The QLD Strata Magazine | November 2023

The QLD

STRATA MAGAZINE NOVEMBER 2023

What are our requirements to consider the caretaker’s request for an extension?

Page 8 | Mahoneys

If a body corporate decides to tow a vehicle, they must act reasonably

Page 14 | Strata Solve + Hynes Legal

Does a vote to allow a pet need to be unanimous?

Page 36 | Tower Body Corporate

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. 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 Waiting for a member to be financial before a vote is taken

24 Terminating your body corporate manager

William Marquand, Tower Body Corporate

William Marquand, Tower Body Corporate

6 Should the committee meeting minutes include information about significant unpaid levies?

26 Our by-laws only allow short term, not long term, letting

Frank Higginson, Hynes Legal

8 What are our requirements to consider the caretaker’s request for an extension?

Todd Garsden, Mahoneys

10 Maintenance guide – waterproofing membranes Todd Garsden, Mahoneys

14 If renewing strata insurance doesn’t warrant a strata meeting, what does?

Tyrone Shandiman, Strata Insurance Solutions

16 Towing: It is not the free for all that people might think it is!

Todd Garsden, Mahoneys

28 Proximity of common area BBQs. How close is too close?

William Marquand, Tower Body Corporate

30 Our committee wants to stop maintaining lawns and gardens and become a conservation covenant Chris Irons, Strata Solve

32 Can a by-law permit the committee to enter your lot?

Alanna Hill, Mathews Hunt Legal

34 How Foodifox is changing the food delivery game for residential buildings

Chris Irons, Strata Solve & Frank Higginson, Hynes Legal

18 Unlock your buildings value by converting surplus spaces into valuable assets Asset Strata Valuers

20 Even bad by-laws must be enforced

Foodifox

36 Can our body corporate issue fines for opening the fire door?

Stefan Bauer, Fire Matters & Chris Irons, Strata Solve

38 Does a vote to allow a pet need to be unanimous?

Frank Higginson, Hynes Legal

William Marquand, Tower Body Corporate

22 Can a power of attorney be elected to the committee?

40

The QLD LookUpStrata Directory

Katya Prideaux, Mahoneys

Thanks to our sponsors

SC Seymour Consultants

STRATA COMPLIANCE REPORT SPECIALISTS

Waiting for a member to be financial before a vote is taken

Contact the body corporate manager and cite the legislation around counting votes.

The question doesn’t say, but from description, it sounds like the vote was held via a VOC. In that case, the VOC is open 21 days after the date of issue, but it can be considered decided once you have a majority decision. In other words, if you have a committee of seven members and four of them return votes in a way that can decide the matter, the vote can be considered concluded. Once the 21 days have passed, the VOC is concluded, and the votes received should be counted.

However, a committee member cannot vote at a committee meeting or outside a committee meeting if they owe the body corporate a debt at the time of the vote. So, in this case, it seems that only two of the three committee members should have been able to vote.

A member asked to erect a fence on common property as a child safe play area. The body corporate manager delayed the vote until another member was financial. Is this correct?

We have three committee members. Member A asked if they could pay for and erect a fence on the common property directly opposite their lot to provide a child safe play area. I voted yes. The third committee member (B) was unfinancial. The body corporate manager delayed the vote by several weeks until they were financial, and then member B voted no.

How long can a vote remain open? By waiting, did the body corporate management team follow the correct procedure or should the vote have gone ahead?

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There is no indication of what happened to member A’s vote – did they abstain due to a conflict of interest? If they did, and they formally voted that position, there may have been a quorum, and the motion should have passed. If they didn’t, maybe there wasn’t a quorum, and the motion could have been defeated due to lack of a quorum.

As a next step, I would go back to the body corporate manager and cite the legislation around counting votes. You can refer them to the information here: Committee voting See what they say. Maybe the decision was incorrect. Maybe you need to have a new vote and have all members vote to get a more definitive position.

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

READ MORE HERE

Should the committee meeting minutes include information about significant unpaid levies?

What obligation does the committee have to inform the body corporate of significant unpaid levies that have been outstanding for more than a year? Should this information be included in committee meeting minutes?

There is no need to publish levy arrears in committee meeting minutes.

