The QLD Strata Magazine | August 2023

The QLD

STRATA MAGAZINE AUGUST 2023

The transfer of correspondence when changing strata managers Page 4 | Tower Body Corporate

Building Innovation – technology helping owners better manage their buildings Page 6 | Sedgwick

Is it reasonable to have a by-law restricting children from riding bicycles?

Page 14 | Strata Solve

About Us LookUpStrata is Australia’s Top Property Blog Dedicated to Strata Living. The site has been providing reliable strata information to lot owners, strata managers and other strata professionals since 2013.

As well as publishing legislative articles to keep their audience up to date with changes to strata, this family owned business is known for their national Q&A service that provides useful responses to lot owners and members of the strata industry. They have created a national network of leading strata specialists across Australia who assist with 100s of the LookUpStrata audiences’ queries every month.

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With a background in Information Management, LookUpStrata has helped Nikki realise her mission of providing detailed, practical, and easy to understand strata information to all Australians.

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Learn more here → https://www.lookupstrata.com.au/about-us/ You can contact us here → administration@lookupstrata.com.au Disclaimer: The information contained in this magazine, including the response to submitted questions, is not legal advice and should not be relied upon as legal advice. You should seek independent advice before acting on the information contained in this magazine.

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Contents 4 The transfer of correspondence when changing strata managers

20 Can the committee share owner’s details without permission?

Chris Irons, Strata Solve

William Marquand, Tower Body Corporate

6 Building Innovation – technology helping owners better manage their buildings Edwina Feilen, Sedgwick

8 Owners are part of the collective claims history for the complex

22 Can the body corporate change the colour scheme of the building?

Todd Garsden, Mahoneys

24 Can we ask caretakers to garden during the day instead of late afternoon?

Frank Higginson, Hynes Legal

Tyrone Shandiman, Strata Insurance Solutions

10 Demand management control and EV charging Allan Parker, Altogether Group

12 Voting requirements for a new parking by-law Todd Garsden, Mahoneys

14

I s it reasonable to have a by-law restricting children from riding bicycles?

Chris Irons, Strata Solve

16 Dangers of underinsuring a strata building Tyrone Shandiman, Strata Insurance Solutions

18 Responsibility of pool technicians and the body corporate for transmission of water born illnesses

26 Does the requirement to maintain an exclusive use area include painting?

Todd Garsden, Mahoneys

28 Who is responsible for repairs to the garage door?

William Marquand, Tower Body Corporate

30 No river view for me!

Michael Kleinschmidt, Bugden Allen Graham Lawyers

32 Instant answers and the productivity paradox Strata Community Association(QLD)

34 The QLD LookUpStrata Directory

Dakota Panetta, Solutions in Engineering

Thanks to our sponsors

SC Seymour Consultants

STRATA COMPLIANCE REPORT SPECIALISTS

The transfer of correspondence when changing strata managers

There is no requirement for body corporate records to be kept or handed over in hard copy.

There is no requirement to keep body corporate records as hard copies or to hand them over in this format.

As you indicate, almost all records are digital these days. When a property changes hands, the transfer is largely digital as well.

I suppose that if you had a particularly malevolent body corporate company that was sour after losing a scheme, they could print out all the documents for the scheme and hand them over, but let’s not go putting ideas in people’s heads.

In reality, most body corporates respect one another when handing over documents. There is a general degree of professional respect and, perhaps too, some karmic understanding.

What goes around comes around.

If we change strata managers, how is the transfer of email correspondence carried out? Is the information handed over in hard copy?

We are thinking about changing strata managers. One issue we have discussed is the records transfer, given that most things are done via email these days.

Are the current managers required to hand over all relevant email correspondence received during the term of their appointment?

Is this transferred in hard copy? Is the process difficult? How is the transfer usually managed?

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This is not to say that handovers are seamless. Information gets lost as it transfers from one manager to another.

If the companies work with completely different record keeping systems, accessing the records is not always easy. In and of themselves, though, these issues probably aren’t sufficient for staying with a company you don’t like working with.

See the BCCM website for more info on record keeping: Queensland Government: Body corporate records.

