The QLD Strata Magazine | November 2022

The QLD

STRATA MAGAZINE NOVEMBER 2022

Can a Committee raise a special levy without first obtaining quotes?

Page 8 | Tower Body Corporate

Can an owner contact other owners to discuss concerns with the running of the BC? Page 16 | Strata Solve

Electric vehicles in bodies corporate Page 18 | Mahoneys

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.

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.

Meet the team

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, and is currently in her third term on the SCA (WA) Education and Professional Development Committee now known as the Industry Understanding Committee.

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.

Nikki Jovicic Owner / Director

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

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 MIMOR Delivers for strata residents Mimor

6 Lack of slope causing pooling on a balcony James McIntosh, Sedgwick

8 Can a Committee raise a special levy without first obtaining quotes?

William Marquand, Tower Body Corporate

10 Controlling the use of access keys and locks to reduce trespass Holly Dunne, Mahoneys

12 How do we know how much to insure the duplex for?

Tyrone Shandiman, Strata Insurance Solutions

14 Should CMS definitions be consistent with wording in our by-laws?

24 Who maintains and repairs my fire door?

Michael Kleinschmidt, Stratum Legal

26 Where does a body corporate manager’s liability begin and end?

Todd Garsden, Mahoneys

28 The effect of strata insurance on the sinking fund forecast in Far North QLD Dakota Panetta, Solutions in Engineering

30 How do we stop thieves entering the building through the carpark?

William Marquand, Tower Body Corporate

32 Does the Privacy Act override the by-laws?

Karen Thompson, Vision Strata

34 The Housing Summit SCA (Qld)

Todd Garsden, Mahoneys

16 Can an owner contact other owners to discuss concerns with the running of the BC? Chris Irons, Strata Solve

18 Electric vehicles in bodies corporate

36 Understanding fees charged in your BC management agreement William Marquand, Tower Body Corporate

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The QLD LookUpStrata Directory

Todd Garsden, Mahoneys

22 Can an owner submit a motion to review the strata manager’s contract?

William Marquand, Tower Body Corporate

Thanks to our sponsors

SC Seymour Consultants

STRATA COMPLIANCE REPORT SPECIALISTS

MIMOR delivers for strata residents PARCEL MANAGEMENT FEATURE With shops and restaurants closed and limited reasons to leave home, deliveries have become a part of everyday life.

Whether it’s groceries, gifts or a new pair of shoes, an increasing array of packages are appearing on Australian doorsteps.

But while many of us are enjoying the convenience of home delivery, it can prove more problematic for residents of apartment buildings, not to mention for delivery drivers navigating secure entrances and unanswered doors.

Enter Australian entrepreneur Jake Sharp, who created the MIMOR digital platform to manage just such an issue.

MIMOR (Move In Move Out Register) is a one-stop shop designed to overcome strata-living sticking points, acting as a central digital hub for residents and building managers and service providers, comprising vital building information, moving processes, procedures for booking facilities and common areas, general announcements and real-time communications via email and SMS alerts.

MIMOR’s parcel management feature similarly simplifies and streamlines parcel deliveries and collections for apartment residents. Building managers or concierges are able to accept and log parcels through MIMOR on behalf of the resident, select where the goods will be securely stored and notify recipients via email or SMS that their parcel is ready for collection. For added security, residents are required to sign for collection, and parcels entered into the MIMOR system are also recorded in the app’s reporting system to ensure all deliveries are accounted for.

The items are then secured in a locker located on the premises, and the recipient electronically notified.

Sharp created MIMOR after experiencing first hand some of the frustrations and complexities of strata living, when his former cleaning business was responsible for 220 strata buildings.

“It was such a disjointed system; none of the individual parties – owners, managers, tenants, real estate agents, cleaners – were clear on the building’s processes and systems. I just knew there had to be a better way to do it, particularly in this digital day and age,” Sharp said.

MIMOR’s subscriptions are scalable, from three apartments to more than 500.

“Things like missed deliveries or misdirected parcels might seem like a small thing but can really add to the frustrations of daily life in apartment living, for both residents and building managers,” Sharp said.

“Parcel delivery has risen dramatically during the pandemic, and I don’t see that trend changing given how conditioned we have become to online shopping, so it makes sense to have in place a secure and streamlined system that ensures convenience and certainty.”

For properties without a building manager or concierge, there are options available such as Digital Lockers, enabling MIMOR users to select a locker number for their delivery through the MIMOR system.

info@mimor.com.au

For more information, go to mimor.com.au

mimor.com.au

5

Lack of slope causing pooling on a balcony

Can a step down and membrane compensate for lack of slope causing pooling on a balcony?

When you are addressing an issue in relation to a balcony, a sliding door or a cavity, we don’t recommend dealing with issues in isolation.