Rather unusually for laws, the BCCM Act requires a body corporate to sue someone once the levies have been outstanding for two years. Lots of committees handle default delicately and don’t necessarily rub people’s noses in the fact they have not paid their levies by publishing that to all owners. A good committee is proactive about levy recovery because the amounts owing don’t go away.

They just accrue and then the other owners are carrying the entire financial burden.

But at the core of it – there is no need to publish levy arrears in committee meeting minutes.

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

6 www.lookupstrata.com.au

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7

What are our requirements to consider the caretaker’s request for an extension?

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Our caretaker, who does not own a lot, has requested an extension.

Are we compelled to put forward a general meeting motion for the top-up?

Our scheme operates under the Accommodation Module. Our caretaker has asked for a 5-year extension or top up to his existing contract. The caretaker doesn’t own a lot.

Can a motion to grant a top-up only be submitted for voting at a general meeting by either a lot owner or the body corporate committee?

Further, is a committee compelled to put forward a general meeting motion for the management rights top-up simply because the caretaker requested it?

Given caretakers will often sell the management rights soon after being granted a top-up, is there any scope for a body corporate to contractually compel the caretaker to remain as caretaker for a specified time? Some owners don’t understand that the caretaker’s asking to have the contract term extended, not necessarily his relationship with our scheme.

If the caretaker does want a top up, and the committee is happy to support the top up on the basis that the caretaker remains the caretaker for a period of time, this can be achieved by structuring the deed of variation in a particular way. A lawyer should be engaged to ensure the wording adopted is appropriate for this to be achieved.

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

There is no right of a caretaker or obligation of a committee to have an extension motion considered.

Only the committee or a lot owner has a right to a motion being included in the general meeting agenda. There is no right of a caretaker or obligation of a committee to have an extension motion considered.

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Maintenance guide – waterproofing membranes

By Todd Garsden, Partner.

Who is responsible for maintenance and repairs continues to be one of the most prevalent issues for owners and bodies corporate.

Waterproof membranes are one of the most common, and misunderstood, maintenance issues within a building.

This article will outline the responsibilities for waterproofing membranes along with the common ancillary issues which arise.

Common property or a lot As a general rule the starting point for any maintenance issue is whether the item in disrepair forms part of the common property (where the body corporate is responsible) or part of a lot (where the lot owner is responsible).

Accordingly, when lots are created in a standard format plan (which is common for standalone houses) the lot owner will be responsible for any waterproof membranes in their lot.

However, when the lots in the scheme are created in a building format plan, the regulation modules transfer the maintenance responsibility of some (but not all) waterproof membranes to the body corporate by relevantly providing:

To the extent that lots included in the community titles scheme are created under a building format plan of subdivision, the body corporate must…maintain in good condition…roofing membranes that are not common property but that provide protection for lots or common property.

Bathroom membranes A common misconception is that in a building format plan, the body corporate is responsible for all waterproofing membranes in the building.

However, although a bathroom waterproofing membrane may provide protection for a lot, it is not a roofing membrane.

This position was confirmed in The Dalgety (Apartments) [2020] QBCCMCmr 118 where the adjudicator relevantly provided:

“…However, I do not consider waterproofing within the bathroom of a lot can rationally be categorised as a roofing membrane...”

Balconies and rooftops For lots created in a building format plan, the most common roofing membranes are those located: • within a balcony of a lot (which acts as a rooftop structure for the lot below); or • on the common property rooftop of the scheme.

The body corporate is responsible for maintaining these membranes.

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)

Maintenance guide – waterproofing membranes cont.

New membranes Many older buildings were not constructed with a waterproofing membrane on balconies. At the time of construction, building standards did not necessitate such a membrane to be installed like in more contemporary developments.

Importantly, the body corporate’s maintenance obligations do not extend to an obligation to carry out an improvement to install a new waterproof membrane except in limited circumstances.

In Bayview Tower [2022] QBCCMCmr 161 the adjudicator relevantly provided: there was no duty on the body corporate under this section to repair a membrane if the balconies are constructed without a membrane However, in Sanctuary Gardens [2007] QBCCMCmr 570, the adjudicator provides: I find that there is no duty on the body corporate under this section to repair a membrane if the balconies are constructed without a membrane. However, there is a duty on the body corporate to take steps to maintain the structure of a lot, and it may be that providing a membrane is the way to do that.

