QLD: Q&A Privacy and Correspondence within a Body Corporate

This Q&A is about privacy and correspondence within a body corporate.

Table of Contents:

• QUESTION: Our committee recently published a ‘building contact list’ including my name and number. We’ve never permitted these details to be shared. Can the committee share personal information without permission?
• QUESTION: If a lot owner does not maintain known issues in their lot and this causes damage to common property, are they liable?
• QUESTION: Due to a parking issue, our building manager shared our details with another lot owner. Can the building management staff share resident’s personal information with other lot owners?
• QUESTION: Our building manager uses a drone to carry out ‘balcony audits’. Would Committee approval be required for this type of inspection?
• QUESTION: I know of email correspondences between the executives Chair, Treasurer and Secretary that have not been shared with all other committee members. Should all BC emails be shared with the committee when requested?
• QUESTION: Does the body corporate manager of the complex have to be copied in on all emails between the body corporate committee?
• QUESTION: Our chairman only passes information onto the rest of the committee when he needs something to be voted on. Isn’t it his duty to share all emails etc from the Body Corporate and the apartment manager with the rest of the committee?
• QUESTION: Can a lot owner’s address for service of notices be changed to an email address? Does this apply to General Meeting notices as well as all other mail?
• QUESTION: Can I make communications with the committee private by including words like ‘private and/or confidential and/or privileged’ in whatever I send?

Question: Our committee recently published a ‘building contact list’ including my name and number. We’ve never permitted these details to be shared. Can the committee share personal information without permission?

I own a lot in a strata complex of 102 lots. My mother lives in the apartment. The committee published a list of all “residents” contact details (lot number and phone number). They obtained these details from the body corporate records.

I purchased my lot in 2016 and have never received a request from the committee or strata for my mother’s or my contact details to be published this way.

The committee updates the list regularly. Recently when they updated the list, my name and mobile number were included – even though my mother still resides in the lot and I am the owner.

I understand my details are listed on the body corporate roll and available to anyone who pays the fee to access the role. However, is the committee allowed to publish a list of all resident’s details without their explicit approval?

I asked the committee to remove my details immediately. I suggested they request permission from residents or provide an ‘opt-out’ for those who do not want their details publicly available.

The strata manager says the committee can do this. Are they correct?

Answer: Submit a motion to the committee (or indeed, to a general meeting) to have action taken.

Your query exists in a grey area. Note that I am only speaking here from a strata background and with strata expertise. I cannot comment on any privacy issues which may or may not apply. You should seek specific privacy advice from relevant government agencies.

As you rightly point out, your details on the roll are available to any ‘interested person’. That includes your details as an owner and details of any lease of six months or more. I assume the latter point would include your mother.

Queensland’s strata legislation is quite clear that the details on the roll are available, provided that the correct process to access has been taken. As far as I can see, the situation you describe – in which those details are proactively published – is not provided for at all. Playing devil’s advocate for a moment, the committee may argue that publishing details this way takes the concept of transparency to its ultimate end and that all details would be available to an interested party anyway. The flip side is, of course, your concern that neither you nor your mother agreed to this kind of publication and that, at the least, an interested party still has to go through a process and seek approval for the records they seek. Proactive publishing is very different to that.

The ‘opt-out’ scenario you describe is also in a grey area. Again, that is not expressly provided for, although it is arguable it would be reasonable for the committee to agree to do so on your request.

Assuming that you remain concerned about this situation, your option here would be to submit a motion to the committee (or indeed, to a general meeting) to have action taken – e.g., that the committee cease proactive publication (if you want to cast the net widely) or that the committee cease publication of yours and your mother’s details (if you want to keep it focused on your situation). As an owner, you have the right to submit motions. If your motions do not succeed, then you can dispute that through the Commissioner’s Office.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

Question: If a lot owner does not maintain known issues in their lot and this causes damage to common property, are they liable?

A lot owner in our building (BFP) is aware they have water traps on their lot. They have leaky covers on rooftop access doors, plus a leaky and poorly constructed pergola on their exclusive use rooftop terrace. These items are not maintained or repaired so that they work properly to prevent water damage. The resultant water damage becomes the cost of all owners to fix. Can the owner be pursued for the cost of the resultant repairs?

