FEBRUARY 2023
Can the building manager use a drone to conduct balcony audits?
Page 14 | Strata Solve
Liability for organising the towing of cars
Page 18 | Hynes Legal
Approval for installation of a Starlink satellite dish
Page 32 | Stratum Legal
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.
Strata information is distributed freely to their dedicated audience of readers via regular Webinars, Magazines and Newsletters. The LookUpStrata audience also has free access to The LookUpStrata Directory, showcasing 100s of strata service professionals from across Australia. To take a look at the LookUpStrata Directory, flip to the end of this magazine.
Nikki began building LookUpStrata back in 2012 and officially launched the company early 2013. 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.
Nikki shares her time between three companies, including Tower Body Corporate, a body corporate company in SEQ.
Nikki is also known for presenting regular strata webinars, where LookUpStrata hosts a strata expert to cover a specific topic and respond to audience questions.
Liza came on board in early 2020 to bring structure to LookUpStrata. She has a passion for processes, growth and education. This quickly resulted in the creation of The Strata Magazine released monthly in New South Wales and Queensland, and bi-monthly in Western Australia and Victoria. As of 2021, LookUpStrata now produce 33 state based online magazines a year.
Among other daily tasks, Liza is involved in scheduling and liaising with upcoming webinar presenters, sourcing responses to audience questions and assisting strata service professionals who are interested in growing their business.
Liza Jovicic Sales and Content Manager
4 Should caretakers regularly clean the gym equipment?
William Marquand, Tower Body Corporate
6 Wait now, pay later.
Lannock Strata Finance
8 Changing the landscape of consumer protection
Sedgwick
10 Responsibility for repairs: Should we rely on what the body corporate says?
Michael Kleinschmidt, Stratum Legal
12 Do we need Workers Compensation insurance?
Tyrone Shandiman, Strata Insurance Solutions
14 Can the building manager use a drone to conduct balcony audits?
Chris Irons, Strata Solve
16 Body corporate manager’s delay threatens apartment sale
Todd Garsden, Mahoneys
18 Liability for organising the towing of cars
Frank Higginson, Hynes Legal
20 Who is responsible for maintaining skylights?
William Marquand, Tower Body Corporate
22 Body corporates and apartment owners urged to check flexi-hoses to avoid costly damage
SURE Insurance
24 Accounting for our solar panel rebate Rod Laws, TINWORTH & CO
26 Can our strata manager refuse my request?
William Marquand, Tower Body Corporate
28 Changes to caretaker agreement causes building access issues
Todd Garsden, Mahoneys
30 A year of change for strata in Queensland
Hynes Legal
32 Approval for installation of a Starlink satellite dish
Michael Kleinschmidt, Stratum Legal
34 In the Act, what does “not permit” mean?
Todd Garsden, Mahoneys
36 Who holds the body corporate records?
Peter Hunt, Mathews Hunt Legal
38 Professionalism - Not just a buzz word in 2023
SCA (Qld)
40 The QLD LookUpStrata Directory
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.
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 willmarquand@towerbodycorporate.com.au
There has been a lot of discussion about record increases in the price of real estate recently but there is a more pressing issue that strata owners need to be aware of – the rising cost of construction works.
A combination of booming demand, labour shortage, material shortages and supply chain disruptions are creating the perfect storm for increased construction costs.
According to CoreLogic’s Research Director Tim Lawless, the heightened construction activity and rising costs experienced across Australia won’t be going away soon and will likely cause affordability challenges for owners across the country.
“The quarterly rate of growth in construction costs is happening
everywhere and is not restricted to one city or state, it’s a national trend,” he said. “This construction cost inflation could continue for another 12 to 18 months. It’s unlikely the industry can absorb a cost increase this significant into their margins and higher construction costs will ultimately be passed on to the consumer, placing further upwards pressure on the price of a new dwelling or renovation.”
“The quarterly rate of growth in construction costs is happening everywhere and is not restricted to one city or state, it’s a national trend,”
Already we’ve seen just how much pressure
is being placed on the construction industry, with Probuild and Condev both going into liquidation in recent weeks.
In short, costs are going up and the construction industry is buckling under the pressure.
The more you delay, the more you will pay.
Owners corporations who choose to delay any rectification, maintenance or uplift work on their property may be setting themselves up for a shock later on.
Regarding funding of any works, the corporation always has three options: to accumulate a Maintenance Fund over time, to have a Special Levy or to Borrow (or a combination of these three methods).
This article is brought to you by Lannock Strata Finance.