Accordingly, if the lack of membrane will otherwise cause a maintenance issue that the body corporate is responsible for (such as structural damage to the building) then the body corporate would be obliged to install a new membrane.

Otherwise it is the responsibility of the lot owner.

Tiles and ancillary works To carry out waterproof membrane rectification works, any tiles installed on top of the membrane will need to be removed and replaced.

Those tiles (forming part of the lot) are not part of the roofing membrane and will remain the maintenance responsibility of the lot owner.

However, in Esplanade [2014] QBCCMCmr 449 the adjudicator relevantly provided: I further note that installing a new membrane on the open deck areas will require removal of the existing tiles, existing small wooden deck, and the spa. New tiles will be required to replace the existing tiles however the existing wooden deck and spa should be able to be returned to their positions after the waterproofing membrane is replaced. I also note the applicant has nominated a replacement tile that is quoted as less expensive then replacing the tiles with a like tile and pattern.

I am therefore satisfied the body corporate should pay the entire cost of waterproofing the open deck areas, retiling these areas, and replacing the existing fixtures…

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)

Maintenance guide – waterproofing membranes cont.

Damage from the membrane

The tiles are currently in good condition and unlikely to require any further maintenance for at least ten years.

Given the replacement tiles and pattern nominated by the applicant has been quoted to cost less than a like for like replacement, the body corporate should pay the entire cost of replacement tiles.

Similarly, if the waterproofing membrane is not maintained by the body corporate, and this results in damage to the lot, the body corporate can be held responsible for the damage to the lot.

Accordingly, even though the lot owner is responsible for the maintenance of the tiles, they are only being removed and replaced as a result of the body corporate performing its duties. Any ancillary works (such as the replacement of tiles) is work that is part of the membrane replacement and therefore the responsibility of the body corporate.

Damage to the membrane

Conclusion Although regularly argued about, waterproof membranes are not a simple issue. Many disputes will involve multiple different and competing considerations of the above issues.

Mahoneys have assisted and advised countless lot owners and bodies corporate on specific waterproof membrane (or other maintenance) issues.

Even though the body corporate is responsible for the maintenance of the membrane, if a lot owner causes damage to the membrane, the lot owner is responsible for that damage. Relevantly, the regulation module provides: To avoid any doubt, it is declared that, despite an obligation the body corporate may have under subsection (2), the body corporate may recover the prescribed costs, as a debt, from a person, whether or not the owner of the lot, whose actions cause or contribute to the damage or deterioration of the part of the lot.

Your Body Corporate Experts

By-law review and enforcement Lot owner disputes Debt and levy recovery

This protection is commonly relied on by bodies corporate when: • owners carry out improvements to their lot and damage the membrane; • owners install linings on the floor above the membrane and this accelerates the deterioration of the membrane; or • owners do not properly maintain the remainder of their lot (such as the tiles or grout) and this damages the membrane.

General advice / by laws

Dispute resolution

Assignments

Common property changes Land access and activity notices Building defect disputes General advice and disputes Brisbane L 18, 167 Eagle Street Brisbane Qld 4000 07 3007 3777

www.mahoneys.com.au

Amalgamation /termination

www.mahoneys.com.au

Liability limited by a scheme approved under Professional Standards Legislation

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

Off plan (BMS / CMS)

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If renewing strata insurance doesn’t warrant a strata meeting, what does?

Does the decision to renew building insurance, made by the committee behind closed doors without a compliant strata meeting, fulfil the requirements for sufficient disclosure and transparency?

Does the decision to renew building insurance, made by the committee behind closed doors without a compliant strata meeting, fulfil the requirements for sufficient disclosure according to John Trowbridge’s Strata Insurance Disclosure Handbook?

Insurance is a significant item of expenditure with serious ramifications if not executed correctly.

If renewing strata insurance doesn’t warrant a strata meeting, then what does?

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Providing full disclosure to the committee and subsequently incorporating this information into the strata records is a reasonable and acceptable approach.

While strata legislation across Australia imposes conditions on the approval of certain decisions at a general meeting for strata buildings, it’s important to note that decisions related to insurance are not explicitly included in this requirement.

The owners typically elect a committee to take on the responsibility of making certain decisions on behalf of all owners, and buying decisions on insurance is part of the function and mandate of a committee.

