered electricity supply. The body corporate buys our electricity at a bulk rate and is to recover the cost by billing each owner/occupier for there metered consumption.

The Building Manager’s contract states he should both read the meters and ‘charge agreed-on rates to the owners/occupiers for electricity consumed’. Claiming he was unable to issue invoices and meet the requirements for running an embedded electricity network, the Body Corporate had to engage a specialist firm to issue monthly invoices. This service is paid for by the Body Corporate and a monthly service fee is added to each invoice to recover these costs.

Should the cost of the issuing of invoices by the specialist firm be paid by the Building Manager as this is a duty within his agreement and is paid for completing this duty by the body corporate?

The Building Manager is also the short-term Letting Manager for the building and lets many apartments on a short-term basis. The Letting Manager is responsible for the electricity costs incurred by these apartments as part of the letting arrangement.

In the monthly disbursements he manages, the Letting Manager is paying for the electricity consumed component, however, is on-charging the individual owners for the monthly service fee of issuing the electricity invoices.

To me, this monthly service fee is part of the electricity bill. Our specialist service provider also agrees that this should be seen as part of the electricity bill in total.

Should the Letting Manager separate this cost from the electricity bill and on-charge the cost to the owner?

Answer: It would all come down to the interpretation of the manager’s agreement. It would be pretty uncommon for this to be the manager’s responsibility.

The answer to this question is not clear cut and would depend on the interpretation of the manager’s agreement.

The supply and on-sale of electricity in community title schemes is strictly regulated, and significant penalties can be imposed if proper exemptions or authorisations are not in place. With that in mind, it is probably in the body corporate’s best interests to have the electricity services provided by a specialist.

If the manager’s agreement requires them to arrange for these services to be provided to the body corporate, then there is certainly an argument that the manager’s agreement needs to be varied to remove those duties or that the manager should engage the specialist contractor. However, there is likely to be a clause in the manager’s agreement that makes specialist services a body corporate responsibility. So it would all come down to the interpretation of the manager’s agreement. It would be pretty uncommon for this to be the manager’s responsibility.

This would depend on the costs disclosed in the manager’s letting appointment with individual owners.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Despite it being in his agreement, our care taking manager refuses to refurbish the gardens as an ongoing maintenance project. Would the committee be within its right to have the manager perform such refurbishment?

Our committee would like the manager to refurbish the gardens as an ongoing maintenance project. His claim is that this is improvement, not maintenance. The contract says to maintain the gardens to a high standard, the implication being to look after the garden bed, remove dead or spreading ground cover and add plants/shrubs as specified by the committee.

The manager has signed a “Deed of Consent” to carry out duties “expressed or implied”. Would the committee be in its right to have the manager perform such refurbishment?

Answer: Refurbishment to me is a capital item – not a maintenance one. In general terms a caretaking agreement usually only extends to maintenance obligations

Unfortunately, these things are never that simple.

Refurbishment to me is a capital item – not a maintenance one. In general terms a caretaking agreement usually only extends to maintenance obligations, but that does depend on the interpretation of the caretaking duties and any other relevant clauses in the agreement.

The other issue that will flow is that if the garden refurbishment substantially changes the nature of what the manager is obliged to do under the current agreement, then that opens the door to arguments about what the manager is obliged to do with respect to the new areas.

This argument comes up more with refurbishments of common property. Take a foyer as an example. If the management rights agreement refers to vacuuming carpet, and then the refurbishment changes the foyer to tiles, what happens then? You need to look at that same issue with respect to your proposed garden works.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #432.

Question: Can a Caretaker serve a lot owner with a breach of bylaws notice without the knowledge and agreement of the Body Corporate Committee?

Answer: If it is a formal notification of breach of by-laws on behalf of the body corporate- no.

My question would be ‘breach for what?’

If it is a breach of the by-laws because the occupant is a tenant in the managers letting pool and they have instructions to do that on behalf of the owner – yes

If it is a formal notification of breach of by-laws on behalf of the body corporate- no. Only the committee can enforce by-laws, but managers can certainly draw an occupants attention to the breach of them – like a committee member could do.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Our caretakers insist on communicating directly with owners and tenants and usually gets the message wrong. Can we put a stop to that line of communication?

We have non-resident caretakers. They insist on communicating directly with owners and tenants and usually get the message wrong. This has caused some embarrassment in the past, particularly in relation to quotes for contracting work.