It takes time to accumulate moneys in a Maintenance Fund. Special Levies should be a quick solution but will be delayed if there are owners who find the cash flow impost too large.
“In short, costs are going up and the construction industry is buckling under the pressure. ”
A strata loan is immediate, unsecured and does not involve a mortgage, personal financials or guarantees.
So, what’s the right decision?
As with any big decision, it’s important to be informed. If your clients are looking at rectifying
defects or considering maintenance or renewal/ uplift projects over the next few years, it will be important to discuss with them the implications should they choose to delay the works.
Do you have a strata project that is needing finance?
We can help you with the finance you need for your next strata project.
Having operated for 20 years, our friendly team have the knowledge and experience to deliver the funds you require.
Life comes with unexpected surprises, not all good. The same can be said for the construction industry, frequently plagued by supply chain disruptions, cashflow constraints, labour shortages, cost increases and defective construction. The latter often leaves consumers to pursue contractors on their own, with few options to address these issues, or feeling that costly litigation is their only recourse.
That said, the industry appears to be shifting towards a more consumer-centric market. With over 340,000 strata schemes across the country, owners have the right to expect a quality product.
For the first time in Australia, purchasers have an evidence-based rating to make an informed choice when purchasing a property. The independent construction industry rating tool - iCIRT- helps purchasers know which businesses are best equipped to build quality assets.
Created by Equifax in conjunction with the NSW government, key industry bodies and consumer stakeholders, iCIRT will improve trust and transparency in the construction industry. Trustworthy constructors that attain three gold stars or higher (maximum five) are recognised on a register at www.buildrating.com
To obtain a gold-rating, constructors must participate in an independent and rigorous review of their entire business. This process rewards those that perform highly while calling attention to those that don’t.
Karen Stiles, Executive Director of the Owners Corporation Network (OCN), confirms they support a simple star rating system to help purchasers make better choices, and reduce the risk of dealing with building defects. To drive proactive change, we need to work together — consumer, industry and government — by investing in and taking advantage of the programs available.
High-rise residential strata buildings have been in the spotlight globally, with highly publicised structural failures resulting in assets being condemned, buildings deemed uninhabitable, and even injury and deaths. In 2021, the NSW building commissioner’s office indicated that 39% of NSW buildings presented serious defects. Extrapolated nationally, that alarming figure would indicate nearly 80% of new apartments could suffer from serious defects.
In response, Resilience Insurance introduced latent defect insurance (LDI). iCIRT-rated developers can earn additional financial benefits, further protecting consumers with a 10-year insurance policy. This could change how Australia delivers quality buildings to consumers.
Corey Nugent, CEO at Resilience Insurance, explains that as one element of recent building industry reforms, LDI drives improved consumer confidence. More importantly, consumers will discover their bargaining power, demanding transparency in delivery and security of built assets.
LDI provides cover against loss from physical damage arising out of inherent defects within 10 years of the completion date. The cover extends to issues relevant to the structural works and building envelope, including waterproofing.
This is a new era of claims management. By monitoring performance throughout construction, LDI gives consumers an additional layer of quality assurance, ensuring buildings are constructed to the appropriate standards and comply with design and engineering specifications.
To navigate this ever-changing landscape, we must continue to adapt and challenge the norm — even as we’re asked to do things faster and more costeffectively, whilst keeping the consumer front of mind.
In working alongside Resilience Insurance, Equifax, and consumer advocacy groups like the OCN, Sedgwick has become a trusted partner in the industry.
We have been providing expert building consultancy services for the past 20 years. As the largest home warranty specialist consultancy firm 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. We specialise in managing remediation work within the residential, multi-storey residential and mixed-use strata complex landscapes.
For more information, please contact sales@au.sedgwick.com
James McIntosh National manager, technical services
M. +61 420 959 938
E. james.mcintosh@au.sedgwick.com
Morris Mellinger Construction manager
M. +61 408 371 353
E. morris.mellinger@au.sedgwick.com
During weather events, our old building leaks through the windows leading onto private access balconies. Who is responsible for the repairs?
We are an old building from the 1980s. During weather events, we experience damaging leaks (walls, carpet etc) through the windows leading onto private access balconies.
Our body corporate maintains that replacement of the windows is the owner rather than the body corporate’s responsibility as on the lot plan these balconies are included in the lot area of each unit. Also, the balconies do not lead onto a common area. Who is responsible for the repairs?
I cannot advise (you have to engage and pay me for that!) but there are some ways for you to work out the correct position.
