The QLD Strata Magazine | September 2022

The QLD

STRATA MAGAZINE SEPTEMBER 2022

Suggestions for improving strata management service Page 6 | Tower Body Corporate

If you don’t like voting, strata living isn’t for you Page 10 | Strata Solve

What does “not permit” mean and why is it used?

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 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.

More recently Nikki has become 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 some 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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www.lookupstrata.com.au 2 2www.lookupstrata.com.au

Contents 4 MIMOR helps residents do things by the book MIMOR

6 Suggestions for improving strata management service William Marquand, Tower Body Corporate

8 Preventing water from coming through slip joints Bruce McKenzie, Sedgwick

10 If you don’t like voting, strata living isn’t for you Chris Irons, Strata Solve

12 Can we pursue a driver for vehicle damage to common property Tyrone Shandiman, Strata Insurance Solutions

14 Caretaker Spend Allowance: Can the Committee regain control?

Todd Garsden, Mahoneys

16 Potential liability for a casual arrangement Chris Irons, Strata Solve

20 Regional QLD insurance specialist delivers strata premium savings with resilience reports SURE Insurance

22 Owners not permitted to hold their own set of keys Frank Higginson, Hynes Legal

24 Who is responsible to repair a broken intercom system?

William Marquand, Tower Body Corporate

26 Implications of owner improvements to common property Michael Kleinschmidt, Stratum Legal

28

caffolding in our courtyard for S common property repairs William Marquand, Tower Body Corporate

30

onfidence is king: The future of C management rights in QLD SCA (Qld)

32

The QLD LookUpStrata Directory

18 What does “not permit” mean and why is it used?

Todd Garsden, Mahoneys

Thanks to our sponsors

MIMOR helps residents do things by the book

COMMON AREA BOOKING SYSTEM Strata apartment living brings with it many advantages: less maintenance, lower running costs and added security.

But higher density living can also have its downsides when it comes to sharing common amenities.

Anyone who has lived in an apartment complex knows only too well the disappointment of arriving at the gym or pool only to discover every other resident has had the exact same thought at the exact same time.

It’s a scenario that helped to inspire Australian entrepreneur Jake Sharp to create the MIMOR digital platform, an information and booking hub designed to overcome strata-living sticking points and create a more harmonious living environment.

MIMOR (Move In Move Out Register) is a one-stop shop acting as a central digital system for residents and building managers and service providers, comprising vital building information, moving processes, parcel management procedures, general announcements and real-time communications via email and SMS alerts.

MIMOR’s common area booking feature allows residents to choose the facility and time they wish to book, with the confirmation email outlining any rules that need to be complied with.

The booking feature can even be tailored to ensure compliance with health advice, with building managers able to nominate time intervals and the

maximum number of people allowed to use the facility for the allocated time. Time and number limitations can also be reset to reflect revised state or local government restrictions.

And for residents working from home and needing a quiet space and professional backdrop to impress for that important client presentation, the booking system can also be used for conference room facilities.

“Good neighbourly relations are always important, but even more so when you are living in close proximity and sharing the space with dozens or even hundreds of people,” Sharp said.

“An independent booking system provides opportunity for all and certainty for

info@mimor.com.au

mimor.com.au

residents and their guests, knowing they can turn up and enjoy use of the barbeque at their chosen time.”

MIMOR subscriptions are scalable, from three apartments to more than 500. The platform is being translated into 10 languages, with a mobile app version to launch soon.

“The latest data shows almost 10 per cent of the Australian population live in strata schemes. I created MIMOR to be inclusive of as many of those residents and owner corporations as possible,” Sharp said.

For more information, go to

mimor.com.au

Suggestions for improving strata management service Our strata manager does not conduct AGMs or respond to correspondence. How do we tackle the issues and improve their service?

My Strata manager does not appear to be conducting annual AGMs, and won’t respond to emails or phone calls requesting minutes of previous AGMs (or various other issues). I want to replace the manager but this seems impossible when I can’t even arrange a meeting or even communicate with them. What can I do?

If you are not getting reasonable responses, there are multiple avenues available to you.