William Marquand | Tower Body Corporate willmarquand@towerbodycorporate.com.au READ MORE HERE

Building Innovation – technology helping owners better manage their buildings Edwina Feilen, Sedgwick Australia, building consultancy division August 2023 In today’s world, consumers are demanding more for less

In partnership with industry and government bodies and

and want things done quicker and in the most cost-efficient

by working with customers, Sedgwick are working to drive

way. This is a big issue when it comes to the management

societal change, improve environmental impacts and

of strata buildings as you cannot take any shortcuts. With

ensure safer and higher-quality buildings for generations to

an increasing global population, the high demand of built

come. As part of our approach, we are excited to partner

assets in both Australia and across the world has only fueled

with Voltin and bring one of the most advanced artificial

building-related problems publicised in the media.

intelligence (AI) solutions to the strata market which focuses

In Australia, at least 1 in 6 Australians now live in

on identifying issues and defects to building façades.

buildings such as apartments and townhouses, otherwise

No matter the age of a building, the solution provides a

known as strata-titled properties. Nationally, this equates

complete façade health check that will assist owners to

to over 340,000 strata schemes with an estimated value of

identify what underlying issues exist and the remedial

$2.8 million.

action required to resolve them. The AI not only identifies

When looking to safeguard our home, one of the most important and expensive assets we will own in our life, the best practice is to be proactive. Strata owners need to stay abreast of the many challenges currently faced while also futureproofing their asset(s). Although we tend to fall back on past successes experienced using traditional methods, it is important to have an openness to new technologies and innovation designed to solve problems.

but it also classifies and digitally represents building defects, whilst at the same time delivering a lower cost and more accurate solution to automated building inspection. Once the façade image capture is completed, the system then provides the geotagged images in both white light and thermal imagery for algorithmic analysis.

The data is provided in a detailed yet user-friendly report that can be used by owners and or other stakeholders. white light and thermal imagery for algorithmic analysis.

When we combine innovation with technology, it

The data is provided in a detailed yet user-friendly report

can play a pivotal role in how we collect data and use

that can be used by owners and or other stakeholders.

information. When managing strata buildings, it is important to consider several key factors including: • Day-to-day running expenses • Defect identification/remediation • Placement of and rising cost of insurance • Capital works/maintenance plans • Environmental factors (e.g. rising cost of energy) • The financial implications of all the above

caring counts | sedgwick.com

For newer buildings still within their defect liability period or warranty period, this ensures issues are detected and managed early so builders have sufficient time to rectify them. For older buildings, it provides insights into underlying issues that, if left unchecked, could result in further degradation of the building and increased costs associated with remedial repair. Owner corporations/body corporates can then implement maintenance regimes and prepare and budget for capital works programs,

© 2023 Sedgwick

all of which will assist when considering insurance and maintaining the value of the building for future sale and/ or investment.

It’s inevitable over time buildings will require remedial repairs, but it’s how they are dealt with that has the biggest impact. By adopting an alternative approach through innovative thinking complemented by technology,

To learn more about our Building Innovation, contact:

Edwina Feilen Manager, Business Solutions P. +61 424 750 900 E . edwina.feilen@au.sedgwick.com

strata communities will reap the holistic benefits of higher-quality buildings, giving consumers a voice, forcing behavioral change and providing financial security.

S E D G W I C K ’ S B U I L D I N G C O N S U LTA N C Y S E R V I C E S For the past 20 years we have provided expert building consultancy services. As the largest home warranty consultancy specialist team in Australia, Sedgwick has extensive capability in forensic building consultancy, Technical Inspection Service (TIS), policy assessments, preparation of scopes of work, tender validation processes and construction management.

Our specialty is the management of remediation work within the residential, multi-storey residential and mixed-use strata complex landscapes.

To learn more about our integrated and customised solutions, visit S E D G W I C K . C O M caring counts | sedgwick.com

© 2023 Sedgwick

Owners are part of the collective claims history for the complex

An owner caused major damage to their garage. The body corporate insurer paid for repairs, and the owner paid the excess. The claim resulted in a substantial insurance increase at renewal time. Insurance did not recover the costs from the driver because the driver was an owner in the building. Is this correct?