First, don’t rely on what a body corporate says; get a copy of the registered plan that describes the lots (i.e. the units). You can get a copy from Titles Queensland.
Next, see what sort of plan type it is; odds are that it will be a building units plan. Then, find where on the plan the windows would be. Are they within the heavy black line that describes the boundaries of the lot? If there is a balcony that is part of the lot, then the heavy black line will include the balcony, and there will be a fainter black line that shows where the (external) wall is, between the inside of the lot and the balcony. If the windows are located inside the lot boundary (not inside the lot, but inside the lot boundary), and the plan is a building units plan, then the most likely outcome is that the lot owners are responsible for the windows.
NOTE that a lot owner who does not maintain their windows can get into some real trouble if water comes in and damages the common property or someone else’s lot. Best to get some considered legal advice, and then take action to maintain the windows if you are liable to maintain them (and not the body corporate).
Michael Kleinschmidt | Stratum Legal info@stratumlegal.com.au
At a recent general meeting of our QLD body corporate, I queried an ongoing Workers Compensation insurance policy. Why do we have it and who is it for? We have no employees or volunteers. Our body corporate manager admitted they didn’t know why we required the Workers Compensation insurance policy. Why is this required? Is it in case a contractor doesn’t have insurance and we get sued?
Under the WHS Act, a body corporate which uses its common areas for residential purposes only and does not employ a worker under a contract of service is not regarded as a PCBU.
WorkCover Insurance is designed to cover employees defined by the Workers’ Compensation and Rehabilitation Act 2003. In most cases, an employee works under an employment contract and receives PAYG wages.
Contractors that are not deemed employees do not fall under Workcover and the Strata Insurance would be the policy designed to provide cover for claims made by contractors for injury.
Please see the below applicable excerpt from the WorkSafe website
Under the WHS Act, a body corporate which uses its common areas for residential purposes only and does not employ a worker under a contract of service is not regarded as a PCBU. Note, that, where a body corporate engages a person to do repairs (e.g. an electrical contractor), this does not make the body corporate a PCBU for the purposes of the WHS Act.
Tyrone Shandiman | Strata Insurance Solutions tshandiman@iaa.net.au
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?
‘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 chris@stratasolve.com.au
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.
You could potentially put a motion to a general meeting to prohibit use of drones, although I’d urge caution on that.
During the sale of our apartment, the purchaser’s building report indicated a leak in the roof. The body corporate manager’s delay in securing a plumber has placed the sale in jeopardy. Can we insist a plumber attend immediately?
We are in the process of selling our apartment The purchaser instigated a building report. The report came back showing water damage in the ceiling on the top floor which is coming from the roof and water damage on the wall in the laundry.
We are waiting for the body corporate manager to arrange for a plumber to inspect the roof, however, we have had a specialist plumber inspect the laundry and they have found that it is an external issue whereby there is a major leak in the common downpipe and awning which is permeating the concrete into our apartment.
The body corporate manager has advised they can’t get a plumber to attend for weeks. This has placed the sale in jeopardy. We have paid $3000 in advertising costs to sell the property. Can we demand that a plumber attends immediately?
Also, if the report indicates it is most definitely a body corporate issue, can the committee refuse to undertake the repairs?
You can demand a plumber to come sooner but that does not mean it can necessarily take place faster if a plumber is not available.
Yes – a lot owner can demand a plumber to come sooner but that does not mean it can necessarily take place faster if a plumber is not available.
If the reports clearly show the defect and cause of the water ingress relates to an item that the body corporate is responsible for repairing, then the body corporate has an obligation to carry out the necessary remedial works – there is no discretion available.
Todd Garsden | Mahoneys tgarsden@mahoneys.com.auREAD MORE HERE
Mahoneys has a dedicated team of lawyers with experience in assisting bodies corporate with:
management rights assignments and variations
common property subdivision and sales
general disputes and advice
community management statements
by law enforcement and by law reviews
selling schemes to developers
caretaker performance issues
debt and levy recovery
lot entitlement issues
building defect disputes
building management statements
LAAN access notices
defamation
neighbouring development issues
As building managers, we’ve been instructed by the committee to organise the towing of cars if they stay in visitor parking longer than 2 hrs. Can an owner of a towed vehicle take action against us?
My body corporate committee appointed a car towing company to tow cars from our visitor parking if the car is parked for more than 2 hours. There is a sign displaying 2 hours maximum parking.
We are the building managers. The committee has verbally instructed us to place a notice on cars warning the car will be towed after the 2 hour time limit has been exceeded. We then email a photo of the car and a request to tow to the towing company.