An adequate step down and membrane system will prevent water from going laterally into the sole occupancy unit.

However, if you’ve got substrate or fall (slope) issues in your actual balcony itself, that potentially creates its own issues, for example, a slip hazard. If you’ve got water that is never receding and pooling in an area, you’ve got a loss of amenity. You can’t go out onto the balcony in your socks in dry weather and traverse that area.

It also has the ability to promote efflorescence leaching out of the minerals that are contained in the bedding material and the grout joints. You’re going to have unsightly efflorescence coming

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around the grout joints in your tiles. If it’s left for an extended period of time, this has the ability to break down the bond that exists between the adhesive of your tiles, your bedding material, and of course, your membrane as well. A bedding system is intended to drain and not remain saturated, if the substrate or surface of the floor is not adequately drained there is a high risk of degradation of the system.

The answer to the question is probably yes and no.

It’s not ideal to retain a flooring system that features a lack of fall however if it isn’t resulting in a loss of amenity or water ingress below or beside, this is often not resolved by building owners out of cost vs necessity considerations. When you are addressing an issue in relation to a balcony, a sliding door or a cavity, we don’t recommend dealing with issues in isolation. Our recommendation is to deal with it all in a cohesive way and make sure everything is compatible and compliant.

James McIntosh | Sedgwick Building Consultancy division james.mcintosh@au.sedgwick.com READ MORE HERE

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Can a Committee raise a special levy without first obtaining quotes?

Can the body corporate committee ask for a special levy for multiple urgent water ingress building repairs without obtaining a firm quote?

Can the body corporate committee ask for a special levy for multiple urgent water ingress building repairs without obtaining a firm quote?

Background: Can we ask for $500k at our AGM to repair windows, guttering, roofing, waterproofing membranes etc which we’ve found have not been built to standard initially?

Total works will be more, but we need this asap to get started prior to the wet season and getting quotes and going to EGM will lose valuable time.

A special levy doesn’t have to be linked to a specific invoice or expense.

A special levy doesn’t have to be linked to a specific invoice or expense. Indeed, it’s fairly common to have levies raised to restore

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liquidity if there is a deficit in the admin or sinking funds or to help set aside money for a future major project.

However, urgent levies do tend to be linked to specific expenses or at least issues – that’s why they are urgent as the money is needed for something now. If you are just asking for a general increase in liquidity – and $500k is quite a bit of liquidity – you can reasonably expect a lot of questions back about why the money is required and how it will be spent. If that is not clear it is quite possible that the proposal to raise funds will be rejected. People like to know what they are paying for.

In that context then, I would recommend that any proposals you do put to owners are supported with a clear plan and some evidence that you have sought costings and advice to see where you stand. If you can demonstrate what is required and why owners are more likely to provide a positive response.

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

9

Controlling the use of access keys and locks to reduce trespass Caretaker staff have shared the access code into our secure common property with outsiders.

They now access the space. Is this trespass and how can we stop it?

We have a secure area accessed via a gate code in our common property. It should only be accessed by residents and caretaker staff.

Some caretaker staff have shared the code with outsiders, who then trespass onto the secure property.

As civil trespass is expensive and laborious to prosecute, is there any state law that protects us? Sharing the code with an unauthorised person is the same as giving a stranger my house and car keys. How do residents protect themselves?

It would be difficult to establish trespass when the person was invited as a ‘guest.’

It would be difficult to establish trespass in circumstances where the person was invited onto scheme land by an owner or occupier in the capacity as a ‘guest.’

However, the Body Corporate may impose reasonable conditions on the use of access keys and locks at the Scheme.

Relevantly: a. s ection 94 of the Body Corporate and Community Management Act 1997 (Qld) provides that the Body Corporate must administer the common property and body corporate assets for the benefit of the owners of lots included in the Scheme; and b. in Turtle Beach II [2010] QBCCMCmr 440 the adjudicator provides: Providing access to and security for the scheme land, including locks and keys, falls within the scope of administering the common property for the benefit of owners. In this regard, it is appropriate for a body corporate to exercise some control over when and how security access cards are issued, to ensure an appropriate level of security for individuals on the scheme and the property belonging to the Body Corporate and individuals. In doing so, however, the Body Corporate must act for the benefit of all owners.

Accordingly, the issue here is whether the Body Corporate has acted reasonably and for the benefit of all owners in approving the requirements of the key system policy and procedures.

The Body Corporate may then direct the caretaker and its staff to stop giving out the code to third parties, or otherwise reconsider the security system currently in place (provided any replacement system is reasonable).

Holly Dunne | Mahoneys tgarsden@mahoneys.com.au READ MORE HERE

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11

How do we know how much to insure the duplex for?

So we know we are insuring our QLD duplex for the right amount, is there a fixture and fittings checklist we can use?