In the context of John Trowbridge’s recommendation, the disclosure proposed should undoubtedly be integrated into the owners corporation’s records. These records should be accessible to all owners, ensuring transparency and accountability within the community.

Although I cannot speak on behalf of John Trowbridge and his specific findings, I personally hold the perspective that providing full disclosure to the committee and subsequently incorporating this information into the strata records is a reasonable and acceptable approach. This approach aligns with the principles of informed decision-making and promotes a well-informed committee that can act in the best interest of all owners.

John Trowbridge, Trowbridge Consulting has recently developed a Disclosure Handbook User Guide outlining the intended use of the material within the Handbook.

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

Towing: It is not the free for all that people might think it is!

This new legislation has taken a few steps in relation to towing. The first step is to recognise towing explicitly. And that’s a new thing. The legislation now provides that, yes, the body corporate can tow. But the process around that is the interesting thing.

In effect, the body corporate doesn’t need to go through the usual by-law enforcement process before it tows a car. It doesn’t need to go through conciliation, issuing form 1s or form 10s, applying to the Commissioner’s Office for an order that the car be towed and then wait for whatever period it takes for that order to arrive. This has always been the issue because waiting six months for an order to tow a car is unrealistic.

The government has basically said, ‘Go for it!’. You’ve got to comply with whatever the laws might be, which is the Transport 16 www.lookupstrata.com.au

Operations and Road Use Management Act, which relates to signs implying consent and all that stuff, which we’re not talking about today.

You can only tow owners and occupiers under the BCCM Act. You can’t tow third parties under the BCCM legislation. That means these changes do not capture ‘visitors’ and ‘invitees’.

And remember – neither of those terms are defined in legislation! Nor is an ‘occupier’!

So, that’s simple in theory, but the explanatory note had some very interesting commentary.

It says that if a body corporate decides to tow a vehicle, the body corporate must act reasonably. There are still rights available to an owner or occupier to dispute the body corporate actions, and the body corporate may still be liable if the decision to tow is found to be unreasonable or unlawful.

This seems very deliberate from the government. On the one hand, they’ve provided this quite new approach to towing, but then, on the other hand, they’ve given bodies corporate a pretty big reminder that they need to be careful about what they do.

We urge caution to anybody who thinks this means it’s carte blanche to tow. Yes, the options are now there to tow, but you must be careful.

It is not the free for all that people might think it is. The legislative intent is to resolve things without going to third parties like the Commissioner’s office. It would be crazy to tow a car without trying to find out who it belongs to and asking them to move. That is very unlikely to be capable of being defended as a reasonable decision.

A final, tiny side note is that ‘Motor vehicle’ here has the same definition as it does under the transport laws. It does not include a motorised mobility device, a motorised scooter, a personal mobility device, or a power assisted bicycle. It may not even include a golf cart!

Frank Higginson | Hynes Legal frank.higginson@hyneslegal.com.au Chris Irons | Strata Solve chris@stratasolve.com.au READ MORE HERE

There will no doubt be people who do it. Our issue with this legislation is that the explanatory note says, ‘Hey people, be reasonable’, but there’s nothing as prescriptive to that effect in the Act. Let’s present this scenario. You’ve got a highrise building with predominantly a high turnover of tenants. You’ve got somebody who signed a 12-month lease in the building only one or two weeks ago. They haven’t seen the by-laws. They park in a spot they believe quite reasonably is space in which they can park, particularly if there’s no signage or the signage isn’t clear. Is it reasonable to tow that person? If they parked there for an hour over the length of time? I think there are several factors that would lead you to think it might not be reasonable.

If you’re defending one of these positions from a body corporate perspective, when you’re towed someone without trying to talk to them, you must be able to answer ‘Why’ and be able to justify that to whoever is asking, which is more than likely to be an adjudicator.

A short note here: the issue of an ‘abandoned vehicle’ is not really covered by these changes. By that, we mean a vehicle abandoned on common property, it doesn’t belong to an owner or occupier, or despite all the best efforts of the body corporate, they cannot track down the owner of the vehicle.

17

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HYNES LEGAL

Even bad by-laws must be enforced

A body corporate committee must enforce a by-law on its books, even when the committee believes doing so would be unreasonable, a recent finding by the Office of the Commissioner for Body Corporate and Community Management has confirmed.