Our agreement states only that we are to clean and monitor visitor parking. There is no mention of towing, taking photos and sending towing requests to the towing company.
We are concerned an owner of a towed car will take action against us. Where do we stand?
There is scope for an owner to involve you in any claim they may make against the body corporate.
I really don’t think people should be knowingly involved in actions they know are unlawful. I would do it gently, but as a manager, I would tell the body corporate that you won’t instruct the towing company for fear of repercussions to you personally. That could even be on written legal advice – which makes it very hard to argue with.
But to answer the question – yes, there is scope for an owner to involve you in any claim they may make against the body corporate. The merits of that are something else entirely through.
Frank Higginson | Hynes Legal frank.higginson@hyneslegal.com.auREAD MORE HERE
We have purchased a rooftop apartment with skylights. These were built on the original building plans. Who is responsible for the upkeep or any damage to them?
This would likely depend on which format plan your scheme is in.
This would likely depend on which format plan your scheme is in.
In a building format plan, the roof is common property to be maintained by the body corporate. If the skylights were part of that original structure, they are most likely body corporate responsibility.
In a standard format plan, the roof is part of the lot and a lot owner responsibility.
As a first step, you should check the CMS for your scheme or contact your body corporate manager to ask them which format your building is in or if there are any other conditions that need to be considered such as a by-law that has conferred responsibility for the skylights to owners.
William Marquand Tower Body Corporate willmarquand@towerbodycorporate.com.au
READ MORE HERE
At Altogether, we’re a multi-utility service provider on a mission to make the world a brighter place.
We’re passionate about creating sustainable communities. Leaders in the utility industry, we continuously lobby the government on matters to help improve customer protections. With imminent legislation changes on the way, we’re also well positioned to help Strata Managers and Body Corporates navigate their way through the new obligations and rights. That’s why we’re here to help with the Altogether Academy.
Altogether Academy is a program that will educate, empower, and support all strata managers, while covering education topics such as:
• Energy fundamentals
• Embedded networks
• Sustainable technology such as electric vehicle charging capability
• Utility data and metering
• Government reform and utility regulation
The program will give you the opportunity to learn from some of the energy industry’s most experienced voices, learn soft skills and take part in networking opportunities. Take control of your career, embrace Altogether Academy and talk to a Senior Energy Consultant today.
Specialist regional and north Queensland Residential Strata Insurance provider, Sure Insurance, is urging Body Corporates and apartment owners to undertake a simple task that could potentially save thousands of dollars – check if there are Flexi-Hoses installed in units.
Managing Director of Sure Insurance, Bradley Heath said aging Flexi-Hoses of varying manufactured quality were prone to bursting, and were potential ‘time bombs’ likely to cause significant damage to apartments through the escape of liquids.
“Damage often occurs in kitchen, bathroom and laundry areas, which can quickly spread to other living areas of the apartment. The real problem is that if a Flexi-Hose fails and no one is at home at the time, the water damage may impact adjacent and below properties, and even common areas –
resulting in a repair bill that could run into thousands or ten of thousands of dollars and significant inconvenience for residents.”
“In instances where a property is tenanted and a Flexi-Hose bursts, the tenant may have to vacate the apartment while repairs are completed.”
“The Flexi-Hose story goes back as far as 25-years ago, when rubber hoses encased in braided stainless steel started being installed into homes. The hoses quickly became an affordable alternative to copper pipes for internal water installations,” said Mr Heath.
“It’s important to note the varying quality of the materials used in the flexible hose manufacturing process is a major contributor to burst failures.”
“Apartment owners should be aware that Flexi-Hose products have a useable safe lifespan of between five to
ten years. After ten years it’s only a matter of time before the flexible hose may potentially fail.”
“If owners have any concerns about the presence of flexible hoses in their apartment they should engage a licenced plumber to conduct an inspection and if necessary to replace all at-risk hoses,” said Mr Heath.
“Should a Body Corporate complete a Flexi-Hose audit by a licensed plumber, Sure acknowledges the reduction in risk with a premium discount” said Mr Heath.
Sure Insurance also rewards proactive Body Corporates with premium discounts who have completed a property inspection report with a higher than average resilience rating from the North Queensland Strata Title Inspection Program (NQSTIP). The free NQSTIP reports provide estimates of the current resilience of strata
properties against future cyclone damage along with recommendations, where appropriate, for maintenance, upgrades or changes to enhance resilience.