Is there a Qld-specific checklist for the fixtures and fittings in our duplex? The common items are the fences, common wall and wiring and plumbing. I have had no support from our previous or current insurer, who have both directed me to their PDS and the PDS directs me to the legislation, which does not have any type of checklist.

We require this information so we have confidence in the amount we insure the building for and how much we need for our individual contents insurance.

There is a requirement that the property conducts an insurance rebuild valuation every 5 years.

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The Body Corporate and Community Management (Small Schemes Module) Regulation 2020 requirements that the property conducts an insurance rebuild valuation every 5 years per the legislation – Section 119.

The basic principle is that if you pick the unit up and shake it anything that falls out is lot owners contents + temporary flooring such as carpet, blinds & curtains, appliances that are not permanently attached, and aircon units servicing an individual lot (QLD only). These items need to be insured by contents/landlord’s insurance.

Other permanent fixtures including but not limited to kitchen and bathroom cabinetry are covered by strata insurance subject to the policy terms, conditions and exclusions.

Lot owners should also have contents/landlords insurance to cover property not insured by the strata policy and liability within the lot and I always suggest lot owners add an extra say $10,000 contents cover on what they believe should be covered for any incidental items not considered as it might only cost say $50 for the extra piece of mind.

Applicable Legislation 119 Valuation for insurance purposes [SM, s 200] 1. This section applies if, under this part, a body corporate must insure 1 or more buildings for full replacement value.

2. The body corporate must, at least every 5 years, obtain an independent valuation stating the full replacement value of the building or buildings.

4. The contribution that the owner of a lot is liable for may be recovered by the body corporate as part of the owner’s annual contribution to the administrative fund.

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

3. The owner of each lot included in the community titles scheme is liable to pay a contribution levied by the body corporate for the cost of the valuation of the building or buildings that is proportionate to the amount of the premium for reinstatement insurance for the building or buildings for which the owner is liable under this part.

13

Should CMS definitions be consistent with wording in our by-laws?

The definitions in our CMS are different to the wording in our bylaws. Does the definition in the CMS override the by-laws or do we need to change the by-laws?

We are under the accommodation module/ Building Format plan. When our CMS was submitted there was a list of definitions. The wording in the definitions is different to the wording in the by-laws. For example; the definitions state “a vehicle” whereas the bylaws state “a registered vehicle”.

Without going into the problems this has caused the committee with differing opinions/ interpretations, does the definition override the by-laws? Or do we have to go down the path of reviewing the by-laws with a general meeting to approve the proposed changes, new CMS etc.

There is not necessarily one set of words that overrides the other.

This appears to be a matter of construction and interpretation. There is not necessarily one set of words that overrides the other as it will depend on: 1. How the definitions clause has been drafted; 2. How the by-law itself has been drafted; 3. Whether there is any guidance in the bylaws as to interpreting them; and 4. Importantly, the specific issue at hand.

If we were able to review the entirety of the by-laws and have some detail around the issue at hand we could provide our view on how it should all be interpreted.

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

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Can an owner contact other owners to discuss concerns with the running of the BC? 16 www.lookupstrata.com.au

Does a unit owner have the right to access contact details of all lot owners? If so, can an owner contact other lot owners either via email or phone to express concerns about the running of the Body Corporate?

Be prepared for either no response, or some potentially negative responses.

Yes, you can. As an owner, you are an interested person for the purposes of strata legislation which means you have a right to access body corporate records, such as the roll.

As for contacting the owners – well, that’s a slightly different story. Put yourself in their shoes for a moment: would you react well if you received an email from someone you don’t know (I assume you don’t know every owner) out of the blue? I’m not saying it’s a bad thing at all. I’m just saying,

be prepared for either no response or some potentially negative responses.

Email addresses on the roll in Queensland are opt-in, so you may find that you won’t necessarily have all the email addresses anyway.

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.

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

READ MORE HERE

Electric Vehicles in Bodies Corporate Should a body corporate have an electric vehicle by-law?

In 2021, there were 20,000 electric vehicles sold in Australia (three times as many as in 2020). With some states looking to ban combustion vehicles in the next decade, there is no doubt that the number of electric vehicles in Queensland will rise.

These new electric vehicles will need to be stored, and charged, somewhere. Given the 50,000+ bodies corporate in Queensland, it is an issue that will need to be carefully considered and addressed by committees.

As this article will show, the complex issues cannot be dealt with by a simple by-law.

Bodies corporate and electric vehicles There are a number of specific issues for a body corporate to consider in relation to electric vehicle charging, the most prevalent being: 1. Where the charging devices will be installed and who is entitled to use them; 2. The capacity of the existing infrastructure to cope with any increased load; 3. What are the risks of installing and utilizing any charging devices; 4. Who is paying for any installation, upgrades, maintenance, electricity and other associated costs (e.g. any additional insurance); 5. What, if anything, should the by-laws provide for?

