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The official newsletter of Unit Owners Association QLD

FOR IMMEDIATE ATTENTION OF ALL LNP MPs The Unit Owners Association of Queensland (UOAQ) has been lobbying the state Labor government in recent years for legislative change in the areas of “management rights” and “building use” to reduce the cost of living for the increasing number of Queenslanders who call their unit or apartment ‘home’ and also to ensure more investor owners are attracted to Queensland. The opportunity to put the legislation right for the benefit of unit owners and the Queensland tourist accommodation industry is currently being considered by the Attorney General for presentation to Parliament. These two issues are of immediate importance to those members representing high density unit living populations. The LNP now has the opportunity to do what Labor would not:

1. 2.

JULY 2012 2011 MARCH

Jann Stuckey MP Ray Stevens MP John-Paul Langbroek MP Ros Bates MP Rob Molhoek MP Michael Hart MP

Verity Barton MP Jon Krause MP Mark Boothman MP Michael Crandon MP Alex Douglas MP

Limit management rights contracts to three (3) years instead of the current 25 years, prohibit ‘top-ups’ & allow the market to be tested at the end of management rights contracts as good business practice demands. Class 2 building use

Every member of the Queensland Parliament is urged to acquaint themselves with the issues being considered in the current Management Rights Review. The full UOAQ submission to the review is available on the UOAQ web site at uoaq.org.au. This opportunity will not come around again anytime soon, so your earliest

attention regarding these issues is of great importance. A brief overview of management rights and building use is provided on the following page. The UOAQ is more than happy to meet with MPs to provide any further information or clarification of these important issues to Queensland residents.

What are Management Rights?

Class 2 Building Use

Management Rights (MR) is a contract granted by a developer, and then the Body Corporate (unit owners) to a person or company to perform caretaking and letting agent functions within a Body Corporate and Community Management scheme, for up to 25 years subject to the Management Module. MR contracts are the largest cost factor and cause of dispute in any BCCM scheme when Caretaker /Letting Agents do not perform to the terms of their contract or try to extend their contract by ‘top-up’ and ‘contract extensions’. This top-up creates a perpetual contract that can be sold for 5 to 5.5 times annual earnings. This expense – often millions of dollars – adds to the cost of unit ownership and tourist accommodation. The UOAQ policy on all new Management Rights contracts is:

A class 2 building is specified by the Building Code Australia as a residential building. Queensland has allowed these buildings to be used for transient and tourist short term accommodation exposing residents to high fire risk and no access or egress for persons with a disability, contrary to the Disability Discrimination Act 1992 s 23 and Premises Standard.

• • • •

MR contracts must be limited to three (3) years. MR contract ‘top-ups’ must be prohibited. MR contract extensions must be prohibited. MR contract value determined by open market bidding every three years.

These four steps will practically eliminate caretaker/letting agent disputes with bodies corporate avoiding expensive litigation. The 5 to 5.5 times goodwill factor will be eliminated, reducing ownership and tourist accommodation costs. The tender market will determine MR contract value every three years.

The owners of a building are responsible for ensuring the correct facilities are provided to and within a building. Compliance with legislation is the building owner’s responsibility, but the owner’s compliance authority is removed by BCCM Act 1997 s 180 (3) ‘Limitations for By-laws’ stating:“If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.” This legislation is offensive to the Commonwealth Disability Discrimination Act 1992 exposing unit owners to prosecution. ($25,000.00 fine C v A [2005] QADT 14). The UOAQ policy is that BCCM Act 1997 s 180 (3) must be repealed, and Class 2 buildings must be used for long term residential purposes, to protect the safety, health and wellbeing of unit residents, and remove unit owners from potential prosecution. The UOAQ has presented a plan for orderly transition to correct building use.