Sure Insurance Apartment FlexiHose safety tips:
• Arrange a licensed plumber to inspect all existing installed flexible hoses.
• Replace all older or at-risk flexible hoses. This can be completed at a reasonable cost.
• Do not attempt to do-it-yourself (DIY) as improperly installed hoses are the cause of many preventable incidents.
• Be aware that some cleaning products stored under the sink are corrosive and may contribute to corrosion of the braided stainless steel hose sleeve.
• If leaving an apartment for an extended period, turn off the water mains to the unit to prevent possible incidents.
Our solar rebate covers the solar loan repayments. How do we ensure this is accounted for correctly in our body corporate financials?
Our Principal Body Corporate took out a loan to pay for solar panels. The solar credits are used to cover the solar loan repayment (principal and interest). Fortunately, the solar rebates are covering this cost. When the loan is paid off, the solar rebates will be used to cover our common area electricity.
There seems to be some confusion around the accounting entries in our financials. ie the interest expense and the cost of the solar panels. How do we ensure this is accounted for correctly in our financials?
The solar panel should be recorded as an asset on the balance sheet with the loan account owing
• Dr Solar panel (asset)
• Cr Bank loan (liability)
The solar rebate should be grossed up as income and then applied against the loan and the interest component – the loan repayment needs to be split between capital and interest amounts like a mortgage
• Dr Loan liability
• Dr Interest expense
• Cr Solar rebate income
The solar panels should be depreciated over their useful life of 20 years
• Dr Depreciation expense
• Cr Accumulated depreciation
Once the loan is repaid and the rebate is applied against common area electricity the entry would be as follows to gross up the income and the true electricity cost
• Dr Electricity expense
• Cr Solar rebate
Please note the above does not include the GST treatment on relevant items.
Rod Laws | TINWORTH & CO
RodLaws@tinworth.com
Since 2001, Seymour Consultants has applied professionalism, honesty and integrity to every project and built a reputation as a market leader in the Strata Industry.
I’ve repeatedly requested access to our financial records but received no response. Can our strata manager refuse my request?
Our strata manager maintains our body corporate’s financial records. I have twice requested our strata manager provide a list showing each accounting record, that is each item listed to indicate the nature of the record.
Whilst the Act makes clear each financial record which must be maintained, the wording in the act may not necessarily be the same as that used by our strata manager for our accounts. i.e. our payments register may be called something else.
I believe that this is a reasonable request for specific information from a proprietor e.g. expenditure items rather than requesting the complete general ledger.
Can the strata manager refuse the request?
It’s always reasonable to request access to information about your scheme – it is your information after all.
It’s always reasonable to request access to information about your scheme – it is your information after all. And most body corporate companies are happy to provide this. My guess is that the report you are requesting only takes a minute to download and email.
Here, though, you aren’t getting a response at all so it is worth considering why that might be and what you can do about it.
Firstly, it is possible that there is some miscommunication of some kind. Is there some reason your mails haven’t been received? Maybe the manager has sent a response, but it cycled into a junk inbox. In that case, it may be good to phone the office and ask.
Then, it’s possible that your manager/company is behind in their work and just hasn’t been able to respond. Managers and companies can struggle with the volume of requests on occasion and it can take a long time to turn things around when you start going under. If this is the case, your management company may not admit the problem to you, but you should be able to pick up on the vibes from that if you speak to the manager.
Lastly, you might want to think about whether there is a specific reason your request isn’t being responded to. Is there some kind of dispute going on? Has the manager been told not to respond to you or made an active decision not to respond? Perhaps the managers want to hide the information from you for some reason? We can only speculate, but there might be an active reason and if there is perhaps there is some form of dispute resolution that can be considered.
So what can you do? Have you checked the owner’s portal if you have one, as the information might be there? Perhaps you could reach out to a committee member who could assist. If you felt it necessary, you could arrange to do an inspection of the books and records. Managers aren’t obliged to respond to you, but they are obliged to provide you with access to the books and records via a search if you request that. If it is a question of bad service, you could write to the head of the company or start speaking to other owners about changing managers if necessary.
Work your way through the options and at some stage it should become apparent why you can’t get the communication required.
William Marquand | Tower Body Corporate willmarquand@towerbodycorporate.com.au
By agreement, our caretaker’s office hours have changed. This is causing building access issues. Can I submit a motion to have the decision overturned?
Our Caretaker submitted and won a motion at an AGM to have their agreement changed regarding office hours. They were required to keep the office open 8:30 am – 5:00 pm Monday to Friday. This was changed to “they must be available on-site between the hours of 8:30 am – 5:00 pm”.