The adjudicator’s order [Abian Botanic Gardens [2023] QBCCMCmr 385] highlights the need for committees to be vigilant about the quality of their by-laws, or risk potentially expensive and lengthy legal proceedings.

This is particularly the case with legacy by-laws from developers, which may consist of boilerplate provisions that do not reflect the day-to-day reality of life in a particular scheme.

The Abian Botanic Gardens case involved a lot owner asking the body corporate to enforce an existing by-law about the acoustics of floor coverings.

The owner of the lot one floor above had applied to the committee to replace the carpet in their main bedroom with tiles to match the rest of their unit.

The committee granted approval with conditions, including that the installation complied with the scheme by-laws.

The relevant by-law dated from the building’s original developers, Sunland, and was vague about the specific acoustic rating that was

By Frank Higginson | Hynes Legal

acceptable, stating: “Any approval for hard flooring is conditional upon the Owner or Occupier demonstrating that the installed flooring will achieve an acoustic rating acceptable for a five star apartment building (as published by the Association of Australian Acoustical Consultants).”

There was disagreement about whether a five-star apartment building, as described in the by-law, required a five-star acoustic rating as defined by the Association of Australian Acoustical Consultants (AAAC).

The adjudicator found that since no alternative definition was offered by the committee, the AAAC rating was to be applied.

A subsequent acoustic engineer’s report found “no travertine floors installed by Sunland and its flooring contractor throughout the development achieve anywhere near the AAAC rating of 5 stars as advocated by the Applicant.”

The committee was concerned that applying the by-law in isolation would be “unreasonable, oppressive, gravely unfair, and

very likely discriminatory”, and that requiring the lot owner to remove the hard flooring would impose a penalty of at least twice the cost of installation.

However, the adjudicator found that regardless of any discomfort the committee members may have with the by-law, they have a duty to enforce it.

The adjudicator stated: “The committee cannot withhold enforcement of a by-law until the body corporate adopts something more favourable. The committee must enforce the by-law as registered, unless the by-law is for some reason unlawful…Given that the by-law is not unlawful, there is no reason for it not to be enforced.”

The committee had also suggested the disputing owners resolve the issue between themselves with noise mitigation strategies, such as rugs and felt pads on chairs.

The adjudicator stated: “While this seems to be a practical solution, the applicant has not accepted it and says it is the body corporate’s duty to enforce the by-laws and the protections which they offer to lot owners. That is correct. While the committee may prefer a more conciliatory approach, this does not displace its legislative duty to enforce the by-laws applicable to the scheme.”

From a legal perspective, bodies corporate should regularly check whether their by-laws remain fitfor-purpose. Hynes Legal offers a free by-law assessment service via its website: hyneslegal.com.au/by-laws

FREE BY-LAWS ASSESSMENT THE TIME TO ACT IS NOW With legislative reform on its way and the strata sector thriving, review your by-laws to ensure they remain relevant & enforceable.

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Can a power of attorney be elected to the committee?

An owner recently moved to a retirement home. His son has power of attorney and lives in the unit. The son wants to be elected to the committee as secretary and treasurer. We do not mind electing the son as long as this is legal. We are self managed.

The owner will need to nominate the son to be a committee member.

An individual can be elected as a member of the committee provided that they are nominated by an individual who is a member of the body corporate and are either: 1. a member of the individual’s family; or 2. a person acting under the authority of a power of attorney given by the individual.

The owner will need to nominate the son to be a member of the committee. This nomination will be valid provided that (among other things): 1. i t is made prior to the end of the body corporate’s financial year; and 2. h is father does not owe a body corporate debt at the time the committee member positions are chosen.

Katya Prideaux | Mahoneys kprideaux@mahoneys.com.au READ MORE HERE

22 www.lookupstrata.com.au

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Terminating your body corporate manager

Can our committee, as a corporate decision, terminate our body corporate manager?

Our committee has sent an email to our body corporate manager requesting to terminate the management agreement based on a ‘commercial decision’.

The body corporate manager was appointed by a majority of owners at the last AGM. Is termination possible?

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It is concerning that the committee are looking to override the authority of the body corporate.

The Committee can’t unilaterally decide to end the contract.