Supply of electricity The supply of electricity and embedded networks is a complex and complicated issue – even before you throw the charging of electric vehicles into the mix.

The regulation modules set out a prescribed procedure and power for the Body Corporate to on-supply services to occupiers, including domestic services such as electricity.

When the body corporate does supply electricity to occupiers: 1.

It has an obligation under the regulation module to the greatest practicable extent, to ensure that the total cost, other than administrative costs, is recovered from the users of the service (i.e. to charge the occupier for the electricity used to charge an electric car);

2.

The body corporate can only fulfil its obligation if it enters into a service agreement with the occupier – which cannot be reflected in a by-law; and

3.

The terms of the service agreement, and the conditions of supplying electricity may incidentally be captured within the ambit of various layers of regulatory bodies and legislation. This can then require consideration of the need for embedded network managers, authorisations or exemptions from the regulator and many other hoops that may need to be jumped through – effectively necessitating an additional service contractor to be engaged just to manage the compliance requirements of supplying electricity.

General advice / by laws

Dispute resolution

Assignments

Amalgamation /termination

www.mahoneys.com.au

Liability limited by a scheme approved under Professional Standards Legislation

Off plan (BMS / CMS)

Installation Just like any other works, an improvement by a lot owner to: 1. common property (which is what most car parks are) – requires general meeting approval if the cost is over $3,000; and 2. part of a lot – will only need approval by the committee depending on the by-laws for the scheme regulating improvements. However, even if a car park is part of a lot, the installation will presumably affect some part of the common property when it is connected to the electricity utility infrastructure – necessitating approval by the body corporate.

As the installation relates to utility infrastructure, lot owners may also have statutory easement rights placing positive obligations on the body corporate to approve the proposed works.

In considering any application for approval, the body corporate can impose reasonable conditions. This can extend to the standard and usual conditions about the quality of workmanship, compliance with specifications, compliance with building regulations, visual amenity concerns, insurance and ongoing maintenance.

However, given the specific concerns related to electric vehicle charging, further conditions may be appropriate to consider such as: 1.

requiring regular inspections to be carried out to ensure the infrastructure is in good working order and safe;

2.

conditioning the way in which the charger is used (if there are requirements for safe charging); and

3.

complying with any requirements from the body corporate’s insurer.

Capacity concerns For the first few installations, the above considerations of supply agreements and improvement approval may be all that is required.

However, given the infrastructure that was installed for any existing buildings pre-dated the prevalence of electric vehicles, the current infrastructure may not be sufficient to take the load of more than a few electric vehicles recharging at once. There will come a point where the next electric vehicle installation will create an unacceptable load on the infrastructure without significant improvement works to the entire system being carried out.

An overloaded system can lead to brown outs, fire, interrupted supply, damage to infrastructure and damage to any device connected to that infrastructure. Charging during peak summer and winter months will increase the risk of the system being overloaded.

How each body corporate seeks to regulate this will be a future source of dispute. Will it be: 1.

up to all owners to fund those expensive works – even if there is no appetite to have an electric vehicle;

2.

the owners that come after the capacity load limitation has been reached bear the cost – where those that came before, do not need to contribute and benefit on a first-in best-dressed basis;

3.

the earlier adopters who have to bear all the cost for which all other users benefit from (at no cost to them); or

4.

a more convoluted cost sharing scheme entered into whereby the service agreement and improvement approval conditions provide for an obligation on owners to contribute to the improvement costs (if and

General advice / by laws

Dispute resolution

Assignments

Amalgamation /termination

www.mahoneys.com.au

Liability limited by a scheme approved under Professional Standards Legislation

Off plan (BMS / CMS)

when they are required) – and any later owners who want to come online to the system then reimburse the existing owners. Any rights or obligations under these arrangements would also need to address those owners selling or buying their lots in the scheme.

We suspect the latter option is the most equitable – but expect that most bodies corporate will allow the first few installations on a first-in best-dressed basis and then descend into a dispute when the next owner wants to install their infrastructure, (rightly) does not want to pay for the entire system upgrade and then disputes this against the Body Corporate.

Common facilities An alternative to owners needing to install their own charging infrastructure in their car park is for bodies corporate to install a common electric charging facility – available to occupiers on a booking system.

If bodies corporate were to take this path (and maintain control over the use of the charging facilities and infrastructure requirements) it would be imperative for a by-law to be imposed that regulates how the charging facility is used by occupiers.

Even this path is not without its issues. Owners that do not have an electric car (who would be contributing to the common property costs) may object on the basis that the body corporate has an obligation to recover the costs of services that are provided to occupiers. If that then leads to a cost recovery process, the body corporate may then be caught up in the supply regulations and obligations.