Answer: Not only can lot owners face an uninsured loss for damage to their own property, they can also be held liable for damage to other’s property as well.

Lot owners have a responsibility to maintain their lot in good condition. That is a requirement under applicable regulations, for example, section 211(3) of_ Body Corporate and Community Management (Standard Module) Regulation_.

From an insurance perspective, failure to maintain a property can also have an adverse impact on insurability.

Insurers will include exclusions such as Damage caused by non-rectification of an Insured Property defect, error or omission that You were aware of, or should reasonably have been aware of – this will give the insurer the ability to deny a claim for damage resulting from the failure to address these known issues.

Not only can lot owners face an uninsured loss for damage to their own property, they can also be held liable for damage to other’s property as well.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
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 the March 2023 edition of The QLD Strata Magazine.

Question: Due to a parking issue, our building manager shared our details with another lot owner. Can the building management staff share resident’s personal information with other lot owners?

While trying to park in our assigned car space in our basement garage, the battery of my daughter’s car died. She managed to push the car to the nearest available space to avoid blocking access. Later, an aggressive resident knocked on her door, demanding that she move her car. She explained the situation, and the other resident calmed down.

My daughter approached the building manager and asked if our apartment number had been given out. The building manager confirmed an irate resident had complained about a resident parking in their space, and the car owner’s details had been shared.

Can the building management staff share resident’s personal information with other lot owners? Is this a breach of privacy?

Answer: From the manager’s perspective, it is hard for them to deny information that is open to basically anyone.

This is one of those ones where you need to put yourself in the shoes of the other person. From my end, the ideal thing to do would have been to put some form of note on the disabled car to let anyone who was interested know what had happened. People block others all the time and it (justifiably) winds some up.

From the manager’s perspective, it is hard for them to deny information that is open to basically anyone – all that would have happened is they would have been caught in the middle of the dispute and that’s not in their interest either.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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

Question: Our building manager uses a drone to carry out ‘balcony audits’. Would Committee approval be required for this type of inspection?

Our building manager uses a drone to carry out ‘balcony audits’.

They are checking on balcony furniture, pot plants etc.

This seems like a gross invasion of privacy. Would Committee approval be required for this type of inspection?

Answer: You could potentially put a motion to a general meeting to prohibit use of drones, although I’d urge caution on that.

‘Invasion of privacy’ is not something covered under strata legislation. If you are suggesting a privacy concern, you would need to make enquiries with the Office of the Information Commissioner for further information. There are also specific rules around the use of drones in Australia: take a look at Drone rules for further information.

If your enquiries reveal that the body corporate has potentially not done the right thing, you can then take it up with the committee to rectify. It’s the committee that has the direct engagement with the body corporate manager. After that you might have the ability to make a complaint with either of those agencies listed above.

You could potentially put a motion to a general meeting to prohibit use of drones, although I’d urge caution on that. If you are in a multi-storey building, drone surveillance might actually be the most cost effective outcome and doing it a different way may impact upon your levies.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

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

Question: I know of email correspondences between the executives Chair, Treasurer and Secretary that have not been shared with all other committee members. Should all BC emails be shared with the committee when requested?

As an ordinary committee member it has come to my attention that there are several email correspondences between mainly the executives Chair, Treasurer and Secretary that have not been shared with all other committee members including myself that pertain to the BC. I have asked the Chair to send all these onto the rest of the committee without any reply or response. Can I take this matter further as I am aware that all BC emails are not private and must be shared when requested?

At previous BC meetings I have requested to be included in all correspondence but the executive members still ignore this. There’s correspondence that I have requested to receive by the Chair and he will not respond.

What other options do I have?

Answer: Without the chairperson volunteering the nature of the email it would be difficult to characterise whether the email is a body corporate record or not.

The module provides that the following is a body corporate record:

correspondence received by the body corporate, and correspondence sent by the body corporate

Adjudicators have held that irrespective of whether such communications are held on the formal body corporate record, or by a committee member separately, they are still a body corporate record and are subject to the usual record request obligations.