Become a Member Today Click to Join now www.uoaq.org.au

EST. 1978


UOAQ - Become a Member Today! From the Editor www.uoaq.org.au Unit Owners Assocation QLD 6th Floor. 333 Adelaide St, Brisbane Q 4000 E help@uoaq.org.au P 3220 0959 uoaq.org.au

Brisbane

P 3220 0959 or www.uoaq.org.au and request to communicate to a particular person Sue Ekert, Bob Boundy, Elle Young, Paul Cassels. Published by Unit Owners Association QLD

Paul Cassels

I have been following up on the new WHS laws and a member has sent in his experience that will help all our members, “A Caretaker, acting on legal advice, has

been trying to impose the cost of OH&S costs such as an OH&S plan, traffic management plan, staff training etc onto our Body Corporate” Follow-up to Worksafe from a member resulted in the following: read Page 3 I hope this article will assist our membership to understand what our rights and responsibilities are, please contact the Worksafe infoline and send your written responses to help@ uoaq.org.au we will continue with this issue until we all understand what is happening in QLD.

Editor Paul Cassels

Gold Coast

Wayne Stevens, Greg Carroll, Roger Dearing

Art Direction

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Reducing Costs & Increasing Value for Unit Owners

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We appreciate the support of our sponsors to help us do the work we do. To become a sponsor of UOAQ, please contact Paul Cassels on 3220 0959

ORIENTATED { WEBRESULTS DESIGN & MARKETING }

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CTS Management Suite 35, Level 6. “Northpoint” 231 North Quay Brisbane QLD 4000 Telephone 07 3211 4445 Fax 07 3211 4410 Mobile 0419 741 066 Email coralie.mott@ctsm.com.au www.ctsm.com.au

Coralie Mott

(BA Dip Ed, Cert IV in BCM)

Director and Body Corporate Manager

Quality Building Management Pty Ltd.

Strata Inspections and Reporting

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Unit Owners Association QLD

Help for Members

Members of the UOAQ are welcome to contact committee members of the association for any help on any body corporate matter.

Branding and Identity

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Disclaimer

Articles contributed to this newsletter are published as a service to members and do not necessarily reflect the opinion or policy of this Association. To contact the committee of the UOAQ for assistance with a body corporate matter please e-mail help@uoaq.org.au

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UnitNews July 2012

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Quick News

Article from: Information Services Officer, Advisory Services. Office of Fair and Safe Work Queensland Department of Justice and Attorney-General

Worksafe infoline WPH&S “A caretaker, acting on legal advice, has been trying to impose the cost of OH&S costs such as an OH&S plan, traffic management plan, staff training etc onto our BC.

2011. Certain strata title bodies corporate are excluded from being regarded as a person conducting a business or undertaking (PCBU) under the WHS Act 2011. The exclusion is provided in section 7 of the Work Health and Safety Regulation 2011 (WHS Regulation 2011) as follows; 7 Meaning of person conducting a business or undertaking—persons excluded

Follow-up to Worksafe from a member resulted in the following: An initial call to the Worksafe infoline provided quite a comprehensive response. But on receiving a contradictory view from the caretaker’s legal representatives, I requested a written response via the online WHS Enquiry form. It was a more condensed response, but comparable to the verbal response. The basic proposition put forward that evoked the response was as follows: • I am an owner within a Body Corporate that has no employees. • Under the terms of the BCCM Act, a Body Corporate cannot trade. • Both the Letting Agreement and the Caretaking Agreement envisage a management rights owner that conducts a business. • Under the Caretaking Agreement, the caretaker is responsible for managing the common property. • The Caretaking Agreement does not impose OH&S compliance responsibility on the Body Corporate. • The Body Corporate has never granted rights for any party to use the common property for business purposes. • The Caretaking Agreement provides for the Body Corporate to meet the cost of any specialist services for work to the common property. Does the Body Corporate have any responsibilities under the Work Health & Safety Act, or is it excluded under section 7 of the Work, Health & Safety Act? In the interests of all Qld body corporate owners, I have appended the emailed response from Worksafe. This addresses arguments put forward by lawyers that OH&S is a BC cost. In our situation, we accept that we are contractually bound to bear the cost of work to the common property associated with OH&S standards.” Worksafe Response - 14/3/2012 Thank you for your email regarding the duties of residential strata title bodies corporate under the Work Health and Safety Regulation

(1) (2) (3)

For section 5(6) of the Act, a strata title body corporate that is responsible for any common areas used only for residential purposes may be taken not to be a person conducting a business or undertaking in relation to those premises. Subsection (1) does not apply if the strata title body corporate engages any worker as an employee. In this section— strata title body corporate means a body corporate as defined under the Body Corporate and Community Management Act 1997, schedule 6.