Yo u r B o d y C o r p o r a t e E x p e r t s

Conclusion Electric vehicles in a body corporate is a complicated issue that cannot be solved with a simple electric vehicle by-law.

It should be dealt with by proactive committees acting early to adopt a policy of how it is going to treat electric vehicles in the scheme and arranging for the necessary supply agreements, approval conditions and arrangements for capacity upgrades to be put in place.

Brisbane L 18, 167 Eagle Street Brisbane Qld 4000 07 3007 3777

Gold Coast L 2, 235 Varsity Parade Varsity Lakes Qld 4230 07 5562 2959

www.mahoneys.com.au

General advice / by laws

Dispute resolution

Assignments

Amalgamation /termination

www.mahoneys.com.au

Liability limited by a scheme approved under Professional Standards Legislation

Off plan (BMS / CMS)

Your source of reliable Strata news and information since 2013 Providing detailed, practical, and easy to understand strata information to all Australians.

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Can an owner submit a motion to review the strata manager’s contract?

As an owner, I put up a motion to review the Strata Manager’s contract. The Strata Manager deleted my motion and said this was more of a committee issue.

Is this correct?

Prior to the AGM, I put up a motion to review the Strata Manager’s contract, due for renewal in 3-4 months. The Strata Manager deleted my motion and said this was more of a committee issue.

Is this the case? While not currently a committee member, I have shortly held the position of treasurer previously. In this position, I had the opportunity to approach a number of Body Corporate Managers and the information I received indicated to me that this is an AGM matter.

If an owner requests that a motion be included on the next meeting notice, that motion has to be included and considered by the Body Corporate.

If an owner requests that a motion be included on the next meeting notice, that motion has to be included and considered by the Body Corporate. The Body Corporate Manager, who in this case is a delegate of the Secretary, has no right to make unilateral decisions over what is included.

From your end, you need to make sure that the motion submitted was valid in terms of the timelines for a submission and the content of the motion.

If the AGM has already been held and your motion wasn’t included, you may consider making a formal complaint about this – start with the Committee but the Commissioner’s office could be the next port of call.

If you wanted a more definite outcome than just a review, you might look at putting forward an alternative management company for consideration – that is certainly a matter for a

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general meeting. However, maybe you are not at that stage yet and all you really want is some discussion about where things stand.

There are limited forums for this kind of thing and the AGM may be the best one for your site. Bear in mind that motions to review or discuss something are fine, but they don’t have a definite endpoint. It’s hard to really say what constitutes a review or discussion.

Sometimes they can be productive and other times not so much.

As a next step, you might advise the manager of the requirement to list your motion. You could also communicate with the Committee over the matter and see what support there is for your proposal. If you are correct about the manager misadvising you, it is an obvious point of concern if the Manager is not following due process.

Any response you get from owners may depend on your scheme. If most owners show up to the AGM in person or online it seems like a pretty good place to have a discussion. If most just send in an advance vote, the discussion might not go very far.

For these reasons, I can understand the idea that the matter may be best left for a Committee Meeting, but it depends on the circumstances and the Body Corporate Manager doesn’t have the authority to deny your request.

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

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For more on submitting motions see the BCCM website: Submitting motions

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Who maintains and repairs my fire door?

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Our complex is a building format plant. Would the fire door that is contained wholly within the lot be a lot owner’s responsibility to maintain and repair?

Our complex is a building format plant.

Most of the apartment’s gain access via a gate leading into a private entry foyer with a fire rated door as the secure entry to each lot.

On the CMS plan, the entry foyer area is clearly shown as part of the lot, so that the gate and external foyer wall is the shared boundary between the lot and the common property.

Would the fire door that is contained wholly within the lot be a lot owner’s responsibility to maintain and repair?

Yes. A lot owner must maintain their lot.

Yes. A lot owner must maintain their lot; s211 Standard Module.

If the lot is created under a building format plan, then the body corporate must maintain parts of the lot, which are not common property, if they fulfil what Adjudicators have called a ‘whole of building’ function, such as waterproof membranes, foundation structures etc and which are detailed in s180(2) Standard Module.

A fire door inside the lot, and not a common boundary, does not, in my view, fall into the categories in that section (despite it fulfilling a ‘whole of building’ function – being to slow the progress of fire!).

Michael Kleinschmidt | Stratum Legal info@stratumlegal.com.au READ MORE HERE

Where does a body corporate manager’s liability begin and end?

Most body corporate management contracts have a clause that limits their liability to the body corporate or removes it altogether. Are clauses like this valid and where does a body corporate manager’s liability begin and end?

A limitation of liability clause is a common clause that is contained in a body corporate manager’s administration agreement. These clauses are generally valid to an extent.

Ultimately where it ends will depend on the precise wording of the clause which:

These clauses are generally valid to an extent.