However, there is some leeway for them to discuss the contract with the body corporate managers and perhaps negotiate an exit that could be voted on by owners.

In this case, you state that the committee have requested the current managers take action to end the contract. The managers could do this by terminating the contract themselves – they will probably have a termination clause in the contract that allows them to do this within a specified period of days – and in that case, the body corporate would have no say over the matter. The agreement could also be ended by mutual termination. Still, in that instance, the committee would need authority for this action from the body corporate via an ordinary resolution on a motion at a general meeting.

However, all of this depends on the manager’s agreeing to end the contract, which is not something that happens too often. Here, you say that the request has been made based on a ‘commercial decision’, but that decision is presumably one by the committee in what they see as the interests of the body corporate. It is hard to see the managing agency agree to this, as giving up business is probably not in their commercial interests. Most likely they would point out, as you have done, that a majority of

owners appointed them, and they will serve in their capacity until a majority votes them out.

At a wider level, I think you are right to raise some concerns about the committee taking this action – even if they are unsuccessful, it is concerning that they are looking to override the authority of the body corporate. Perhaps there is a good reason for this, but if so, they should communicate with the body corporate why and what they want to do. As an owner, you might look to table a letter of complaint at the next committee meeting or file an owner’s motion. If the matter is serious enough, you may need to consider if the committee needs to be replaced – or at least needs some fresh representatives.

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

Our by-laws only allow short term, not long term, letting.

Our complex by-laws state we can only short-term let our property. Are these by-laws valid, considering the current rental crisis? We were considering long term letting our unit as our holiday returns are very low.

The by-law may be a notice to owners for a particular town planning condition.

Assuming the scheme is regulated by the BCCMA, a by-law of that nature is invalid as it contravenes sections 180(3) and 180(4) of the BCCMA, which relevantly provides: 3. If a lot may lawfully be used for residential purposes, the by-laws can not restrict the type of residential use.

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4. A by-law can not prevent or restrict a transmission, transfer, mortgage or other dealing with a lot.

However, in some circumstances, such a by-law exists as a notice to owners for the purposes of a particular town planning condition.

Accordingly, even though the by-law cannot be enforced against the owner by the body corporate, it would be worthwhile confirming with the council whether there are any restrictions on permanent letting.

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

Proximity of common area BBQs. How close is too close?

Our common area BBQ is just meters from some lot’s bedroom windows. Are there rules about a BBQ’s proximity to living areas?

Our 20 year old unit complex has a gas BBQ area in the middle of the block. The BBQ is just meters away from the bedroom windows of two lots. Are there any rules that regulate how close a common property BBQ can be to lot living areas in terms of proximity and nuisance?

The committee may need to evaluate whether the BBQ should stay in place or whether they should move it.

Most by-laws have a law in them relating to noise.

If you have a situation like the one described where the BBQ is very close to the units, it is easy to imagine this by-law being breached.

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Food smells aren’t usually covered under the by-laws, although they often are a source of complaint. However, smells can be classified as a nuisance, and the body corporate or the affected owners could look to take action on that basis. Section 167 of the Act states:

Section 167 Nuisance The occupier of a lot included in a community titles scheme must not use, or permit the use of, the lot or the common property in a way that— a. causes a nuisance or hazard; or b. interferes unreasonably with the use or enjoyment of another lot included in the scheme; or c. i nterferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.

The smoke drift from the BBQ could also fall into this category. If it was severe enough, the smoke drift could perhaps be classified as a hazard, which would help escalate any complaint.

So, if lots close to the BBQ are having an issue, there may be some legislative grounds to take action. They can make a complaint to the body corporate, and the committee can consider what action to take.

The other side of this is that as the body corporate has a common property BBQ, there is some expectation that people will use it. If you were an occupant at the site who used the BBQ for a quiet family gathering one day, you might be quite annoyed to get a letter from the body corporate advising that the smell from your BBQ had breached the legislation.

You might well ask why the body corporate had a common BBQ in place if it was going to complain about people using it.

As such, I think the committee may need to evaluate whether the BBQ should stay in place or whether it could be removed. Alternatively, maybe there should be some clear rules around using the BBQ – times of use, cleaning requirements and so on. If there is a middle ground where reasonable use of the BBQ can be established, it may be that the owners of the lots closest have to put up with some disruption from time to time. On the other hand, if the use of the BBQ creates ongoing disputes, the body corporate may need to consider if it is fit for purpose.