The office is regularly closed. When the office is closed, the front auto door cannot be opened without a key and the building is essentially locked. This is causing a lot of issues and there was no monetary compensation from the Caretaker. As an owner, am I able to submit a motion at our next AGM to have this overturned and reverted back to the original clause in the Agreement?
A variation cannot be imposed on a manager.
A lot owner can submit a motion to be considered by the body corporate at any time. If that motion were to propose further changes to the agreement (such as to reverse the first round of changes) then it would be of no effect unless:
1. The body corporate passed the motion; and
2. The manager separately agreed to the variation.
This is because a variation cannot be imposed on a manager. It must be given effect to by mutual agreement.
An alternative would be to propose a motion that revokes the body corporate’s original approval for the change. However, even if this motion passed, the manager may have rights that have already crystallised if a deed has been entered into (and signed by the body corporate) that gives effect to the initial changes.
Todd Garsden | Mahoneys tgarsden@mahoneys.com.au
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U n f o r t u n a t e l y a s t h o s e o r i g i n a l b y - l a w s g e t t e s t e d m o r e a n d m o r e o f t h e m a r e b e i n g s h o w n u p a s u n l a w f u l D o w n l o a d " 5 M o s t C o m m o n I n v a l i d B y - l a w s " W h a t t h i s m e a n s i s t h a t m o s t b o d i e s c o r p o r a t e h a v e u n l a w f u l b y - l a w s o n t h e b o o k s
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1 0 0 % l e g a l a n d e n f o r c e a b l e s h o u l d t h e y b e t e s t e d i n a Co u r t o r T r i b u n a l T h i s h o l i s t i c a p p r o a c h b e t t e r a d d r e s s e s t h e d i s t i n c t c h a r a c t e r i s t i c s o f e a c h b u i l d i n g t o p r e p a r e a b e s p o k e s e t o f r u l e s t h a t b e s t s u i t s t h e n e e d s o f t h a t c o m m u n i t y .
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A new schedule of well-written by-laws designed specifically for your body corporate scheme will cost less than a traditional line-byline review of your existing schedule. Hynes offers a far more cost-effective solution.
What are the lot owner’s rights and responsibilities if they want to install a satellite dish on common property, such as a roof?
In a QLD body corporate, what are the lot owner’s rights and responsibilities if they want to install a satellite dish on common property, such as a roof?
We have an owner who wants to install a Starlink dish. The committee is supportive, but want to make sure we are compliant with all requirements.
Starlink is a constellation of internet satellites, operated by SpaceX. First, let’s assume that SpaceX does not go the way Twitter is (‘thanks’ Elon), and Starlink is still operating by the time the committee gets to consider the issue. What then does the committee need to decide?
Regular readers will recall that if an owner wants to put something on the common property, for their benefit, to the exclusion of other owners, permanently, then they need (at least) two body corporate approvals. Approval to put the thing there, and approval to keep the thing there. Where the ‘thing’ is utility infrastructure, such as ‘equipment’ ‘by which a lot … is supplied with’ ‘a computer data … service’ (per the definitions in Schedule 6 of the Body Corporate and Community Management Act 1997), then the second approval, to keep the ‘thing’ there, is covered by the statutory easements in the Land Title Act 1994. In particular, the easement in favour of lots for utility infrastructure in section 115O.
If an owner wants to put something on the common property, for their benefit, to the exclusion of other owners, permanently, then they need (at least) two body corporate approvals.
So, a lot owner has a right to keep a Starlink dish in place on the common property roof, so long as it does not interfere unreasonably with the use and enjoyment of the common property (by others) on which the dish is situated. A good way to ensure that does not happen is to think about how that interference may arise when the committee decides on the first approval. That is, the approval to put the dish up in the first place. Assuming the area in question is not exclusive use common property, the installation approval would be given under Section 187 of the Standard Module (or equivalent provision in the relevant regulation module). Committee approval is enough, if the dish install is less than $3000 in cost, the dish does not detract from the appearance of the common property and the committee is satisfied that the use and enjoyment of the dish is not likely to promote a breach of the owner’s duties as the occupier. For example, the dish is not going to create a fire hazard inside the lot with the internet running so blazingly fast! (kidding…).
Section 187 allows the committee to impose appropriate conditions, which must then be complied with. Further, the lot owner must maintain the dish (and cables etc), unless excused by the body corporate.