They also keep emailing lot owners about very minor maintenance/repair issues that don’t require reporting. My understanding is that the Body Corporate is responsible for communicating with owners and the Caretaker are only is obliged to report to the Body Corporate Committee.

Can we stop the caretaker from communicating with the residents. We don’t want owners to be hassled and they are better informed by the Body Corporate Committee.

Answer: No one can demand that people stop speaking to each other.

No one can demand that people stop speaking to each other, and this to me looks like someone wanting to help but doing it in a clumsy manner.

A better approach may be a gentle sit down, talking about some clear lines of communication in terms of who will say what to who and when, and more importantly, who won’t. The idea would then to be to follow that up with an email setting that agreement out and then gently prodding people back into line if they get out of shape.

Hopefully that solves it.

But there is no way to direct people not to talk to others (as opposed to instruct them on work to be done for the body corporate – for example – which is possible)

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Our caretaker charged a business lot owner an after hours call out fee to reset a tripped power main switchboard? Is this reasonable?

Answer: I don’t believe it is unreasonable for a Caretaker to charge a fee for being called out after hours to carry out duties that are not included in the care taking agreement.

I don’t believe it is unreasonable for a Caretaker to charge a fee for being called out after hours to carry out duties that are not included in the care taking agreement (assuming that this is not included). However, the Caretaker should make it clear that there will be a charge and how much it is at the time of being called out.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #425.

Question: Are caretakers the body corporate’s employee as deemed to be a worker under the WH&S Regs?

A QLD Strata under the Work Health and Safety Regulations 2011 defines in (7) – a strata title body corporate is not a person conducting a business (PCBU) – unless the body corporate engages any worker as an employee.

Our body corporate has engaged caretakers under contractual agreements as a contractor. It appears that the caretakers are full-time resident managers paid by the body corporate.

The question is: would this mean that the caretakers are the body corporate’s employee as deemed to be a worker under the WH&S Regs (s) 7 s2 and WH&S Act 2011 (s) 7 defines a worker which includes – ‘a contractor or subcontractor’? The building managers are engaging subcontractor to conduct works on common property.

The WH&S Reg 2011 (s) 7 s2 has a proviso and it seems we have defaulted into a PCBU through engagement of a contractor and in turn engaging subcontractors in business activities on common property on behalf of the strata.

Answer: The first consideration is that the definition of a “worker” for workplace health and safety legislation is different to the meaning of “worker” for industrial relations legislation.

The first consideration is that the definition of a “worker” for workplace health and safety legislation is different to the meaning of “worker” for industrial relations legislation.

In the context of workplace health and safety legislation, there are mixed views as to whether the existence of a worker on the common property triggers the body corporate being a PCBU. At one point even the Government’s workplace health and safety website said it doesn’t apply to bodies corporate. However, despite this, the generally accepted position among most lawyers in the industry is that the body corporate is a PCBU in circumstances where it has a letting agent and as a result has workplace health and safety obligations, along with the manager.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #422.

Question: Is a strata complex of 48 units with a pool in Qld required to have an onsite caretaker?

Answer: There is no requirement for any scheme to have an onsite manager irrespective of its size and facilities.

There is no requirement for any scheme to have an onsite manager irrespective of its size and facilities.

However, if there is an existing contract in place, that contract still needs to be honoured. For larger schemes though, often the management rights model is the most suitable to ensure an onsite presence for the variety of issues that come up from time to time.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #408.

Question: We have a Tenant in our block of units that complains to the On-site manager about other residents. What is the On-site manager’s responsibility here?

We have a resident (tenant not owner) in our block of units that is always complaining to the On-site manager about other residents (both resident owners & Tenants).

What is the On-site manager’s responsibility here?

Can they speak to the residents about the perceived issues or must these complaints (both specious and spurious) be referred to the Body Corporate Committee for their action?

The tenant has already been reported to the Police for assaulting the Management rights owner. The owner of the Unit appears reluctant to do anything about the tenant.

Answer: Dealing with difficult residents is probably outside the scope of responsibilities of the caretaker

Dealing with difficult residents is probably outside the scope of responsibilities of the caretaker – save where there is an obvious breach of the by-laws regarding parking, noise and the like.

The better course of action in these matters is to report them to the Body Corporate Committee. They are the elected representatives of the owners and can, if necessary, obtain legal advice on the options open to the body corporate.