The wording of section 7(1) of the WHS Regulation 2011 requires consideration of whether the common areas under the control of the body corporate are used ‘only for residential purposes’. Under this test, it is immaterial how private lots in the complex are being used. The application of the exclusion under section 7(1) of the WHS Regulation 2011, it is irrelevant if: • •

a lot in a strata title residential complex is rented out to a tenant (whether for short term rental or otherwise) rather than being occupied by an owner-occupier; or a lot in a strata title residential complex is used as a home office by the occupant.

In addition, the exclusion for the strata title body corporate under section 7(1) of the WHS Regulation 2011 would still apply if a person is engaged under a contract for service to carry out maintenance, service or repair work at or on the common property for the complex from time to time. In these circumstances, the contractor coming to the complex to carry out the work will have a duty of care under the WHS Act 2011. These activities on their own do not mean that a strata title complex comprised entirely of residential lots is anything other then residential for the purposes of section 7(1) of the WHS Regulation 2011. The alternative view in which legal obligations fluctuate depending upon activities at the strata title complex at a particular point in time would be impractical, difficult to apply consistently and would not be reasonably intended by the legislation.

BRISBANE - GOLD COAST - REDCLIFFE Continued from Last Issue Working with owners to create happy, healthy and harmonious communities.

CLICK HERE For a Quote Today

enquiries@capitolbca.com.au uoaq.org.au

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CLICK HERE To learn about us

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Feature Story

Building Certification Review Building Certification Review_ Improving building certification in Queensland The Improving building certification in Queensland discussion paper ( 457 KB) was available for comment until 30 August 2011. The Queensland Government asked for feedback on ways to improve the building certification system in Queensland. The discussion paper outlined a range of measures proposed to improve the efficiency, transparency and reliability of the building certification system. These measures were aimed at: • • • • •

Making sure Queensland’s buildings are compliant while still being affordable Supporting and strengthening the building certifier’s role Improving building certifiers’ ability to perform their important role within the building system Ensuring that the building regulatory system is effective in deterring conduct that constitutes a conflict of interest or may not be in the public interest improving the enforcement of building regulations.

The paper also canvassed options for improving the disciplinary arrangements for private certifiers and involving key stakeholders in the building certification system. Have your say The Improving building certification in Queensland discussion paper closed for public consultation on 30 August 2011.

Click here to view the paper 457 KB

Background Building certification involves independently checking and approving building work to ensure it complies with the safety, health, amenity and sustainability standards specified in legislation and building codes. The Queensland Government through Growth Management Queensland is reviewing and improving Queensland’s building certification system to address industry and community concerns. The review will help Queensland’s building certification system efficiently respond to the changes that have occurred in the building industry over the past 10 years, where increasingly complex buildings have been approved against a background of sophisticated codes, planning schemes and pre-building requirements.

Please write to your state government elected representative and ask the question what has happened to this review?

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UnitNews July 2012

Suite 35, Level 6, "Northpoint", 231 North Quay Brisbane Qld 4000 Phone 07 3211 4445 Fax 07 3211 4410 Email info@ctsm.com.au

www.ctsm.com.au Proud Member of:

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Quick News

The

Forgotten People Management Rights (MR) is a contract granted by a developer, and then the Body Corporate (unit owners) to a person or company to perform caretaking and letting agent functions within a Body Corporate and Community Management scheme, for 10 or 25 years subject to the Management Module. MR contracts are the largest cost factor and cause of dispute in any BCCM scheme when Caretaker /Letting Agents do not perform to the terms of their contract or try to extend their contract by ‘top - up’ and ‘contract extensions’. This top – up creates a perpetual contract that can be sold for 5 to 5.5 times annual earnings. This expense – often millions of dollars – adds to the cost of unit ownership, and tourist accommodation. The UOAQ policy on all new MR contracts is: • MR contracts must be limited to three (3) years. • MR contract ‘top – ups’ must be prohibited. • MR contract extensions must be prohibited. • MR conversions Standard to Accommodation Module must be prohibited. • MR contract value determined by open market bidding every three years.