An owner within our complex of 36 townhouses misjudged their garage door opening and caused significant structural damage to the cost of around $30,000. The body corporate insurer paid for repairs, and the owner paid the excess.

When the policy fell due for renewal, the premium had increased significantly, and insurance advised the body corporate that the increase was partly due to the claim. We asked the insurer they didn’t recover costs from the owner’s vehicle insurance. They responded that this would not be possible since the owner caused the damage and was effectively a policyholder for the body corporate insurance policy. Had any other third party caused the damage, they would have pursued the driver’s insurance for cost recovery. Can you please advise if this is correct?

The insurance is held by the body corporate.

Is this not a separate legal entity from the owner and their vehicle insurer? Could the body corporate insurer recover the repair costs from the owner’s vehicle insurance?

As the lot owner contributes towards the premium, they are an insured party under the policy.

Yes. If a non-insured third party impacted the strata property, the insurer would have pursued a recovery action against the at fault party to recover the costs.

In this instance, we believe the insurer was correct in advising that they will not pursue a recovery against a lot owner or their vehicle insurance.

As the lot owner contributes towards the premium, they are an insured party under the policy.

Although the strata insurance is in the name of the body corporate, strata policies include specific definitions of “you” that include lot owners and the interest of members of the body corporate.

Insurers are not allowed to lawfully pursue a recovery against someone they insure for a claim they have already paid.

In that essence, it would be the same if you owned a freestanding home, you impacted your garage door, and your home insurer pursued recovery against you for the damage.

While we understand the concern over additional costs associated with a claim, it’s important to consider the implications when buying a property in a strata development. When you choose to own in a strata, you become part of the collective claims history for the complex, which includes claims that may have no direct connection to you. This is a risk that must be considered when deciding to own a property in a strata development.

Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au READ MORE HERE

8 www.lookupstrata.com.au

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Demand management control and EV charging

In a building, three electric vehicle owners were given approval to install their personal EV charging stations in their bay. Would the chargers have some built in demand management control?

If you’re thinking about EV charging, you need to have the ability to control and manage that charging system.

That’s the critical issue with these AC accelerated charges. They’re the chargers that are being sold and installed by Tesla etc. Most of these are enabled with demand management, and most of them can be programmed to have a maximum charge rate, etc. But they don’t consider the owners corporation’s usage. Owners corporations aren’t technically savvy enough to recognise the issue and impose conditions on the charger installations.

Chargers get installed and they have no demand control. That may be fine when you’ve got one or two EV chargers. But to 10 www.lookupstrata.com.au

put it in context, a 7.2 kilowatt charger, which is the average accelerated charger for single phase, is 7.2 kilowatts at peak charge. That’s the equivalent of two and a half units’ demand.

For every car, it’s two and a half lot’s power consumption. The case study on pages 17 and 18 of the presentation shows how demand varies by, say, climatic conditions or time of day, but there’s no diversity factor in a charger.

If it’s on, it’s charging. It’s going hard.

Unless you have centralised control, you will be subject to demand. The 2.4 kilowatts options pose an issue as well. It’s just the scale. More cars will be able to charge before you get a problem, but you will eventually get that problem.

For strata properties, if you’re thinking about EV charging, you need to be able to control and manage that charging system. This way, no harm and no cost impost is placed on the building as a result of the aggregate charge.

Allan Parker | Altogether Group aparker@altogethergroup.com.au READ MORE HERE

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Voting requirements for a new parking by-law

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We introduced a new by-law to allocate one car space per garage and 12 visitor parking bays. What voting is required? Do we need to register the by-law with the local council?

I have recently become chairperson of our body corporate committee. Our 24 lot complex was built in 1991. In 2017, through a special resolution at our AGM, all lot owners had the chance to vote to introduce a by-law to allocate one car park per lot within each garage and 12 visitor car parks.

A lot owner insists 100% of owners were required to agree with the change. I believe we only needed two-thirds of voters to agree.