Todd Garsden | Mahoneys tgarsden@mahoneys.com.au

must be considered reasonable; and cannot contract out of things such as negligence, fraud or misrepresentation.

READ MORE HERE

26 www.lookupstrata.com.au

A leader in servicing the strata industry Tax Depreciation Insurance Valuations Sinking Fund Forecasts Defect / Condition Reports (QBCC licensed)

Call 1300 290 235 or visit gqs.com.au

GQS complete on average over 2,000 property consultancies each year, all across Australia.

Our experience will provide valuable input to any investment, business or personal, often saving you thousands of dollars.

The effect of strata insurance on the sinking fund forecast in Far North QLD In FNQ, insurance is so high, body corporate committee’s are not doing sinking fund forecasts and if they are doing them, they are ignoring the recommendations in the sinking fund report. What can we do?

Strata Insurance Issues in Far North QLD (FNQ).

Insurance is so high, body corporate committee’s are not doing sinking fund forecasts and if they are doing them, they are ignoring the recommendations in the sinking fund report. A vast majority of levies is going to insurance. In FNQ, insurance for a block of 21 units is around $110K so, to keep strata fees down, garden maintenance is cut, building maintenance is cut etc.

As a lot owner, I’m concerned about where this leaves us. What can we do?

Regardless of the cost of insurance, a body corporate cannot neglect maintenance of the building or common property.

The Australian Gov has pledged $10 billion toward a Northern Australian reinsurance pool. This is designed to assist firstly with your comment on high insurance premiums.

28 www.lookupstrata.com.au

Hopefully over the next year or so we will see a drop in the extreme premiums in FNQ as a result of this government backed scheme.

Regardless of the cost of insurance, a body corporate cannot neglect maintenance of the building or common property. It has a legal duty to maintain the property regardless of individual owners and their financial standing.

It is important for owners to note that failed and neglected maintenance is inevitably going to lead to higher insurance premiums. The more frequently the BC has to claim for water leaks, injuries on common property etc, the insurance premiums will continue to skyrocket.

If necessary, the BC may need to consider taking a loan to raise the relevant funds and repair/ complete the required maintenance.

Worth noting as well, failed garden maintenance and failed building maintenance will have an adverse effect on the value of the owners units. Poorly presented schemes, lacking in maintenance, are going to be very hard for an owner to sell or lease their unit and gives rise to the question of compensation to owners because the body corporate has failed its duties.

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

SURE INSURANCE IS WORKING HARDER TO HELP YOU SAVE ON STRATA INSURANCE Sure Insurance now offers Strata Insurance for properties up to 5 million dollars. We look for ways to reduce your premium, not reasons to penalise you. Also, savings made by your Body Corporate on Strata Insurance mean savings for lot-owners.

WE DO THIS BY: • Working harder to understand the history of your apartment block, townhouse or units.

• Using JCU Inspection Reports to determine your property’s cyclone risk and potentially lower your premium.

• Asking for further details about the maintenance and management of the property if we think they may help you save.

CALL 1300 392 535 OR TALK TO YOUR BROKER ABOUT HOW YOU CAN SAVE ON YOUR STRATA INSURANCE

How do we stop thieves entering the building through the carpark?

Thieves have entered our building through the carpark and managed to steal a number of items. What safety measures should we look into to stop this from happening?

On a few occasions, thieves have entered our building through the carpark entry doors. They hide and come in behind cars.

They have managed to steal a number of items.

We are a new building and have limited funds at present. When we are financial, we will purchase CCTV. At present, there are no cameras in the basement carparks.

What other safety measures should we look into to stop this from happening?

For starters, you can communicate the situation to all owners and occupants.

Make sure they are aware and vigilant.

It’s hard for new buildings that start out with minimal amounts in the bank, but if you need a cash injection you might just have to accept that as a reality and raise extra funds through a special levy. If not, you might be waiting a long time until you can take real action.

30 www.lookupstrata.com.au

In terms of what you might do from a lower cost point, it will probably depend on the set up of your building. For starters, you can communicate the situation to all owners and occupants. Make sure they are aware and vigilant. Tell them not to leave any valuables in their vehicles. Tell them to be on the lookout for anyone unusual accessing the building – particularly if driving in after other cars. Contact the police if they see anything suspicious. Maybe you could get a group of owners to do a sweep of the car park in the evenings together to see if you can see anything or anyone that shouldn’t be there.

You could also get a locksmith or security company out to do an assessment and see if there are any quick fixes. Perhaps adding strike plates to locks or changing the set-up of some access points. Perhaps some increased signage would help. We don’t usually recommend individual companies on this site, but if you ask your body corporate manager, they can assist.

In terms of CCTV, you shouldn’t think of this as being the magic bullet. Many thieves just don’t care if they are caught on camera.