1. Sir Robert Menzies, 22 May 1942 Jann Stuckey MP Ray Stevens MP John-Paul Langbroek MP Ros Bates MP

Rob Molhoek MP Michael Hart MP Verity Barton MP Jon Krause MP

Mark Boothman MP Michael Crandon MP Alex Douglas MP

ACTION BY ELECTED MEMBERS OF QLD PARLIAMENT The Unit Owners Association of Queensland (UOAQ) has been requesting Government for twelve years (Sir Robert’s “Forgotten People”) for equitable legislation for unit owners. The opportunity to put the legislation ‘right’ for the benefit of unit owners and the Queensland tourist accommodation industry is currently before the Attorney General for presentation to Parliament. Every elected member of the Queensland Parliament is urged to acquaint themselves with the issues being considered in the current MR review . The full UOAQ submission to the MR review is available on the UOAQ web site at www.uoaq.org.au The matters contained in the MR review, and body corporate matters generally, are of immediate importance to those members representing high density unit living populations. The existing situation of inflated MR contract prices, where unit owners receive 1 to 2 percent return on investment and caretaker/letting agents and booking agents receive 40 percent is unsustainable. The time to establish a viable economic framework is now. Queensland is the only Australian state to embrace this MR contract regime, that is currently destroying the unit investment industry and tourism accommodation in Queensland.

These five steps will practically eliminate caretaker/letting agent disputes with bodies corporate avoiding expensive litigation. The 5 to 5.5 times goodwill factor will be eliminated, reducing ownership and tourist accommodation costs. The tender market will determine MR contract value every three years. Class 2 Building Use. A class 2 building is specified by the Building Code Australia as a residential building. Queensland has allowed these buildings to be used for transient and tourist short term accommodation exposing residents to high fire risk and no access or egress for persons with a disability, contrary to the Disability Discrimination Act 1992 s 23 and Premises Standard. The owners of a building are responsible for ensuring the correct facilities are provided to and within a building. Compliance with legislation is the building owner’s responsibility, but the owner’s compliance authority is removed by BCCM Act 1997 s 180 (3) ‘Limitations for By-laws’ stating: “If a lot may lawfully be used for residential purposes, the by-laws cannot restrict the type of residential use.” This legislation is offensive to the Commonwealth Disability Discrimination Act 1992 exposing unit owners to prosecution. ($25,000.00 fine C v A [2005] QADT 14). The UOAQ policy is that BCCM Act 1997 s 180 (3) must be repealed, and Class 2 buildings shall be used for long term residential purposes only, to protect the safety, health and wellbeing of unit residents, and remove unit owners from potential prosecution. The UOAQ has presented a plan for orderly transition to correct building use.

uoaq.org.au

Management Rights | Levy Collection | Dispute Resolution Community Management Statements | Review of By-laws Establishment of Schemes | Construction Defects Lot Entitlement Disputes | Exclusive Use Conveyancing

BODY CORPORATE MATTERS? ENGAGE THE BODY CORPORATE LAWYERS

T: 07 3393 0433

F: 07 3393 0533

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July 2012 UnitNews

5


Feature Story Amendments to the Building Act 1975 - Sustainability declaration removal Purpose To advise the Cost of Living Amendment Bill 2012 (COLA) amendments to the Building Act 1975 have been passed by the Queensland Parliament and that sustainability declarations are no longer required when selling or advertising residential property Background COLA was passed by the Queensland Parliament on Tuesday 19 June 2012 amending the BA. One of the objectives of the Bill was to reduce real estate red tape by eliminating the sustainability declaration.