The lot owner believes the by-law is invalid as it isn’t registered with our local council.

Is the by-law valid?

There are a few considerations at play here.

There are a few considerations at play here.

By-laws can be changed by special resolution (two-thirds of those who vote in favour and not more than 25% of owners or CSLEs voting against the motion). However, the body corporate cannot:

2. r esolve itself to determine the number of visitor car parks (usually regulated by the council’s development approval conditions).

The body corporate should: 1. r eview the applicable council’s development approval conditions – to determine if its proposed car parking arrangements are permitted and, if not, seek council approval; and 2. a ssuming there are no issues with council – consider by resolution without dissent any allocation of car parks.

Todd Garsden | Mahoneys tgarsden@mahoneys.com.au READ MORE HERE

1. by special resolution – allocate car parks to lot owners’ for their exclusive use (this requires a resolution without dissent – which is no lot owners voting against the motion). This is then registered with the Titles Office; or

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Is it reasonable to have a by-law restricting children from riding bicycles?

Our body corporate has a bylaw restricting children from riding bicycles or skateboards on common property. Is this bylaw unreasonable? How can we get it changed?

I have purchased a strata property in the Moreton Bay region. On reading the by-laws, I discovered a by-law specifically relating to: 2. Children playing on common property.

Lot owner is personally responsible for the conduct of children at all times while playing on common property. This responsibility shall include ensuring said children: 2.2 Do not ride skateboards, skates, gocarts, bicycles or similar apparatus at any time.

Is this by-law unreasonable because it specifically targets children and no age range applies? My 12-year-old owns a bike and scooter. According to this by-law, they will not be able to ride either.

When I asked the strata manager about this by-law, I was told it was the developer’s by-law; it was a standard by-law across Queensland; and that it was to protect the body corporate against any claim of liability.

How can I get an unreasonable by-law like this changed? I was informed all motions/ agenda items for the AGM had to be submitted by the end of January. I settled the property beginning of April, and AGM is not scheduled yet.

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Very generally, a by-law that outright prohibits something would, in most cases, be invalid.

It is not possible to be definitive and say this is ‘unreasonable’. What I can say is that, very generally, a by-law that outright prohibits something would, in most cases, be invalid.

Then you have the practicalities to consider: how would these by-laws get policed? If, for example, it is not your child but a friend of your child’s, then who will identify that? Who measures the noise? Is there a register? And what is a ‘child’ here anyway? It isn’t defined in the by-laws you have sent through.

This leads to your question about how by-laws get changed. They get changed at a general meeting and usually require approximately two-thirds support to get passed. Owners are entitled to put motions to a general meeting. If you do not make the timing cut-off for your AGM, you could look at having an extraordinary general meeting called, which requires the signatures of 25% of owners. So, in other words, if you do not make the AGM cut-off, you will have to start canvassing support from other owners to get the outcomes you want.

This is general information only and is not legal advice.

Chris Irons | Strata Solve chris@stratasolve.com.au READ MORE HERE

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Dangers of underinsuring a strata building

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What are the dangers of underinsurance? This is particularly relevant in the current climate where valuations are rapidly skyrocketing.

The danger of underinsuring is that you will have a major or total loss and not be covered.

There are a couple of dangers with underinsurance. First and foremost, by law, you must ensure your building for full replacement value in every state and territory in Australia. Failing to do so can result in fines and penalties for the owners corporation.

I’ve seen a building that didn’t get a valuation every five years and was underinsured and it was a total loss. In the event of a total loss, unfortunately, the body corporate or owners corporation has to make up the losses for

that claim. The danger of underinsuring is that you will have a major or total loss and not be covered.

Most property policies have a clause that says if your insurance value is 80 percent or below what it should be, the insurance company will only pay a portion of that claim if it’s a partial loss. With strata Insurance, because you’re required to insure for full replacement value, that clause is not part of the policy.

Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au READ MORE HERE

Responsibility of pool technicians and the body corporate for transmission of water born

illnesses

In QLD, is the pool maintenance operator at a strata complex required to be certified, qualified and or insured against any water born illnesses that arise due to their workmanship.