Body corporate managers are a critical hub for information at your body corporate, but they are not the be all and end all of a scheme. If you are not getting reasonable responses, there are multiple avenues available to you depending why you think there is a lack of communication and what steps you want to take next. Try one or a combination of the following: Review all information you can: Can you go online to get information – most body corporates have a portal facility these days that holds information about your scheme. Check all of your past correspondence. Do you have contact details for Committee members or other owners you can contact? Does your manager have a secretary or are there other admin or finance staff at the body corporate who can be contacted? It is unusual that the manager would be the sole point of information for a scheme – reach out to others.

Make a complaint to the directors of the management company: Most body corporates will have options for contacting company management either on their website or by phoning them directly. Outline what your issues are and see what response you get 6 www.lookupstrata.com.au

from the next level up. Maybe you could make a complaint online by leaving a review for the company on Google or Facebook – that tends to get people’s attention these days.

Arrange an inspection of the books and records: All owners are entitled to inspect the books and records and it is a legal requirement that the company provides you with access within seven days once it has received your written request and fee. If necessary you could hire a body corporate searcher to do the work for you. All meeting notices should be available to you as part of a search.

Talk to other owners: The Committee is probably the best place to start if you have their contact details. If you have any records from previous meetings you should be able to find out their names and lot numbers. If not, speak to other owners in your building. Are they having the same experience as you or do they have different or additional information. If other owners have the same experience it is likely they will want things to change as well.

Submit an owners motion to the Committee to review the situation: If you do this the Committee has to call a meeting within six weeks or give you a reason why not.

If the answer is unsatisfactory you can take the matter up with the Commissioner’s office. By submitting a motion, you can start forcing a dialogue of some kind.

Submit a motion for replacement of the manager: This may be difficult if you don’t have any details about when their contract is coming up but you should receive an annual letter seeking submissions to the Committee and calling for motions. You can submit an owners motion at that stage.

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

Preventing water from coming through slip joints

How do you prevent water from coming through slip joints?

A sealant is a product that does have a lifespan. It doesn’t last forever.

Generally, slip joints or articulation joints should be sealed properly. Regarding sealants, silicone is the word most people are familiar with but there are also some higher grade sealants that are used particularly in construction on walls and concrete slabs.

A sealant is a product that does have a lifespan. It doesn’t last forever. Eventually it would have to be removed and replaced if it’s accessible. Generally speaking, it shouldn’t leak if that sealant has been applied properly.

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If you are experiencing a problem with an articulation joint or a slip joint where there is a leak occurring, it is certainly worth getting someone to replace that sealant in the first instance to try and rectify the problem. If this solves the problem, this is a relatively inexpensive repair as opposed to a structural crack or something in a slab. Things like injection fixes are a lot more expensive.

Bruce McKenzie | Sedgwick bruce.mckenzie@au.sedgwick.com READ MORE HERE

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If you don’t like voting, strata living isn’t for you

We have negotiated savings with our current lift maintenance company. Owners are sick of all the unnecessary voting so can the committee simply approve the decision and move on?

We have negotiated a favourable deal with our current lift maintenance company.

The committee is very happy as it’s a saving of $3000 per year.

The strata manager says we have to get owners to vote on the decision, but this costs money and time.

We have talked to some residents and they are happy to move ahead. Owners are sick of all the unnecessary voting so can the committee simply approve the decision and move on?

10 www.lookupstrata.com.au

If you don’t like voting then maybe living in a strata scheme isn’t for you.

Frankly, if you don’t like voting then maybe living in a strata scheme isn’t for you. And to be blunt, it’s immaterial if you or other residents are sick of voting or not. If it’s required by law, it is required by law.

Expanding on this a bit further, committees can absolutely make some decisions on their own. That said, they certainly can’t make all of them and they are restricted by things such as spending limits and legislative provisions. Any decision outside of those restrictions requires a vote of all owners (and again, at the risk of sounding blunt, if you don’t like that, take it up with the government).

The value of the contract will be a factor in whether this is a committee or general meeting decision. While I am no lift expert, I know enough to hazard a guess a contract of this type will require a general meeting decision.