Most bodies corporate will have a standard set of conditions for situations such as these, typically to do with construction standards (wind load ratings etc), penetrations to the roof for cables and fixings (you don’t want leaks!), regular inspections and maintenance (a stitch in time saves nine) and removal (for example on the earlier of the dish no longer being used, or after a fixed period such as 3 years, whichever is the earlier).
Thinking about appropriate conditions can often expose how an installation such as a dish might unreasonably interfere with someone else use of the common property. For example, the install location may create a sun shadow blocking light to solar PV, or
a radio shadow blocking signal to a terrestrial TV antenna. Discussing draft conditions with the lot owner is also good practice because with minor ‘tweaks’ to the installation proposal, it’s possible that some conditions can be done away with (for example cables may be able to be run under ridge capping, into the roof and secured on a truss, rather than the colorbond roof being penetrated and silicon sealed (OMG, when will builders realise that silicon does not fix everything!). So, hopefully, that gives your body corporate a head start.
Michael Kleinschmidt | Stratum Legal info@stratumlegal.com.au
In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?
The QLD BCCM Act provides that occupiers must “not permit” either interference with support, shelter, utility infrastructure or utility services, or the use of a lot or common property that causes a nuisance or hazard to others. (section 165 – section 167)
The Act’s default By-Laws in Schedule 4 provide that an occupier must “not permit”
invitees either to park vehicles on common property or to bring animals onto the lot or common property.
And it is very common to see this admonishment in By-Laws prepared by strata lawyers for bodies corporate.
However, the Schedule 5 Adjudicators’ Orders do not mention “not permit”.
In what circumstances would an Adjudicator order an occupier to “not permit “something. More importantly, how do you “not permit” something if you wish to comply with the order?
Can the body corporate manager decide who can or should hold body corporate property?
Make sure that any request for records is authorised by a committee resolution.
Everyone should know that the records of a body corporate:
• belong to the body corporate, even if they are held by the current or former body corporate manager; and
• are to be delivered to a specified member of the committee within 14 days of a notice being served (section 235 of the Body Corporate and Community Management Act).
Accordingly, one body corporate was recently shocked when a body corporate manager refused to deliver the records, so an Adjudication was required.
Despite the clear requirements in the legislation, the body corporate manager argued that he was entitled to hold the records in the best interests of owners and to ensure they are not dealt with in a way that prejudices that body corporate.
The adjudicator relevantly stated:
“The status of any contract between the respondents and the body corporate is irrelevant the issue of who holds body corporate property. Body corporate records and assets belong to the body corporate, not its members or contractors. A body corporate (usually through its committee) is entitled to decide who will be in possession of its property at any time.
Even if a BCM believes it has a current and valid contract, I consider that it has no legal right to withhold body corporate property when it has been asked to return it. Adjudicators have consistently expressed that view.
[53]…I do not consider it is for a BCM to decide who can or should hold body corporate property… I do not consider it was acting in
the body corporate’s best interests to simply refuse to comply with the committee’s requests for the body corporate’s property.”
Please make sure that any request for records is authorised by a committee resolution.
Peter Hunt | Mathews Hunt Legal peter.hunt@mathewshuntlegal.com.auProfessionalism is a word thrown around a lot, in a variety of contexts in a variety of sectors. However, few fully appreciate what it means. One definition of a professional of course is to contrast it with “amateur.” Someone who is paid for a job is obviously expected to do it to a higher standard than someone who engages in the same activity as an amateur. However, does this make them a professional in the most fulsome sense of the word? Probably not. I can pay my neighbour to wash my car, I don’t think this necessarily makes them a professional car washer.
Professionalism in the context of employment or work tends to focus on an employee searching for a higher purpose in what they do. The earliest occupations which morphed into professions were medicine, the law and clergy. Doctors heal the sick, lawyers uphold justice, clergy proselytise their faith. The higher purpose of a vocation distinguishes professions from “jobs” or “trades.”
So, in strata, how do we take strata management from being an occupation to being a profession?
Firstly, compulsory minimum standards with respect of education and conduct. Given at this point anyone can call themselves a strata manager, it’s unlikely that the title holds the clout to be dubbed a profession right now in the eyes of the public.
Secondly, and perhaps most importantly, we need to recognise a higher purpose to our work as a sector. To become a profession, strata must move beyond day-to-day service provision to lot owners and to recognise its higher purpose, to facilitate the provision liveable, harmonious, and efficiently run communities to Queenslanders.
The pathway to professionalism is not just about Government regulation, recognition or erecting a barrier to entry, though this will inevitably an important part of moving our sector in this direction.