Is the body corporate or pool maintenance operator liable if legal wrongs arise?

Assuming the body corporate was doing all that it reasonably could and could evidence this, there would likely be minimal grounds to state they were negligent.

In QLD, a pool technician that services and maintains a swimming pool must be licensed appropriately with the QBCC. A pool technician is responsible for the maintenance of the pool, i.e. replacing broken equipment and adjusting and balancing chemicals.

All pool technicians, whether operating as sole traders or a company, must hold the appropriate licenses and public liability insurance to cover any accidental loss, injury or damages.

Note, general cleaners used to clean the pool area and scoop out leaves etc, are not required to hold a license class but should not be responsible for maintaining chemical balances.

Regarding liability arising from a waterborne illness, this scenario would be trickier to navigate and could vary from case to case.

Firstly, to bring on a public liability claim against the body corporate (the pool owner), an individual would need to prove, through a doctor’s diagnosis, that they acquired the waterborne illness and it was transmissible through swimming pools.

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Many illnesses can be contracted from many environments available to the public, i.e. public bathrooms, shopping centres, schools and kindergartens.

This alone would be a very difficult stage of the claim to prove.

If the individual (and their legal advisor) does indeed believe they have a basis for a claim, they would usually sue the body corporate (the owner of the facility) and anyone else involved in maintaining it (such as the pool technician, caretaker, hotel operator, building manager etc.).

This scattergun approach gives the individual the highest chance of a substantial settlement from each party’s insurance policy without needing to go to court.

At this point, the pool technician would likely present their cleaning regime, the historical chemical balances for the pool and the work they have done, indicating that they had done all that was necessary to keep the pool balanced as the facility owner engaged them to do.

It is important to understand that the chemical balance of a pool can change levels overnight in QLD, with tropical rains diluting the chemicals and PH balances changing from enough users entering with sunscreen.

The courts would need to consider the inherent risks we as individuals accept when we use a swimming pool, such as the risk of drowning or illness from swallowing chlorinated water and if we inherently accept the possibility of illness from using a shared pool.

Assuming the body corporate was doing all that it reasonably could and could evidence this, there would likely be minimal grounds to state they were negligent.

Dakota Panetta | Solutions in Engineering dakotap@solutionsinengineering.com READ MORE HERE

ARE YOUR OWNERS ADEQUATELY INSURED? INSURANCE REPLACEMENT VALUATIONS AUSTRALIA WIDE

If the claim does make it to court, the individual will need to be able to prove that the body corporate failed a duty of care (acted with negligence) to minimise the reasonably foreseeable risks of injury/illness. Again, this will be a very difficult threshold, particularly if the body corporate can show regular maintenance invoices, pool chemical purchases, and a pool cleaning regime suggesting they did all that was reasonably practicable to minimise risk to patrons.

WWW.RAWLINSONSWA.COM.AU

Can the committee share owner’s details without permission?

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 20 www.lookupstrata.com.au

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 ‘optout’ for those who do not want their details publicly available.

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

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.

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 chris@stratasolve.com.au READ MORE HERE

The ‘opt-out’ scenario you describe is also in a grey area. Again, that is not expressly

Strata Solve helps people untangle and resolve their strata issues. Sounds simple when you put it like that, doesn’t it?

Director Chris Irons (pictured, with his strata-approved greyhound Ernest) has an unrivalled strata perspective. As Queensland’s former Body Corporate Commissioner, Chris has seen and heard virtually every strata situation and nuance. He knows that while legislation provides a framework, there are many ambiguities to navigate through and in which pragmatism, commonsense and effective communication are vital.

As an independent strata consultant, Chris provides services which are all about empowering owners, committees, managers, caretakers, and others, to protect their strata interests. With a high-profile media and online presence, and as an accredited mediator, Chris is also able to carefully ‘read the room’ and craft the right narratives in even the most complex strata situation.

Strata Solve is not a law firm. Chris instead thinks of steps you can take before you embark on lengthy, costly, and stressful legal proceedings. Regardless of the client, all people in strata have one thing in common: their substantial investment in the strata scheme. Strata Solve prioritises that investment in each tailored solution we provide.