Tower Body Corporate E: kelly.borell@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #401.

Question: If a caretaker agreement clearly specifies a particular task is to be completed by the caretaker can the Committee vary the agreement? If not, what would be the process?

If a caretaker agreement clearly specifies a particular task is to be completed by the caretaker “three times a week or as required”, can the Committee itself vary the agreement for any period and direct the caretaker to undertake the task less frequently than specified in the agreement?

If not, what is the correct process for any tasks specified in the caretaker agreement to be varied in their frequency by either caretaker and/or body corporate?

Answer: The only way any management rights agreement can be varied is by ordinary resolution at general meeting.

The only way any management rights agreement can be varied is by ordinary resolution at general meeting. What I would say is ‘three times a week or as required’ is a bit nebulous. Is the duty to be performed three times a week, or only as required? Say it relates to emptying bins. If there is no rubbish in there during the entire week, was anything actually required? In that instance, when it comes down to a question of the interpretation, I think the committee and caretaker could agree together what they think it means.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #383.

Question: Our Caretaker lives two States away and has not been onsite for the past eight months. What are the legal obligations for the Caretaker to be onsite?

Our Caretaking Agreement states the Caretaker should be “contactable and available at all reasonable times”.

I understand the Caretaker does not have to live onsite but surely it is reasonable to expect the Caretaker to live locally and attend the complex regularly.

Our Caretaker lives two States away and has not been onsite for the past eight months.

What are the legal obligations for the Caretaker to be onsite?

Answer: If the duties are being performed this alone might not be an issue.

What this all comes back to is what the management rights agreements say. Off the cuff, I think it would be hard to say someone is available if they live interstate – but the rest of detail is then what matters as in ‘available’ for what? Coffee with the committee? Daily cleaning of the pool? A bunch of things in between?

In essence, if the duties are being performed this alone might not be an issue because ‘available’ can be on the phone (the same way Chris and myself are available). The agreement itself will deal with what that is supposed to mean that is above and beyond just that clause.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #369

Question: If we ask the building manager to inform the residents of works being done, he absolutely refuses. We believe this is one of his duties as the building manager.

I live in a Townhouse complex in Brisbane and we have an onsite Building Manager. I am also on the Committee.

If we ask the building manager to inform the residents of works being done, he absolutely refuses and will only inform the tenants in his rental pool. This duty then falls back on the Committee and we don’t believe that it is our job. We believe this is one of his duties as the building manager.

This is very frustrating as the committee are all volunteers and most of us work full time. We certainly don’t get paid to do this type of administration work.

Answer: I suspect the manager is right.

I suspect the manager is going to be right. The starting point has to be their caretaking agreement and what they are specifically obliged to do. It is possible (but very unlikely) that the agreement obliges them to deliver notices to lot owners individually. If it does, then they must.

If it doesn’t, then it is up to the committee to manage the process – like it would have to in a building without management rights.

A caretaker has no direct relationship with lot owners individually other than via their letting appointment if they manage lots for lot owners. They have no relationship as caretaker with owner occupiers or outside managed properties. They are accountable to the committee only for their performance as caretaker.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #293.

Question: Should purchasing parts etc for repairs around the complex form part of the duties of a building manager? If so, what mileage can I charge the Committee?

Answer: If it is not set out in the contract, it is what is agreed.

If it is not set out in the contract, it is what is agreed.

And if they don’t agree to pay it, it is one of those things where you might not actually go and do it if it is not your job …

These styles of argument are usually symptomatic of larger issues, and before you start playing the contract by the black letter of it, it is worth understanding what you are not doing that you should be …

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #270

Question: We are experiencing unprofessional conduct from our onsite managers who are providing personal information about lot owners. The police have been involved. We receive no support from the Body Corporate Managers and Committee.

Many of the lot owners in our scheme are experiencing the most unprofessional conduct from our onsite managers.

The most serious issue being the managers providing personal information about a lot owner such as when this lot owner is home if their vehicle is in the basement etc to a perpetrator that has charges of assault, trespassing, and stalking. What are the duties of a building manager when it comes to disclosing information about lot owners?

Police have spoken to the on-site managers, as it is a breach of the Privacy Act and places the lot owner at a safety risk.