Building Act 1975 Amendments The amendments to the BA commenced on Wednesday 27 June 2012 and removed all requirements to complete and make available a sustainability declaration. Sellers are no longer obliged to prepare and sign a sustainability declaration prior to advertising a property for sale Where a sustainability declaration has been prepared there is no longer any requirement for the seller or agent to make copies available or give copies to a potential buyer on request. The amendments retain protections for buyers and sellers where inaccurate or misleading information has been included in a sustainability declaration. Specifically: •

a contract may not be terminated simply because of a false or misleading sustainability declaration a buyer who has been disadvantaged because of a false or misleading sustainability declaration may still be awarded compensation.

PAMDA Amendments and pending repeal The Property and Motor Dealers Act 2000 was also amended to remove related sustainability declaration requirements. Contact for further information buildingcodes@dlgp.qld.gov.au plumbers@dlgp.qld.gov.au If you have not received this Building and Plumbing Newsflash directly from ‘Enquiries (BCQ)’, you can subscribe via: buildingcodes@dlgp.qld.gov.au DISCLAIMER: The information contained in this Newsflash is provided by the State of Queensland in good faith. The material is general in nature and before relying on the material in any important matter, users should carefully evaluate its accuracy, currency, completeness and relevance for their purpose. It is not intended as a substitute for consulting the relevant legislation or for obtaining appropriate professional advice relevant to your particular circumstances. The State of Queensland cannot accept responsibility or liability for any loss, damage, cost or expense you might incur as a result of the use of or reliance on information contained in this Newsflash. It is not intended to be, and should not be relied upon as the ultimate and/or complete source of information.

ASBESTOS SAMPLING 2 Part Series from last issue Will Continue next month 6

UnitNews July 2012

Guidelines for inspection of class 2 to 9 buildings The Department of Housing and Public Works has released Guidelines for inspection of class 2 to 9 buildings ( 2.9 MB).

Click here to view the paper The guidelines provide building certifiers with guidance on how to meet their responsibilities for sufficient inspections under the Building Act 1975 (BA) and the Building Regulation 2006 (BR). A building certifier is responsible for managing the building approval and inspection process with all relevant practitioners. This important role helps to ensure that all aspects of the building work comply with the building assessment provisions of the BA. Building certifiers are required to undertake sufficient inspections of buildings at stages at which the building development approval states the work must be inspected. In practice, this means that a building certifier is required to take a holistic view of a building rather than just consider a single aspect, such as structural adequacy. The BR currently requires mandatory inspections for more simple buildings and structures such as houses (class 1a buildings) and sheds and garages (class 10 buildings and structures). Guidelines are available for these classes of buildings to assist building certifiers to undertake inspections. The BR does not currently provide a similar inspection schedule for class 2 to 9 buildings (which include multi-storey residential buildings, office buildings, shops, public halls and commercial and industrial buildings). These guidelines apply a risk-based approach to the inspection of class 2 to 9 buildings. The guidelines aim to provide practical and effective methods for building certifiers to meet their statutory duties and obligations. A risk matrix, with examples of suggested application to particular buildings, forms part of the guidelines and complements the risk-based approach to inspections. The guidelines have been developed after extensive consultation with industry stakeholders such as the Australian Institute of Building Surveyors, Housing Industry Association, Master Builders Association - Queensland, Queensland Fire and Rescue Service, Society of Fire Safety - Engineers Australia, The Queensland Building Services Authority and the Local Government Association of Queensland. The guidelines, made under section 258 of the Building Act 1975, take effect from 1 August 2012. They will be an important aid for industry for the certification of class 2 to 9 buildings. Contact the department: For more information, please contact Building Codes Queensland on 07 3239 6369 or free call 1800 534 972.