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

Our committee wants to stop maintaining lawns and gardens and become a conservation covenant

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Our committee wants to stop maintaining areas of common property lawns and gardens and allow these spaces to return to bushland. They plan on entering the estate into a conservation covenant. Is this allowed?

Possibly, although not without considerable challenges.

The short answer is – possibly, although not without considerable challenges.

Looking at this definition from the relevant Queensland Government agency, it appears entering into a conservation covenant will require the disposal of common property under some arrangement, for example, a lease or perhaps even sale. Disposing of common property requires a decision of a general meeting of all owners and, depending upon how long the disposal is for and under what terms, may require a resolution without dissent. In other words, it could be a tricky thing to achieve.

Then there is the separate issue of the proposal to stop maintaining common property. As you may be aware, maintaining common property is one of the fundamental responsibilities of a body corporate, so I think there would be considerable issues with this plan,

even if there is an end goal in mind.

Queensland’s strata legislation does not really contemplate the idea that common property – in which all owners have a shared interest – could be voluntarily signed away to a service provider to manage. At the very least, I highly doubt any of these proposed arrangements would be a decision of only the committee. The committee should really be seeking qualified legal advice on these proposals if they have not already done so.

This is general information only and not legal advice.

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

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.

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Can a by-law permit the committee to enter your lot?

No. Pursuant to section 163 of the Body Corporate and Community Management Act 1997 (‘Act’), a person authorised by the body corporate has a right to enter a lot or exclusive use area to: 1. d etermine whether works, which are the responsibility of the body corporate, are necessary; and/or 2. c arry out necessary works, which are the responsibility of the body corporate.

Unless there is an emergency, the body corporate must give an owner/occupier at least 7 days written notice of the intended entry into the lot or exclusive use area (s.163(2) of the Act). The owner/occupier is then legally required to provide access to the lot or exclusive use area. It is an offence under the Act to obstruct an authorised person entering a lot or exclusive use area pursuant to a valid notice (s.163(5) of the Act).

While some bodies corporate may have by-laws that purport to permit the body corporate, or a person engaged by the body corporate, to enter a lot or exclusive use area without provision of a valid notice pursuant to s.163 of the Act, these by-laws are invalid and unenforceable as they are inconsistent with the Act (s.180(1) of the Act). Adjudicators have consistently upheld this position (see, for instance, comments made in Tea Trees [2017] QBCCMCmr 60 (10 February 2017) and Somerset Gardens [2021] QBCCMCmr 260 [21] (28 May 2021)).

Can a by-law permit the committee to enter your lot or exclusive use area?

We strongly recommend that bylaws of this nature be removed.

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Given the seriousness of entering a lot or exclusive use area without compliance with the notice provisions in s.163 of the Act, we strongly recommend that by-laws of this nature are removed.

Alanna Hill | Mathews Hunt Legal alanna.hill@mathewshuntlegal.com.au READ MORE HERE

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Can our body corporate issue fines for opening the fire door?

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I regularly use our fire stairs to come and go. Our body corporate has alarmed the doors and will be issuing fines for activating the alarm. Is this legal?

I live in a 7-story residential apartment. For exercise, I use the staircase regularly to come and go. The staircase is also the emergency exit route in a fire.

Our body corporate has advised that the external doors will be alarmed and they will issue fines if the doors are opened. Is this legal?

A body corporate cannot issue fines.

Stefan Bauer, Fire Matters: The fire legislation does not prevent the building owner/occupier from placing an alarm on doors as long as it does not restrict an occupier’s egress.

Chris Irons, Strata Solve: You might like to have a look at the resources, provided by Queensland Fire and Emergency Services about building owners and occupiers. There is a fact sheet about fire doors.

Based on your reading of that, you might like to have a conversation with your body corporate about what is and is not possible. If you are an owner, you can submit motions to meetings.

The body corporate is responsible for the management of common property – which these doors likely are – and also must act reasonably

in everything they do. ‘Acting reasonably’ means taking into account their responsibilities under relevant fire safety legislation.

A body corporate itself cannot issue fines.

Whether the body corporate can pass on a fine it receives to the person it considers responsible is another matter, potentially.