You also need to remember that while it is great you’ve seemingly got a better, money saving deal, these are ultimately contracts we’re talking about and you can’t just arbitrarily decide to drop one and take up another. There may be consequences.

You engage a body corporate manager to assist the body corporate with situations exactly like this one.

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

11

Can we pursue a driver for vehicle damage to common property A lot owner reversed their car into common property. The claim for damage was made through the building insurance.

Can the Committee pursue the driver for the excess and how?

In 6 industrial units under the Standard Module, each unit has 2 exclusive use car parks. Lot 3 reversed into the front of the building on Lot 42, which is common property.

The committee wanted to use the building insurance for the repairs. The driver, who was at fault, wanted to use their vehicle insurance.

The Committee proceeded to process the claim through their building insurance and now the job is complete. The Committee has asked the driver to pay the small excess, but the driver has refused. Can the committee pursue the amount and if so, how?

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Follow the insurer up and confirm the recovery process is underway.

There are a couple of considerations for this issue.

The Body Corporate and Community Management (Standard Module) Regulation 2020 gives guidance on who is liable for an excess for claims that involve lots, but it does not provide guidance on claims that only involve common property – presumably that is because the body corporate is liable.

If an owner wants to lodge a claim on motor insurance (for example because there is a lower excess), this can be facilitated by the body corporate getting the repairs done (or a quote for the repairs) and submitting a letter of demand to the owner to lodge on their motor insurance.

A letter of demand should include: •

Opening statement that you are making a demand (i.e. We would like to submit a letter of demand in relation to a recent incident. If you have insurance the we recommend this letter is sent to your insurer to lodge a claim under the public liability section of your insurance policy.)

•

Circumstances of the event (include date & description of damage);

•

Why you believe the driver is responsible;

•

Summary of costs and a request for reimbursement (include invoices or quotes for repairs with your demand);

•

Bank details for reimbursement.

As the claim has already been lodged (and possibly settled), the strata insurer is likely to submit their own letter of demand to the driver and in the event they successfully recover all costs, the body corporate will be refunded the excess.

It is therefore our recommendation in this instance the body corporate follow the insurer up and confirm the recovery process is underway. Not only with they recover the body corporate excess but also costs associated with the claim.

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

Caretaker Spend Allowance:

Can the Committee regain control?

Our caretaker’s spend allowance has been increased from $500 to $1000 per item.

Is the arrangement usual, and if so, how do we best control spending?

Our caretaker contract contains a spend allowance: The Manager shall be entitled to pledge the credit of the Owner and incur an expense on behalf of the Owner in respect of any individual transaction for any amount not exceeding five hundred dollars ($500) OR such amount as the Committee of the Owner* may from time to time authorise in writing PROVIDED THAT such credit is pledged or expense is incurred for the purpose of obtaining goods or services used in the performance of the duties of the Manager pursuant hereto (except any duties of the Manager pursuant to clause 4) of the employees of the Owner or for such other purposes as are necessary or incidental thereto. Any such expense shall be paid by the Owner or if paid by the Manager shall be reimbursed by the Owner to the Manager.

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The committee has formally resolved to increase the amount from $500 to $1,000 per item.

It is not limited to isolated incidentals. There is no limit regarding an accumulated amount, or how many items at any time, or how often, or frequency eg per week, per month etc.

Essentially, it is an open operating account at the Caretaker’s discretion.

The first thing the Committee hears about it is after the work has been done or the item has been purchased, and the bill is presented to the Committee for approval and payment.

In 2020/21, Caretaker spent approximately $40,000 on items < $500 without pre-approval, and, with pre-approval per item, $47,000 on items >$500.

Doesn’t seem right to me.

Is this open $500+ allowance legal in QLD? Can the BC override the Committee decision eg by ordinary resolution at an AGM?

Such a clause is a very common (and important) clause that appears in most management rights agreements.

The committee may be able to give a direction (pursuant to another clause in the agreement) to ensure that any such expenses are first run past the committee for approval. The downside to this approach is that it may slow down the performance of duties if the caretaker then needs to wait for the committee to provide some level of approval.