Others know to hide their face or move away from cameras. The reality is that all buildings need multi-layered security setups and cameras are just one part of that. Consider the whole set up as holistically as possible and look to improve every area you can.

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

SC Seymour Consultants

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Health & Safety Sinking Fund Forecasts Asbestos Auditing Insurance Valuations Caretaking Performance Reviews Caretaking Remuneration Reviews – Time & Motion Study Management Rights – Suitability Interview & Assessment Project Management Tax Depreciations Part Five Reporting

Does the Privacy Act override the by-laws?

An owner has been asked to trim trees as the neighbour is not getting any light into their backyard. He has claimed the trees are for privacy and the Privacy Act overrides the bylaws.

Is this correct?

Our body corporate asks owners to keep trees and shrubs to a height of around 2 metres for easy maintenance. The Body Corporate has asked a lot owner to trim trees located in his exclusive use area. A request had been submitted by the neighbouring resident backing onto this property stating that the trees are blocking sunlight to his washing line and garden and he does not get any sun in his backyard.

The lot owner with the trees claims his trees are for privacy. He states he has sought outside advice on this matter and been advised that Privacy Laws overrule by-laws. If the body corporate persists with their request, he will only trim his trees when all other lot owners have done theirs. Are his claims about privacy laws correct?

32 www.lookupstrata.com.au

Owners do have a right to natural sunlight and if a tree was blocking this, it could be deemed to be interfering with the owners’ rights.

If both owners are part of the same scheme, the body corporate may have jurisdiction over this matter.

The issue here is a tree located within the boundary of an area of common property that is the exclusive use yard area of a lot.

Firstly, is there is a by-law covering the maintenance of this area? If so, what are the requirements of this by-law? Is there a by-law that requires all trees and shrubs to be kept at a height of 2 meters as asked by the body corporate? If there is and the trees are higher than 2 meters, then the owner is in breach of the by-laws and the body corporate can take action.

If there is no such by-law then the next matter for the body corporate to consider is, if this tree causing damage to common property.

For example, if branches are overhanging common property roof gutters which may cause damage to these. Is the tree in poor condition/health and is there a risk of branches falling or the tree itself falling and causing injury or damage. If yes, then the body corporate may have cause for pruning or removing the tree. If more than one owner is not complying with any relevant by-law then the body corporate should be fair handed and apply the same rule to all.

If the owner does not comply with the body corporate request, then they are in breach of the by-laws and you can issue with them a Formal Contravention Notice, Form 10 Continuing Contravention Notice. If the owner does not comply with the Notice within the specified time limit, then the body corporate can lodge a conciliation application with the Office of the Commissioner for Body Corporate and Community Management (BCCM).

b. Substantial, ongoing and unreasonable interference with the neighbour’s use and enjoyment of the land.

Depending on the circumstance, (b) could include obstruction of sunlight. There is nothing that I can see that states Privacy. However, this would be a matter for QCAT. Karen Thompson | Vision Strata contact@visionstrata.com.au READ MORE HERE

Such dispute applications should not be looked at as being a threat but more for calling on professional independent assistance with a dispute.

If the owner is not in breach of any by-law and/or the tree is not causing any damage to common property, then there is no jurisdiction with the BCCM for a dispute to be considered. This would be a civil matter between the two owners and come under the Neighbourhood Disputes (Dividing Fences and Trees) Act 2011.

Owners do have a right to natural sunlight and if a tree was blocking this, it could be deemed to be interfering with the owners’ rights in this regard.

Chapter 3 Trees 46 When is land affected by a tree Land is affected by a tree at a particular time if: a. Any of the following applies (ii) the tree has caused, is causing, or is likely within the next 12 months to cause33

The Housing Summit In Late October, I attended the Housing Summit hosted by the Queensland Premier Annastacia Palaszczuk to help resolve Queensland housing crisis along with other stakeholders. It was a diverse and at times confrontational discussion between stakeholders on various parts of the housing spectrum. Initially, SCA (Qld) had to fight very hard to get an invite to the summit, but once we did we made our presence felt.

One important factor we made clear to the authorities to get our foot in the door is that more than 9 in 10 Queenslanders own their own home outright, are paying off a mortgage or rent in the private market. In other words, the most important part of this discussion needed to be centred around this super majority of consumers. The social housing and development sectors obviously have a huge role to play in helping alleviate some of the more pronounced issues, but all reforms, money spent or ideas floated must have in mind making housing more affordable for the 90% of Queenslanders who access their housing through the private market.

There must be a consumer focus, and this is what SCA (Qld) was pleased to bring to the table.

Strata has an array of housing benefits to the vast majority of stakeholders, and SCA (Qld) was strong in “backing in” strata as a big part of the solution for a huge portion of consumers. We need to talk up the benefits of living closer to jobs, services and the ease with which we can generate new supply through strata. As a community, we need to be loud and proud. We received some positive media coverage in the wake of this and we will continue to be vocal.