This is general information only and not legal advice.

Stefan Bauer | Fire Matters sbauer@firematters.com.au Chris Irons | Strata Solve chris@stratasolve.com.au READ MORE HERE

Does a vote to allow a pet need to be unanimous?

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We are a four unit body corporate in Cairns. A tenant has the owner’s agreement/support for a small pet.

If the vote is three in favour of the pet and one against, is a majority sufficient or does the result need to be unanimous for the pet to be allowed in the complex?

From a voting perspective, it is generally considered that reasonably submitted pet applications cannot be denied.

Approval of a pet is usually made by a majority decision on the committee. In your complex, if all four units are part of the decision making process, a vote of three to one in favour is sufficient. If one unit doesn’t vote, two to one is sufficient. If the votes are equal, the motion is defeated. It’s worth checking your by-laws to see if there are any conditions in a pet by-law that might affect this, but this is the standard procedure.

From a voting perspective, it is generally considered that reasonably submitted pet applications cannot be denied. The state government has proposed bringing in legislation to this effect, and it is expected to be introduced in the next twelve months.

This legislation will formalise the status quo regarding approvals.

However, within that context, it should also be expected that owners who want pets submit credible application forms showing that their pet is suitable for body corporate living and acknowledging that they are responsible for the animal’s behaviour. Body corporate schemes can also consider bringing in by-laws around pet control to help limit any issues.

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

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Higgins Coatings Pty Ltd

Specialist painters in the strata industry W: https://www.higgins.com.au/ E: info@higgins.com.au

Rochele

Prompt & Professional

P: 1300 808 164 W: https://rochele.com.au/ E: jeremy@rochele.com.au

STRATA LOAN PROFESSIONALS 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

DELIVERY & COLLECTION SERVICES Groundfloor™

Australian parcel, mail, and refrigerated lockers P: 03 9982 4462 W: https://groundfloordelivery.com/ E: ask@groundfloordelivery.com

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SUSTAINABILITY

RECRUITMENT SERVICES

The Green Guys Group

sharonbennie – Property Recruitment

Australia’s Leading Energy Saving Partner W: https://greenguys.com.au/ E: sean@greenguys.com.au

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

Humenergy

Essential Recruitment Solutions

Fair Water Meters

LIFTS & ELEVATORS

People, Innovation and Value Sharing P: 1300 322 622 W: https://www.humenergy.com.au/ E: Info@humenergy.com.au Fair water - fair bills P: 1300324701 W: https://fairwatermeters.com.au/ E: info@fairwatermeters.com.au

CONSULTING Strata Solve

Untangling strata problems P: 0419 805 898 W: https://stratasolve.com.au/ E: chris@stratasolve.com.au

FACILITY MANAGEMENT LUNA

Building and Facilities Manager P: 1800 00 LUNA (5862) W: https://www.luna.management/ E: info@luna.management

Elite Building Managers Australia Education for Building Managers P: 0420 520 976 W: https://www.elitebma.com/ E: matt@elitebma.com

RFM Facility Management Pty Ltd

Strata and Specialist Cleaners P: 1300 402 524 W: https://www.rfmfacilitymanagement.com.au/ E: nathan@rfmfacilitymanagement.com.au

Specialising in Strata recruitment P: 0448 319 770 W: https://www.essentialrecruitmentsolutions.com.au/ E: maddison@essentialrecruitmentsolutions.com

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

The Lift Consultancy

Trusted Specialised Advice P: 07 5509 0100 W: https://theliftc.com/ E: sidb@theliftc.com

ABN Lift Consultants

A team of friendly, open minded professionals P: 0468 659 100 W: https://www.abnlift.com/ E: andrew@abnlift.com

VALUERS Asset Strata Valuers

Leaders in Strata Property Valuations P: 1800 679 787 W: https://assetstratavaluers.com.au/ E: workorders@assetstratavaluers.com.au

Adelaide StrataVal

Strata & Community Insurance Valuations P: 08 71112956 W: https://www.strataval.com.au/ E: valuations@strataval.com.au

ROOFING Leaf Shield

PRINT YOUR DIRECTORY HERE

Leafshield Gutter Protection Specialists P: 1300 362 246 W: https://leafshield.net.au/why-leafshield/ E: info@leafsheild.net.au

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