Such a clause is a very common (and important) clause that appears in most management rights agreements. It allows the caretaking functions of the scheme to progress without (generally) unnecessary administrative requirements.

Todd Garsden | Mahoneys tgarsden@mahoneys.com.au

It is important to recognise that there are a number of obligations in the caretaker spending body corporate funds in that it must be for an expense the body corporate is responsible for. It is not an open cheque book.

READ MORE HERE

Regardless, it is the body corporate’s funds and the committee can exercise more control over the spending of those funds if that is what the committee is more comfortable with.

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Potential liability for a casual arrangement With no onsite manager, a resident acts as the point of contact. She holds keys and meets tradies. Is this a reasonable arrangement?

We have no onsite manager, all committee members are investors and don’t live in the complex, and our Body Corporate Manager is approx 30kms away.

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The Body Corporate Manager has organised for one of the resident owners to act as a main point of contact for tradies. She has not been officially appointed as the onsite manager, however, she keeps keys for some areas of common property that others do not have.

There are no minutes about this matter.

Can the scheme be managed like this?

For that owner, this arrangement puts them under a fair bit of responsibility and even potential liability, and I do wonder if this has been considered.

Yes – in a word.

Here’s the more elaborate reply: in your case, given the challenges of having someone on site, it seems – I stress, ‘seems’ – like what might be occurring is the best outcome you can probably get.

That said, all the more reason to try to be as process-oriented as possible: proper decisionmaking, with minutes, communicated as they need to be. If the owner in question has a contract, or anything resembling a contract, then she may fall under the legislative definition for a ‘service contractor’.

I can’t quite tell from your query either way.

Quite apart from anything else, it appears the owner is in possession of body corporate assets (the keys) and seems to have exclusive access to parts of the scheme (common property or otherwise), and really, that issue needs to be resolved as a priority. That is not something that can simply be informally arranged or decided by one person. For that owner, that puts them under a fair bit of responsibility and even potential liability, and I do wonder if they have thought about that clearly. Perhaps it is something you can have a discussion with them about.

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

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17

What does "not permit" mean and why is it used?

Throughout the Act, including in the default bylaws, the wording “not permit” is used.

How do you “not permit” something?

The QLD BCCM Act provides that occupiers must “not permit” either interference with support, shelter, utility infrastructure or utility services, or the use of a lot or common property that causes a nuisance or hazard to others. (s.165 – s.167) The Act’s default By-Laws in Schedule 4 provide that an occupier must “not permit” invitees either to park vehicles on common property or to bring animals onto the lot or common property.

And it is very common to see this admonishment in By-Laws prepared by strata lawyers for bodies corporate.

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However, the Schedule 5 Adjudicators’ Orders do not mention “not permit”.

This is because a by-law cannot be enforced against an occupier.

In what circumstances would an Adjudicator order an occupier to “not permit “ something. More importantly, how do you “not permit” something if you wish to comply with the order?

Another example is that if an occupier is playing loud stereo music and causing a nuisance – it stops the occupier from arguing that they are not personally causing the nuisance, their music player was.

The words “not permit” is to extend the reach of the applicability of the by-law.

The words “not permit” is to extend the reach of the applicability of the by-law.

For example, if a visitor was attending the scheme it is the occupier’s responsibility to ensure that their visitors do not cause a nuisance. If the occupier permitted their visitor to cause a nuisance, the occupier would breach that by-law.

It is also important to remember that the orders in schedule 5 of the Act are not exhaustive. They are examples only.

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

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REGIONAL QLD INSURANCE SPECIALIST DELIVERS STRATA PREMIUM SAVINGS WITH RESILIENCE REPORTS Regional Queensland insurance

assessments that may deliver

specialist, Sure Insurance, encourages

significant premium savings.

Body Corporates to utilise Resilience Reports provided by the North

“We are talking about considerable

Queensland Strata Title Inspection

potential savings with properties that

Program (NQSTIP) as a way to access

score well on the Strata Resilience

potential premium savings.