Obviously, all parties in attendance agree that the current lack of affordability is due to a mismatch of supply and demand. How we generate that supply is of course up for debate.

From a strata perspective, one of the best ways to generate new supply is to help make re-development easier. At present, it takes 100% of owners to agree to terminate a scheme for redevelopment. In practice, this means a prospective developer must buy every lot in a scheme to rip it up and rebuild. All too often, we see prime redevelopment land lost as a result of one hold out under this rule. Whilst we obviously support the exercise of peoples legal rights, its clear that the public policy intent of this rule is not suitable for the present day.

This is to be expected, the Body Corporate and Community Management Act (1997) is 25 years old.

25 years ago we were unlikely to be talking about redevelopment of schemes, rather we were talking about creating them. Scheme termination was informed by a cultural view of housing which was informed by detached housing. With a culture like that, it is no wonder that the so called veto vote was considered fair and reasonable at the time.

Our attitudes have evolved significantly since that time, we understand now that the importance of urban renewal cannot be understated, and whilst our “home is our castle” the idea of one person keeping one-hundred from allowing re-develop their property does seem a little out of step.

For reasons of equity, fairness and of course, some overarching public policy concerns around housing supply, SCA (Qld) will be continue to be an advocate for an 80% threshold for scheme termination. This is a super majority, and for example, means that a lone individual can’t frustrate redevelopment of a suburban six pack.

We believe this can be a lever to generate significant new housing supply in the market.

SCA(Qld) will support consumers always in their pursuit to buy their own home. We believe well built, quality strata that is professionally managed and constructed to a high standard is the best path for a growing portion of our community. We will do everything to make sure the dream is available to as many people as we can.

Laura Bos General Manager

www.qld.strata.community

Understanding fees charged in your BC management agreement

What are Strata Software Migration fees? What is Strata Software Annual software subscription?

What are Strata Software Migration fees?

Do these fees have to feature in a Strata Management Agreement and are they compulsory?

What is Strata Software Annual software subscription? Do these fees have to feature in a Strata Management Agreement and are they compulsory?

36 www.lookupstrata.com.au

In Queensland, many managing agencies do list additional fees for an annual software subscription.

It’s important to note that all body corporate agreements are a private agreement between the managing agency and the owners of each body corporate. Every agency will have different variations in how their agreement is written and applied and specific questions would have to be answered by that agency.

In Queensland, many managing agencies do list additional fees for an annual software subscription. Typically, this is a per lot fee reflecting costs charged by an external software provider for provision of a body corporate management system. Some companies, such as Tower, charge this at cost, while others apply cost plus a premium.

No fee is compulsory in the sense that no agreement is compulsory – body corporates can self-manage or find another agency – but if agencies are listing the fee as part of their agreement then they are probably intending to use the software in the management of your scheme. Owners can negotiate costs with managing agencies, but use of the system itself is likely to be baked into the agreement.

Migration fees are less common, although you might also see items in an agreement along the lines of ‘building set-up’. The fee likely exists to cover the costs of transferring the data of a building from one software provider to another.

For example, in Queensland many managing agencies use StrataMax as their key software provider. If a Body Corporate changes from one agency using StrataMax to another using the same system, the data should migrate easily as most key details are already set-up. However, if the data has to be transferred between different systems, then a fee may be applied to reflect the volume of work to do this. Most owners won’t be aware, but setting up a new building

can be quite a time consuming business depending on the quality and format of the records handed over.

One wider question may be whether software fees should be included in the base management fees offered by managing agencies? As indicated by the question, they tend to be known and fixed costs. The fact that they are not probably reflects their historical status as an add-on, where now they have become something permanent. It’s a small anomaly, but may not matter significantly provided owners check their agreements carefully to ensure they understand the costs in the agreement and what services are included and what are extra. Caveat emptor, buyer beware, applies as the rule here.

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

QLD WEBINAR A deep dive into body corporate financials

17 November | 2 PM AEST CLICK HERE TO REGISTER

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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

Fair water - fair bills P: 1300324701 W: https://fairwatermeters.com.au/ E: info@fairwatermeters.com.au

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SUSTAINABILITY 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

LIFTS & ELEVATORS Innovative Lift Consulting Pty Ltd

RECRUITMENT SERVICES sharonbennie – Property Recruitment

Matching top talent with incredible businesses P: 0413 381 381 W: https://www.sharonbennie.com.au/ E: sb@sharonbennie.com.au

MARKETING Ki Creative Design

Purposeful Design Solutions P: 0451 541 006 E: kiara.mcilroy@gmail.com

Australia’s Vertical Transportation Consultants P: 0417 784 245 W: https://www.ilcpl.com.au/ E: bfulcher@ilcpl.com.au

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