However, that does not mean that each and every communication sent or received by a committee member fits within the definition of correspondence received by the body corporate, and correspondence sent by the body corporate.

For example, the email in question may be a private email between two lot owners who just happen to be committee members. This would not be a body corporate record. However, if the email was sent or received in the committee member’s capacity on behalf of the body corporate, it would be a body corporate record. Without the chairperson volunteering the nature of the email it would be difficult to characterise whether the email is a body corporate record or not.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #564

Question: Does the body corporate manager of the complex have to be copied in on all emails between the body corporate committee?

Answer: There is no requirement to have the manager copied into all committee emails.

While it is generally good to have a flow of relevant information, there is no requirement to have the manager copied into all committee emails. For example, you might not include them in if you were discussing their performance or contract.

William Marquand
Tower Body Corporate
P: 07 5609 4924
E: [email protected]

This post appears in Strata News #423.

Question: Our chairman only passes information onto the rest of the committee when he needs something to be voted on. Isn’t it his duty to share all emails etc from the Body Corporate and the apartment manager with the rest of the committee?

Our chairman only passes information onto the rest of the committee when he needs something to be voted on.

The committee is not informed when the manager is sick or goes on leave, we had someone break into the underground parking, he doesn’t inform the committee of any of these things. Isn’t it his duty to share all emails etc from the Body Corporate and the apartment manager with the rest of the committee?

Answer: Perhaps ask for communication to be reviewed at the next committee meeting with a view towards changing the current system.

Good communication is one of the keys to good strata management but how that is achieved can be a difficult balancing act.

It’s fairly common for plans to nominate one person as the key point of contact with a strata manager or building manager – it can help cut down on the volume of emails and improve decision making. However, if that is not working out for your plan then you are entitled to look at doing things a different way. Perhaps ask for communication to be reviewed at the next committee meeting with a view towards changing the current system. The change required could be as simple as asking for all committee members to be cc’ed in to communications with the strata and building manager even if they don’t participate directly in the conversation.

The other side of this question is to think that if one individual is handling most of the correspondence for a plan they may be doing quite a bit of work on behalf of all owners. That doesn’t mean they have control over the plan – the chairperson does not have any more authority than any one else on the committee – but hopefully the work they do is adding value and there may be good reasons why they have taken on an oversized role. Talk things through with an open mind and you should be able to reach a new equilibrium.

William Marquand
Tower Body Corporate
P: 07 5609 4924
E: [email protected]

This post appears in Strata News #420

Question: Can a lot owner’s address for service of notices be changed to an email address? Does this apply to General Meeting notices as well as all other mail?

Can a lot owners address for service of notices be changed to an email address provided the body corporate has passed a motion for electronic notices and the owner has given written instructions to the body corporate manager?

If yes, please confirm this would apply to GM notices as well as all other mail.

Answer: Yes, a lot owners address for service of notices can be changed to an email address.

Yes, a lot owners address for service of notices can be changed to an email address.

This could include any correspondence or notices, including GM meeting notices, minutes etc.

Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in Strata News #377

Question: Can I make communications with the committee private by including words like ‘private and/or confidential and/or privileged’ in whatever I send?

I wish to have written communications (by hard-copy and/or by e-mail) with the committee, including the Body Corporate Manager, about some concerns of mine without these communications forming part of the body corporate records and thereby searchable by other owners under s.205 of the BCCM Act (QLD).

Can I make these communications ‘not searchable’ by including words like ‘private and/or confidential and/or privileged’ in whatever I send to the committee?

Answer: Unfortunately not. They are body corporate records or they are not.

They are body corporate records or they are not.

Adjudicators have always found that things like this, once they hit the body corporate manager’s desk, are body corporate records and available to other owners.

The only way to keep them confidential is to have a chat with the respective members, and even then if they then minute that at a committee meeting, your concerns may become public in the sense that they form part of the minutes themselves.

Frank Higginson
Email Hynes Legal
Visit the Hynes Legal Website

This post appears in Strata News #213.

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