Report receiving Sure premium reductions of around ten per cent

The NQSTIP at the James Cook

(10%) on average to date – resulting in

University (JCU), offers free property

hundreds and even thousands of

inspection reports and estimates of

dollars in premium savings for

the resilience of strata properties

struggling regional Body Corporates.5

against future cyclone damage along with recommendations, where

“Sure Insurance is committed to

appropriate, for maintenance,

offering more affordable insurance

upgrades or changes to improve

options for regional, North and Far

resilience.

North Queenslanders, and we support the NQSTIP as a way to recognise and

Managing Director of Sure Insurance,

reward proactive Body Corporates

Bradley

who have invested in property

eath, said we strongly

support the NQSTIP and recommend

resilience with lower premiums,5 said

regional Queensland residential strata

Mr

eath.

Body Corporates take up the free Strata Resilience Reports and

The free NQSTIP inspections are

provided for strata properties within 100 km of the coast, north of the southernmost boundary of the Rockhampton Regional Council area,

are in Wind Region C, and properties between 50 and 100 km of the coast are in Wind region B, as shown in the Wind Region map of Queensland.

extending to the QLD/NT border, and include islands off the Queensland

Sure Insurance urges Body Corporates

coast.

to authorise their Body Corporate Manager or Insurance Broker to

Properties within 50 km of the coast

arrange a free NQSTIP inspection and assessment.

The North Queensland Strata Inspection Program (NQSTIP) is funded by the Australian Federal Government, administered by the Queensland Government, and independently developed and implemented by the James Cook University (JCU

).

For more information about the North Queensland Strata Inspection Program visit: https://stp1.hpc.$cu.edu.au/ /

Owners not permitted to hold their own set of keys

We own a holiday let managed by the onsite managers. All keys must be kept in their key safe and we must ask for access when we arrive.

Why can’t we have our own set of keys?

We have an apartment in Noosa in a block of 25 units.

The onsite managers manage the holiday let of our unit and we holiday in the lot every Christmas. The onsite managers have informed us that, in future, we will not have access to a set of keys to our own unit! All keys must be kept in their key safe and we need to ask for access when we arrive. They claim it is now legislation. Is this correct?

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The manager’s approach is a sensible one for the protection of everyone concerned.

I don’t think it is as much legislation as it is good practice and contract.

The letting appointment with the owners may well give the manager the exclusive right to let and manage the unit. That inevitably includes control of access, which is the keys.

It also makes sense otherwise to only have one set of keys to prevent guests from being interrupted. From a guest’s perspective, imagine how unsafe you might feel knowing there are two sets of keys lurking around out there that

could be used when you were not in the room? Also imagine the issues that might arise if the room was entered without the guest’s knowledge and things were stolen. If there were two sets of keys out there who carries that risk? If there is only one, it is the managers.

I think the manager’s approach is a sensible one for the protection of everyone concerned. The owners can get their keys – they just need to do it through the manager. I cant think of any other reason the owners would need keys if they don’t want to interrupt guests?

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

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Who is responsible to repair a broken intercom system?

Our original developer-installed intercom system no longer works.

The committee is reluctant to arrange the repair. Are they required to fix the system?

Is the Intercom system, both at the front door and within each lot, common property?

Our intercom system was installed by the developer when the building was erected 20 years ago. The system is no longer functioning. Should this be replaced by the Body Corporate? Our committee states that the repair of the system is not necessary even though residents disagree.

If it is a body corporate issue, the Committee can’t just ignore the repair, and if they do you might seek resolution through the Commissioner’s office.

Generally speaking, the intercom system is the responsibility of the body corporate while the handset is the responsibility of the lot owner. So, the responsibility for payment depends on what is wrong. You might need a technician to confirm.

If you are not sure in advance what the problem is, you may need to make an agreement with the body corporate to have a contractor attend, accept their advice as to the cause of the issue and have the responsible party make payment to the contractor based on that.

If it is a body corporate issue, then the body corporate has a responsibility to repair and maintain the common property. The Committee can’t just ignore the repair, and if they do you might seek resolution through the Commissioner’s office. Before that stage, you could submit a motion to the Committee to undertake the repair so they can formally vote on the matter.