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Building access standards for people with a disability Changes to the Commonwealth Disability Discrimination Act 1992 (DDA), mean that certifiers and people who are responsible for the design, construction and management of a building must comply with the Disability (Access to Premises - Building) Standards 2010.

Click here to view the paper 152 KB These standards have been incorporated into the Building Code of Australia 2011 and came into effect on 1 May 2011. The standards apply to building covered by the Building Code of Australia and: • Contain provisions for non-discriminatory access to public buildings for people with a disability • Provide a nationally consistent set of provisions that detail what must be done to provide for non-discriminatory access to buildings for people with disability.

Hartley’s Body Corporate Management ‘Looking after all your Body Corporate Needs’

Access Panels The Commonwealth Government has recommended that state governments establish specialist bodies - known as access panels that can help building certifiers apply the Premises Standards. These can be used where the applicant wishes to use the unjustifiable hardship provisions or an alternative building solution.Download the statutory guideline ( 179 KB) on using the DDA hardship provisions or alternative solutions with advice from access panels. If you need specific advice or assistance on developing an alternative solution under the BCA relevant to access for people with a disability or you would like advice on whether there may be valid grounds for unjustifiable hardship, the following people have advised that they have expertise in access requirements and are available to provide advice. They have agreed to abide by a code of conduct developed by the department and have agreed for their names and contact details to be published. • Bruce Shephard Ph 07 4721 4750 or 0422 207 434 • Mark Anderson Ph 07 3553 3364 • Martin Clark Ph 0400 232 468 • Michael Ryan Ph 07 3356 2486 or 0412 173 378. An access panel may consist of one or more members each with specific expertise in a particular area. The number of panel members to hear a matter and their particular expertise will depend on the matter being addressed. Any access panel established in Queensland is not a statutory panel established under law. Members of a panel are private individuals who are entitled to charge commercial rates for any advice they provide.

■ Financial Management ■ Agendas & Meetings ■ Administration of your Scheme ■ Maintenance ■ Dispute Resolution ■ Compliance

The decisions and recommendations of an access panel regarding unjustifiable hardship and alternative solutions are advisory only under the DDA. While access panels cannot provide certainty that compliance with the DDA has been achieved, the process has been developed to assist certifiers and owners with compliance matters and to assist in responding to complaints. Note that complaints of discrimination may arise under the DDA even where the recommendations of an access panel are followed.

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July 2012 UnitNews

7


CONSUMER PROTECTION FOR

UNIT OWNERS

Who’s Eating your Pie.. Who’s Eating your Pie.. err k a 0 e rerett4a,k,22220 a C Ca$$224

Community Power $8,884

35%

35%

Minor Expenses $4,190 Fire Control $4,842 Minor

Expenses $4,190

14% 14% 13%

9% 6% 7% 8% 8% 6%

Community Power $8,884

9%

BCM Charges $5,282

R & M - Lifts $5,282

BCM Charges $5,282

We would like to acknowledge our sponsors throughout 2012. We appreciate your continued support.

Your Details. Join Today Title

Membership Details I enclose

Name of complex

Name Phone

Total units in Complex

Mobile Email Address Postcode Postcode

State

Hartley’s Body Corporate Management

R & M - Lifts $5,282

Insurance $5,282

help@uoaq.org.au (07) 3220 0959 Level 6 / 333 Adelaide Street Brisbane Q 4000 GPO Box 2359 Brisbane Q 4000

Management Pty Ltd.

yourstratamanagement.com.au

7% 8% 8%

Insurance $5,282

CTS Management

Quality Building Strata Inspections and Reporting

13%

Fire Control $4,842

Building Services $9,590

Building Services $9,590

State

$60

$55 (If over 60 years and you live in a unit)

Membership Type Building Format Plan

Standard Format Plan

Direct Deposit/EFT: Bank MACQUARIE BANK BSB 182-512 Account 9 6135 3547 Name UNIT OWNERS ASSOCIATION OF QUEENSLAND INC

Join Now

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EST.

1978

Unit News Online - UOAQ JULY  

The official magazine of Unit Owners Association Queensland

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