Get in touch to find out more.

email: chris@stratasolve.com.au web: stratasolve.com.au

Can the body corporate change the colour scheme of the building?

Our body corporate wants owners to change the colour scheme of our federation building. Is it lawful for the body corporate to make owners change the colours of the outside of their houses?

Our body corporate, for maintenance purposes, wants owners to repainted the timber trims and roofs of their townhouses in a new colour scheme. No new colours have been decided on yet.

The complex was built in brick Federation style and has red, green and cream-coloured paint with some ochre-coloured timber. I object to the changes the body corporate want us to make as I feel it will detract from the original intention of the building style.

Is it lawful for the body corporate to make owners change the colours of the outside and roofs of their houses?

If the lots are in a standard format plan, there is less ability for the body corporate to control the colour scheme.

The answer will largely depend on whether the lots are created in either a: 1. building format plan such that the outside of the buildings that are being painted is common property; or 2. standard format plan such that the outside of the lots are part of the lot.

Building format plan A change to the common property colour scheme amounts to an improvement to common property (as an improvement is broadly defined as a change). Given the cost of the painting works, I suspect that it will be beyond the committee’s spending limit such that a general meeting is required.

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The body corporate as a whole at a general meeting can approve an improvement (or colour scheme change) by:

• the condition of the existing paint (and whether the body corporate can compel owners to carry out painting); and

• Ordinary resolution if the cost is between $300 – $2000 for each lot in the scheme; or

• the by-laws in force for the scheme (and whether the body corporate has a by-law that allows it to regulate the paint colour).

• Special resolution if the cost is more than $2,000 for each lot in the scheme (or the body corporate has already passed one ordinary resolution improvement in the same financial year).

The body corporate’s decision to change colours must be considered reasonable. It may be difficult for the objector to say that changing the colour scheme is unreasonable without some level of architectural or design advice.

Standard format plan If the lots are in a standard format plan, there is less ability for the body corporate to control the colour scheme. However, it would depend on:

Todd Garsden | Mahoneys tgarsden@mahoneys.com.au READ MORE HERE

Can we ask caretakers to garden during the day instead of late afternoon?

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Our caretakers of a 50 unit complex only carry out gardening and maintenance work between 4 and 6 pm.

Can we get them to carry out work when most people are away from their units during the day instead of late in the afternoon?

Our caretakers of a 50 unit complex only carry out gardening and maintenance work between 4 and 6 pm. While these hours are allowable under construction noise regulations of Brisbane City Council, I understand there may be some relief under nuisance noise provisions of the environmental legislation.

Is there any way we can get the caretakers to carry out work during the day instead of late in the afternoon when most residents have returned home?

Frank Higginson | Hynes Legal frank.higginson@hyneslegal.com.au READ MORE HERE

The caretaker agreement does not mention when they are required to do the work.

Without a specific provision in the caretaking agreement, I don’t think there is anything you can do.

Off the cuff, I don’t think there is anything you can do to force the issue absent there being a specific provision in the caretaking agreement (which would be very unusual).

From the caretaker’s side of things, it probably makes sense for them to work in the later afternoon to avoid the main heat of the day. There would be no harm in having a gentle conversation about requesting a change of work hours, but I wouldn’t do that in too forceful a manner because there is nothing you can demand as of right.

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Does the requirement to maintain an exclusive use area include painting?

26 www.lookupstrata.com.au

If the grant of exclusive use areas requires the beneficiary to maintain the exclusive use area in good condition, would this include re-painting the boundary surface?

The Osprey adjudication confirms the grant of exclusive use areas for the car park stopped at the surface of the boundary wall and did not intrude into the wall.

If the grant of exclusive use areas requires the beneficiary to maintain the exclusive use area in good condition, and if the walls are painted, does this responsibility include re-painting the boundary surface?

The maintenance obligations (and conditions) that attach to an exclusive use grant are not the same for each exclusive use allocation.

The maintenance obligations (and conditions) that attach to an exclusive use grant are not the same for each exclusive use allocation. There are default positions under the legislation that will apply. However, these default positions can be displaced depending on the precise wording of the by-law (and any conditions).