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In this case, is it that the system is not working in just your lot, or has it stopped working for all lots? If the problem is with all lots, then the body corporate may need to look at installing a new system for all lots. You might offer to help get quotes for this.

If the body corporate does not want to install a new system, it could look at removing the existing set-up altogether. In that case, it can be considered a non-structural change and such a change can include the removal of an item of common property. Approval for this is dependent on cost with three standard improvement limits: • $200 (or up to $300 if approved) x the number of lots: committee resolution.

• More than $2000 times the number of lots: special resolution at a general meeting.

Removing the intercom system may not cost very much, so it is feasible that it could be taken down by a simple Committee resolution.

Whether that is a good question to place in the Committee’s hands could be open to debate.

If the Committee thought the matter was controversial or simply that different owners would have different opinions, they could defer the decision to a vote at a general meeting.

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

• More than the committee spending limit but not more than $2000 per lot: ordinary resolution at a general meeting. (Note: only one resolution of this nature can be passed in a financial year).

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Implications of owner improvements to common property

Many owners in our complex have installed motorised openers to their common property garage doors. The committee has ruled that, following an installation, the maintenance of the garage door becomes the responsibility of the owner. Can the committee do this when these installations should have no detrimental effect on the door or its operation?

The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor.

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Where garage doors, between a lot and the common property, are and always were, motorised, then the lifting motor is part of the door and the Body Corporate is liable to maintain it; see for example The Crescent [2008] QBCCMCmr 56 (19 February 2008).

That is because of the Body Corporate’s obligation to maintain the garage doors and the associated fittings under section 180(2)(a)(ii) of the Standard Module; i.e. ‘The Body Corporate must… maintain in good condition… doors, windows and associated fittings situated in a boundary wall separating a lot from common property’.

Where the same door was originally manual opening only, and has a motor added to it by an occupier for their benefit, then the Body Corporate is excused from maintaining the motor and associated fittings under s180(3).

The interesting bit of this question is whether the Body Corporate can refuse to maintain the rest of the garage door when an occupier has installed a motor. Nothing in s180(3) supports that outcome. The only thing the Body Corporate is excused from maintaining is the fixture or fitting installed by the occupier; i.e. the motor and associated fittings. That however, is not the end of the storey. If any part of the upgrade by the occupier is made to or on the common property, then Body Corporate approval would be required under section 187 of the Standard Module.

That approval can include a condition that the improvement be maintained by the lot owner. Indeed the lot owner must maintain the improvement unless the body corporate specifically excuses the lot owner from doing so; per section 187(4)(b).

to the door being damaged. In summary then, if the entire automation upgrade is inside the lot, then the Body Corporate simply does not have a chance to impose its maintenance condition. If part of the upgrade is on common property, then the maintenance condition could be imposed, but there is every chance that it would be void. The Body Corporate does however get the last laugh – if the upgrade causes damage to the garage door, then while the Body Corporate has to fix the door, it can then recover the cost from the person who caused the damage; whether the occupier who installed the motor, or the occupier who used it to cause the damage, or either or both.

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

The rub is whether the Body Corporate, when giving that approval, can purport to impose a condition on installation of the motor, that the lot owner thenceforth becomes liable to maintain the whole garage door. On balance, that is probably not a reasonable condition unless there was some reliable data to suggest that the addition of the motor would cause damage to the door. Which, of course, begs the question, why would a Body Corporate allow the installation at all if that was going to be the result?

The problem for the Body Corporate is that, like anyone else, it cannot ‘waive, or limit the exercise of, rights under’ the BCCM Act, per section 312. Imposing a condition that the occupier maintain the whole door, limits the occupiers right to require the Body Corporate to maintain the door under section 180. There is also support for such a condition being contrary to the scheme of the Act, back in section 180(5) of the Standard Module. Under that section the Body Corporate can recover the cost of fixing the garage door from the person who’s actions cause or contribute

27

Scaffolding in our courtyard for common property repairs

• cost of potential damage to our patio during construction and repair, • work will be occurring during a period of recovery and rehab from a scheduled knee replacement, • an invasion of our privacy and security concerns during the work period during this period. Should the body corporate consider relocating us during this time?