What is critically important to all in the sector is to recognise, embrace and place at the forefront of all they do professional ethics and conduct, as well as an embrace of their higher purpose every day when they go to work. As an industry, a big part of becoming a profession will be embracing this higher purpose.
As we push forward on this journey towards professionalism, as the peak body for the sector, SCA (Qld) intends to lead by example. We already have a Code of Conduct and a rigorous CPD program for members, but raising the standards of these further, spreading their message as well as enhancing the culture of the industry are all part of this.
With Government’s eyes upon us, now is our biggest and best opportunity to show we are a profession. As a collective, we must embrace the opportunity to lead, upskill and serve. We need to show not just that we embrace and accept a barrier to entry but that we are able to raise our own standards in how we act ethically.
Strata management, I have no doubt in my mind, deserves to be recognised as a profession. This is not about having obligations imposed on us from above, but rather about us embracing the opportunities that come with an intrinsic motivation to better ourselves as a sector.
It was no coincidence that the SCA (Qld) Conference theme this year was chosen to be Forward Focus, Future thinking. This will be remembered as the year when we kicked into our 40th anniversary as an organisation, with significant maturation and of course, an industry that is represented by universally recognised, well educated and ethical professionals. It is going to be an enormous 12 months and let’s hope it ends with significant leaps towards further professionalism for the strata sector.
Laura Bos General Managerwww.qld.strata.community
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Northern Body Corporate Management
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W: https://www.energyon.com.au/
E: EnergyServices@EnergyOn.com.au
EDSI Solutions
Electrical Concierge Services
P: 07 3205 7002
W: https://edsi.net.au/
E: admin@edsi.net.au
ENM Solutions
Providing Solutions for Embedded Networks
P: 1300 000 366
W: https://www.enmsolutions.com.au/
E: info@ENMSolutions.com.au
EMERLITE ELECTRICAL SERVICES
We Answer The Phone - No Job Too Big Or Small
P: 07 5591 9191
W: https://www.emerlite.com.au/
E: office@emerlite.com.au
Fire Matters
Fire Safety Compliance
P: 07 3071 9088
W: https://firematters.com.au/
E: sbauer@firematters.com.au
Hartec Fire Systems
Fire Systems Maintenance & Admin Solutions
P: 1300 300 367
W: http://www.hartec.net.au/
E: info@hartec.net.au
Fair Water Meters
Fair water - fair bills
P: 1300324701
W: https://fairwatermeters.com.au/
E: info@fairwatermeters.com.au
Lifestyle Clotheslines
Clothesline and washing line supplier & installer
P: 1300 798 779
W: https://www.lifestyleclotheslines.com.au/
E: admin@lifestyleclotheslines.com.au
Higgins Coatings Pty Ltd
Specialist painters in the strata industry
P: 1300 HIGGINS
W: https://www.higgins.com.au/
E: info@higgins.com.au
Dulux Property Services
Total Building Maintenance & Remedial Solutions
P: 0434 834 799
W: https://www.duluxconstructionsolutions.com.au/
E: propertyservice@dulux.com.au
Windowline Pty Ltd
Australia’s strata replacement window & door specialists
P: 02 8304 6400
W: https://windowline.com.au/
E: info@windowline.com.au
StrataLoans
The Experts in Strata Finance
P: 1300 785 045
W: https://www.strata-loans.com/
E: info@strata-loans.com
Lannock Strata Finance
The Leading Strata Finance Specialist
P: 1300 851 585
W: https://lannock.com.au/
E: strata@lannock.com.au
Austrata Finance
Pay Now or Pay Later: It’s Your Choice®
P: 1300 936 560
W:https://austratafinance.com.au/
E: info@austratafinance.com.au
The Green Guys Group
Australia’s Leading Energy Saving Partner
W: https://greenguys.com.au/
E: sean@greenguys.com.au
Humenergy
People, Innovation and Value Sharing
P: 1300 322 622
W: https://www.humenergy.com.au/
E: Info@humenergy.com.au
Innovative Lift Consulting Pty Ltd
Australia’s Vertical Transportation Consultants
P: 0417 784 245
W: https://www.ilcpl.com.au/
E: bfulcher@ilcpl.com.au
sharonbennie – Property Recruitment
Matching top talent with incredible businesses
P: 0413 381 381
W: https://www.sharonbennie.com.au/
E: sb@sharonbennie.com.au
Ki Creative Design
Purposeful Design Solutions
P: 0451 541 006
E: kiara.mcilroy@gmail.com