A good analysis of this is made by Adjudicator Rosemann in Sunrise Sea Luxury Apartments [2019] QBCCMCmr 111.

Accordingly, without a detailed review of the exact wording of the by-law, it is not possible to confirm if there is an obligation to paint a wall adjoining the exclusive use allocation.

Todd Garsden | Mahoneys tgarsden@mahoneys.com.au READ MORE HERE

Who is responsible for repairs to the garage door?

expense. It’s a routine request, and most of the time, the body corporate should be able to provide a definite answer supported by relevant documentation. If the situation is unclear, they should be able to provide reasons why and possible pathways for resolution.

I’m unsure what you mean when you say the manager is ‘avoiding the issue’. Are they just not responding to you, or are they being evasive in not talking about the matter? Have they not given you an answer because they don’t have one from the committee, or have they not presented the issue to the committee?

I had to replace our garage door running track. We are lot owners. I have submitted the paid account to our body corporate manager for reimbursement. The strata manager is avoiding the issue.

Am I responsible for this cost, or is the body corporate?

Responsibility for the costs of repairing the door will depend on whether it is common property or not.

Responsibility for the costs of repairing the door will depend on whether it is common property or not.

Multiple factors can affect this, including what module your scheme is in, where the boundaries of your property are and any bylaws your scheme may have.

If unsure, you should get a copy of your CMS and by-laws and check the details against the relevant guide for responsibilities provided by the Commissioner’s office. See the link below for further information.

Still, providing this advice is generally part of the body corporate manager’s job. They should be able to make it clear to both you and the committee who is responsible for the 28 www.lookupstrata.com.au

Whatever the situation, it seems there are two separate issues here: the reimbursement and the performance of the body corporate manager.

For the reimbursement, you could push forward the issue by contacting the committee directly or submitting an owners motion to the committee for them to vote on the approval.

If you do this, they have to decide within six weeks. That may be slower than you want, but at least it will bring about a resolution.

If the manager is causing the problem, you could try speaking to higher levels of management within their organisation. Perhaps you could speak to committee members or other owners to determine if this is a regular issue. If the problems are significant, you may need to look at changing managers.

One final consideration here is that if a repair is the responsibility of the body corporate then you should advise the body corporate of the necessity for the repair in advance and allow it to arrange the repairs. It may have been simpler for you as an owner to get the repair done and seek reimbursement after the fact, but the body corporate is not obliged to approve these applications, and there are occasions when applications are rejected: Body corporate maintenance.

William Marquand | Tower Body Corporate willmarquand@towerbodycorporate.com.au READ MORE HERE

SC Seymour Consultants

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No river view for me!

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Most unit’s in my block have fabulous river views. My view is blocked due to a few large shrubs. The committee will not trim the shrubs. What can I do?

I reside in a block of units directly across from a river. The unit block is ironically named ‘Riverview’. I reside on the raised, end ground floor apartment in a block with seven units on the same level. All other units have shrubs and plants trimmed well below their balcony rails. They have fabulous river views. However, I have three large shrubs in front of my unit that are approximately 30cm to 60cm above my balcony rail and impede my view of the river.

I have requested these shrubs are trimmed below my railing. However, the committee said the shrubs looked nice from the street and refused to trim them. This is causing me stress. How do I get the shrubs trimmed?

Follow these eight steps.

In the words of the immortal Kamahl, ‘Why are people so unkind?’. I suspect Kamahl was making a direct reference to your committee.

If I was you, this is what I would do assuming those plants are on the common property: 1. Search the Council records, get the development approval and check for any landscaping plan.

2. Check the local laws in the Shire and see if there is anything relevant.

3. Check the by-laws to see if they have anything relevant.

4. Go back over all your old photos, and find any where the bushes were trimmed to the lower level, were not there, or were another species that were not causing a problem (i.e. evidence that in times past, view interruption was not an issue).

5. Search the body corporate records for the gardener’s contract and any communications dealing with the issue.

6. Depending on the results of those investigations, lodge an owner’s motion to be voted on by the committee to have the bushes trimmed and to keep them trimmed.