What are our rights? What is reasonable compensation if we allow this work to proceed?

The likelihood is that you are going to need to negotiate with the body corporate over what works are to take plane, when they are to take place, how your property will be looked after and what, if any, compensation you might receive.

A builder needs to set up 7-story scaffolding to carry out warranty repairs to leaking windows above us. What are our rights? What is reasonable compensation if we allow this work to proceed?

We live on the ground floor with a large patio in an 8-story complex. A builder wants to use our patio to set up 7-story scaffolding to carry out warranty repairs to leaking windows above us.

The job will take approximately 6 weeks. He claims there is no other way to do this job. We are expected to move all our furniture and pot plants and provide full access to our patio. We are working with the body corp to come up with a solution.

Our concerns are: • the builder has refused to compensate us for the use of our deck, • there is no suggestion of cost of removal and storage of outdoor furniture and plants,

28 www.lookupstrata.com.au

It can be frustrating, but sometimes the body corporate has to access a lot to undertake repairs to the common property.

It’s best if the agreement to do this is by mutual consent between the lot owner and the body corporate. However, if such an agreement can’t be reached, then the body corporate does have the right to seek a forced entry to the lot to conduct the repair.

That scenario is best avoided, but that is worth bearing in mind as it is the ultimate option for the body corporate if it can’t reach an agreement with you.

Equally, for any works it wants to do, the body corporate has the financial responsibility for the entirety of the works including leaving the affected area in the condition in which it found it.

In this case, the body corporate would be responsible for the removal and storage (if required) of furniture and plants on your deck and their return when the works are complete.

It would also be responsible for any damage to the area during the works and returning that to its original condition when the work is complete.

The likelihood is that you are going to need to negotiate with the body corporate over what works are to take place, when they are to take place, how your property will be looked after and what, if any, compensation you might receive.

rehabilitation. That could be a reason for the body corporate to delay works. It depends on the urgency of the works required and the capacity for scheduling them. Discuss this with the body corporate and see what is possible.

To protect yourself, keep a good record of the initial condition of the property and what items are being moved. Make sure the body corporate records in writing in advance what it is and isn’t responsible for.

Should you be rehoused? It’s hard to say without knowing the full level of disruption, but it doesn’t sound like the property is uninhabitable. Maybe the body corporate could refer the matter to their insurer to see what they think.

Maybe a strata solicitor will be required to draft any agreement over these matters. You could get your own solicitor, if necessary, to negotiate for you.

The upshot is that you need to talk to the body corporate, understand the position of both parties and make your requests. Find a win-win solution if you can and bear in mind that if you can’t, the resolution is likely to be difficult for all parties.

For any negotiation, there is going to have to be some give and take on both sides. From your perspective, that might start with the understanding that it would be difficult for you to stop the work from happening altogether.

From the body corporate’s perspective it has to understand that while it could probably force the works through, to do so would likely increase expenses and delay the works.

Hopefully, there is a win-win position that can be adopted and so far as possible both sides should look for that outcome.

Are you entitled to any further compensation for permitting the works to proceed? Not automatically, but this could be part of the negotiation depending on the extent of the disruption to your home and life. The legislation states that the body corporate has an obligation to maintain the common property and it has a right to enter your lot to complete necessary repairs. It does not consider compensation to owners. If you make unreasonable requests of the body corporate it could seek a forced entry if necessary. However, gaining entry of this nature, particularly for an extended period of time, is far easier said than done. If you chose to do so, it would probably be quite easy for you to disrupt or slow down the works. On that basis, the body corporate could offer you some compensation if that helps get to a point of mutual consent for the works to proceed.

The same considerations go into establishing the timeline for the works. You mention that someone in the household is undergoing some

See this page on the rights of a body corporate to enter a lot: Entering a lot or exclusive use area.

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

It’s one of the oldest – and truest – sayings in the property industry that “confidence is king”. In the strata community, “confidence” often means taking a leap into the unknown in order to pursue a dream of home or lifestyle.