We receive no support from the Body Corporate Managers and Committee, as they feel it’s not their problem. They have stated it’s a civil matter.

What can we do?

Answer: I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.

The first thing is whether we can say for absolutely certain that the information is being passed on? And by who? Who factually knows this? It would be a very dangerous allegation to make, especially if the fact someone is home could be found by alternate means – likely simply seeing them come in or observing the lights were on.

I don’t think it is a breach of the Privacy Act – that relates to information and also only captures businesses with a turnover of more than $3 million. See this article I wrote about this matter – QLD: What does the Privacy Act mean for management rights?

Off the cuff, I think it is a civil matter too. I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #200.

Question: What are the duties of a building manager when it comes to providing relevant information to committee members before a vote is taken?

I would like to know the duties of a building manager, and if it is their responsibility to provide all relevant information to committee members before a vote is taken?

Should they do the research or expect the committee members to it?

I live in Queensland and many of our lot owners are very unhappy with the managers’ level of commitment and execution of their duties.

Answer: It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.

It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.

As an example – if the issue was getting some concreting done and the caretaking agreement required the manager to get two quotes, the manager would just need to get the two quotes and present them to the committee. The manager wouldn’t need to go as far as researching the contractor and doing a background check on them. That would be something the committee is then responsible for.

If the caretaking agreement required the manager to make a recommendation to the committee about which quote to use, then the manager would probably need to do some research so that they could back up their recommendation.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #129.

Question: What is deemed appropriate behaviour by onsite managers? Do the duties of a Builder Manager include the enforcing of by-laws?

I was wondering if you could clarify what is deemed appropriate behaviour by onsite managers.

We have an onsite manager at our complex which is made up of 78 Units and 6 townhouses.

Our manager takes photos of anything on a veranda or in a courtyard he deems inappropriate or that he feels the Body Corporate will deem inappropriate. For example, someone once had an item on their veranda, he photographed it and then showed the evidence to the Body Corporate at a meeting. No one seemed to find it weird that he had taken a photo using his mobile phone. Even the Strata Managers who oversee the management did not speak up.

He will also text residents to advise them that their washing is visible in a courtyard, however, in all our courtyards the only way you could see into is if you’re peering from a height using binoculars.

This is unnerving given the fact there are quite a few women who live alone at our complex and a number of the properties have children or dependents residing.

Is it against the law as a manager to peer into properties to catch people out? Do these actions form part of the duties of a builder manager?

Answer: With management rights, it is sometimes feast or famine.

Complaints can be made about extremely zealous managers (as appears to be the case here), and then the next one will be about the manager completely ignoring what they have to do. Of course, a lot of managers do get it right, but then there is no cause to complain!

What I suspect is happening here is that the manager is taking an almost militant approach to managing compliance with the by-laws. There is probably a by-law saying that items shall not be stored on balconies. There is probably also a by-law saying that washing (if it is hung outside) should not be visible from the common property or other lots. These are both ‘traditional’ template by-laws that we see in many schemes.

How the manager is going about it is obviously causing concern and for me, it starts with what the manager’s agreement says about by-laws and who should actually enforce by-laws.

We first wrote about this in 2011 – Does a Resident Manager Enforce By-Laws?

In essence, the normal position will be that the manager should tell the committee about breaches of the by-laws and then it is up to the committee to do with that as it sees fit. It is not the role of the manager to call people out on their by-law breaches.

Ultimately, it should be a matter of instruction. If the committee said to the manager ‘we don’t care about washing – leave it go’, then that is the end of the story. If the manager’s conduct is intrusive, you can obviously have a direct communication about that, but the alternative is to formally write to the committee with the concerns and ask them to manage them.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

Question: What qualifications form part of the duties of a building manager? Does our Building Manager need any specific qualifications like a resuscitation certificate or any OHS qualifications?

What qualifications form part of the duties of a building manager? I have read that a building manager/caretaker only needs a Reality License to hold a Building Manager position in QLD. Are there no other qualifications they need, such as OHS certification, qualified in resuscitating for the pool, plus others?

Answer: There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.

There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.

If a resident manager lets lots they do need a licence to act as a real estate agent, but that relates only to letting. And to be fair, the question does reveal some of the many misconceptions that come with management rights. A resident manager is not a pool safety official (as one example). Duties of a building manager do not extend to the supervision of people swimming in the pool. That is what by-law and parents are for!

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

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