7. If the committee votes ‘no’, and you have evidence that the bushes were, in fact, not an issue in the past (for example, they were trimmed lower, or a different species etc.), and you think you can prove that your use and enjoyment of your land is subject to ‘substantial, ongoing and unreasonable interference’ by virtue of the issue, then lodge a dispute under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011, against the body corporate as the ‘tree keeper’.

8. In the alternate, set up a conciliation application against the body corporate for making an unreasonable, and thus unlawful, decision to refuse the trimming.

Now, anyone who gets to steps 7 or 8 should get a lawyer on board before they start the proceeding!

Michael Kleinschmidt | Bugden Allen Graham Lawyers michael.kleinschmidt@bagl.com.au READ MORE HERE

Instant Answers and the Productivity Paradox There is no doubt that we live in an age where we are under enormous pressure to respond immediately to any communication we receive; especially client communications (or those from teenage children looking for money!). All of this is of course due to our increased accessibility fuelled by the technology age.

Whilst it is important to embrace technology and understand the benefits it can have, only a fool would deny many of the drawbacks. Email, mobile phones and Zoom are all fantastic tools if used correctly. But many of us, strata managers included, do not use tech to manage. If we are honest with ourselves, we are, in fact, ‘managed’ by tech.

I asked my SCAQ professional strata members how many of them felt tired, burnt out, exhausted and drained because the clients they service expected (demanded) that a response to an email must be instant or near instant. After all, it can be… so why shouldn’t it be? The response was unanimous – all felt tired and exhausted.

This has genuinely disturbed me, and it has to stop if we are to build a thriving sector.

We all know people who have left the industry due to constant and excessive client demands. When you conform to these client expectations, work can get very tough, very quickly.

For a few reasons, I would urge members to take stock of a few realities and seek better balance in their work. I would also encourage business leaders very strongly to take heed of some interesting economic and psychological observations that support some practice change - given they are borne out by extensive research and data.

One observation is Solow’s Paradox. To put it simply, Solow’s Paradox is the observation that digital tools and communication have not enhanced productivity over the past 40 or so years like previous society shifting technology (think the mass production line, or the invention of electricity). Why this is occurring is disputed and discussed at length, but ‘why’ is not nearly as important as understanding the ‘what’. What is clear, is that firing off relentless emails, responding to text messages and calls whilst out and about and digitisation for its own sake isn’t making you more productive or helping enhance the value you deliver to your clients.

This isn’t to say that you should leave your inbox full, and client calls unanswered but begs the question, how do you manage the constant communication? This brings me to a second important learning - Parkinson’s Law. To give a quick summary - this observation states that often the amount of time allocated to a task is the amount of time that it will inevitably take to complete a task. If you give yourself an hour to workout in the gym with a specific set of exercises in mind, you’ll get it done in an hour. If you allocate two hours, it will likely take two to do the same set of exercises. This applies equally to telephone responses and emails. Rather than being available and accessible all the time, give yourself a dedicated response time of say, one hour per day and respond efficiently.

Sure, one hour may not be enough, but the point is that if you reset the expectation of clients that you respond immediately to a new response pattern, they eventually learn this new pattern, and you feel more in control and less overwhelmed. And importantly, they know you will respond – just not immediately.

The epidemic of burnout and attrition of strata managers is a ‘cause and effect’ situation in our industry, and it must end. We have to collectively say that the current trend is not acceptable and not sustainable.

Losing quality, talented people from our industry is an issue and the next generations of employees won’t tolerate it.

I didn’t write this piece to give everyone bits of interesting information about psychology, technology and going to the gym. These observations work for all pursuits, and I encourage everyone from business leader to early career learners to implement some of these rules to their workplace to try and ensure that you can have a long prosperous career in the sector.

Whilst this may not change the world, we can hope that by implementing some sensible changes to how we frame expectations, we can get a better work/life balance. We need to retain talented, exciting people in the strata sector and respect everyone’s right to a balanced existence and protect their mental health.

Laura Bos General Manager

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