A lack of consumer confidence is felt acutely throughout the sector, from real estate agents, developers and builders, through to strata managers and service providers.

One of the factors that can impact very heavily on consumer confidence is the contractual fine print and legal obligations that are attached to buying a lot under a strata or community title.

Yet for such an important part of the purchase process, it’s something that has never attracted significant scrutiny in Queensland – until now.

The Queensland Government is currently considering a range of reforms, including the legal obligations that are imposed on buyers who are pursuing their dreams through community title schemes.

Currently property owners in new developments can be saddled with contracts of 25 years for site management services that have been put in place – usually for significant profit – by the developers prior to handing over the body corporate to the first owners.

In some cases, these contracts have required property owners to pay the management rights holder for services that aren’t even needed – such as lift maintenance in a building with no lifts. It’s an increasingly popular way for developers to inflate their bottom line, but it is also increasingly creating reluctance among potential buyers, which in turn impacts on prices for sellers.

SCA(Qld) recognises the legitimacy of some of these contracts, particularly in accommodation areas where there is a high turnover of tenants for short-term stays.

However, in recent years management rights contracts have steadily crept into residential complexes well away from tourist areas, where there is simply no need for them, and certainly no need for the financial handcuffs they place on lot owners.

The issue is almost exclusively a Queensland one. Due to reforms in New South Wales around 20 years ago, there has not been the explosion in the number of Management Rights contracts in that state that we have seen north of the Tweed.

Of the 250,000 lots under Management Rights Australia-wide, approximately 225,000 of them – 90 per cent – are in Queensland.

After consultation with our members, SCA(Qld) has developed a simple plan that more fairly balances the interests of all parties, while ensuring that the engagement of Management Rights occurs only in appropriate complexes, such as holiday apartments.

The key points of our position are: 1

The total term of new service contracts, including for management rights, should be limited to either: a. Three years, in line with the term limit for the engagement of a body corporate manager; or b. 10 years, in line with the approach in other jurisdictions, such as NSW.

2

Original owners (usually developers) should not be permitted to enter into contracts of more than three years than would bind the future body corporate. We believe the body corporate should be free to decide for itself the best way to contract maintenance facilities

3

Other consumer protections are also needed including: a. Clarification of section 3 of the Body Corporate and Community Management (Accommodation Module) Regulation 2020 to define better what is meant by the term “predominantly accommodation lots” when describing a scheme. SCA(Qld) believes “predominantly” should mean 75 per cent. b. Amending the definition of “accommodation lot” in section 3(3) of the Accommodation Module so it no longer includes long-term residential use; c. Improving the review provisions open to a Body Corporate in relation to a contract inherited from the developer. d. And that a special resolution should be required for a Body Corporate to enter into or extend a service contract for more than three years.

Of course we would be amenable to “grandfathering” provisions for existing MR contracts, to protect their value. After all, people who have purchased management rights in good faith are also entitled to share in the confidence we want to achieve for lot owners.

Modelling the Queensland reforms on the New South Wales laws and timeframes will also provide confidence for other aspects of the strata industry supply chain.

For example, the building industry has continued to prosper in New South Wales 20 years after similar consumer protections were introduced there.

Similarly, lenders have continued to finance developments even without the proceeds of lengthy management rights contracts, and there is no reason to believe that would not be the case in Queensland.

What has changed in New South Wales over two decades is that lot owners no longer need to accept lengthy and expensive contracts as part of pursuing their dream home or holiday apartment.

Moving to safeguard the rights of residents, while still respecting the needs of other players in the industry, has helped create the confidence among purchasers that has allowed the industry to thrive. It’s well past time for Queensland to follow.

Laura Bos Laura Bos General Manager www.qld.strata.community

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Northern Body Corporate Management

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Higgins Coatings Pty Ltd

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Dulux Property Services

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WINDOWS & DOORS Windowline Pty Ltd

Australia’s strata replacement window & door specialists

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Arena Energy Consulting Pty Ltd

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Humenergy

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LIFTS & ELEVATORS Innovative Lift Consulting Pty Ltd

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RECRUITMENT SERVICES sharonbennie – Property Recruitment

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