Mondovo

Skip to main content
Category

Body Corporate

Elisha Quigg Gold Coast Lawyers

Enforcement of By-Laws through the Magistrates Court

By Body Corporate, Videos

Did you know that the Body Corporate and Community Management Commissioner’s Office is not the only avenue to enforce a Body Corporate by-law?

In this video, OMB Solicitors Senior Associate, Elisha Quigg, talks about how you can enforce by-laws through the Magistrates Court in a timely and economical way.

Transcript

Hello, my name is Elisha, solicitor at OMB Solicitors. Today I’m going to be talking to you about enforcement of bylaws. Now you’re probably quite familiar with the process of enforcing bylaws through the adjudication process, through the Body Corporate and Community Management Commissioner’s office.

But there’s also another method of enforcement of bylaws which isn’t as common but just as effective that I’d like to talk to you about today. So that is enforcement of bylaws through the magistrate’s court through a complaint and summons process.

Now as we know, bylaw contravention notices can be issued when a lot owner or occupier does not comply with the bylaws. Now sometimes the response to those bylaw contravention notices is either an owner will start complying with the bylaws or alternatively they might just throw that contravention notice in the bin.

So how do we deal with those owners when they throw those contravention notices in the bin and continue contravening the bylaws? So whether you’ve issued a continuing contravention notice or a future contravention notice, there are two ways in which we can enforce them.

Firstly, through the adjudication process, through the Body Corporate Commissioner’s office. In that process you usually have to complete the conciliation first, which as you know can be quite a painful task, particularly when you just want that owner to start complying with the bylaws, and then if that conciliation is not successful, you then have to go through the adjudication process.

Now that can take anywhere between three to six months, which when we’re talking about bylaw contravention, that’s quite a long time for an owner to be noncompliant. So let’s look at the other option, which is proceeding with a complaint and summons for a breach of a bylaw contravention notice.

So if an owner or occupier does not comply with a bylaw contravention notice, there are maximum penalty units of 20 penalty units that apply that can actually be penalised to a lot owner for their failure to comply with a bylaw contravention notice.

Also, if you go down that process of adjudication and you get an adjudicator’s order and they then don’t comply with that adjudicator’s order, there are maximum penalty units of 400 penalty units which apply to a lot owner as a financial penalty that can be pursued through the magistrate’s court.

Now what are these penalty units that I’m talking about? So with 20 penalty units, that equates to about $2,800 in financial penalties. Whereas if you breach an adjudicator’s order which is about 400 penalty units, that equates to about $57,000.

So why would you go down this process? So what you do is you issue your bylaw contravention notice, they don’t comply. You then engage a solicitor to assist you with filing a complaint and summons in the magistrate’s court, where you will receive a return date before the magistrate’s court, where the owner or occupier will actually have to attend court to enter a plea of either guilty or not guilty and then proceed to sentencing.

Now, the reason why we would go down this process is, number one, it is a lot more timely. You’ll actually get before the court within about four to six weeks, as opposed to three to six months.

Also, it sets an excellent precedent in your scheme to ensure that owners are aware that the committees and the body’s corporate are taking the bylaw contravention seriously. It also attracts the financial penalty, which can be attributed to the body corporate, meaning that you’ll end up actually recovering part of that financial penalty.

In addition, it is also an excellent prompt because owners are really reluctant to want to attend court. So if you file the complaint and summons and serve it on them, nine times out of ten, they’re pretty scared of attending court and they end up complying.

OMB Solicitors has had an excellent track record in proceeding down this course, and it is a lot quicker and more efficient for bodies corporate to do so.

So it’s all about weighing up the options of your matter, you either go down the bylaw contravention notice and proceed to adjudication through the Commissioner’s office, or alternatively, you can jump over to the magistrate’s court and proceed with a magistrate’s court complaint and summons. Both have excellent results, you just have to persevere as a committee when dealing with these nuisance and annoying lot owners.

So if you’d like to learn more about how you proceed down this course, please don’t hesitate to get in contact with OMB Solicitors. As I said, we’ve got an excellent track record of getting great results for bylaw contravention processes, and we’re here to help your schemes today. Thanks.

But I don't use it – why should I have to pay

But I don’t use it – why should I have to pay?

By Articles, Body Corporate

Community Title Scheme

Within a Community Title Scheme (yes, I am referring to your “body corporate“) this is a very common statement that we hear often from people – “But I don’t use it, so why should I have to pay for it?”.  Some recent examples of this statement are:

  • I don’t use the swimming pool – why do I need to pay for it to be heated?
  • My windows are on the ground floor and I clean them myself – why do I need to pay for all the other windows being cleaned?
  • I don’t wash my car on the common property – can’t the Body Corporate charge the users of the common property water in the car washing bay?

Looking at that last example, as one of our very astute readers recently commented, not all owners will wash their vehicles and some owners will wash their cars more than others (some owners or occupiers may not even have a car to wash!).

So – with the unfortunate volunteer committee members again having to be the “fun police” – how does a Committee deal with these types of questions?

The scope of a resident’s ability to perform certain activities on common property can be uncertain, particularly if there is no clear regulation with a Body Corporate’s by-laws.

The example we will use today is the ability for residents (owners and occupiers) to wash and clean their vehicles on common property in the car washing bay (ie, in a designated bay).

When we consider the regulation of this activity, we need to consider many aspects including:

  • Nuisance of the activity – is the facility contained within (and part of) the common property?
  • A resident’s right to undertake a normal activity
  • The cost to use the common property including common property water and power
  • EPA/Council controls/impact – detergents, oils and disinfectant wastewater is not permitted to enter the public stormwater drainage.

Firstly, is there a specified area allocated to car washing by the Body Corporate and secondly, is there a by-law regulating the matter?

If there is no specified area within your building/basement, then it is quite possible that washing your car on common property will cause a hazard. Council issues may arise with the common property not having proper drainage, or a proper system with an arrestor pit to stop contaminants going into the stormwater system. Many complexes will lack proper drainage, a dedicated car washing bay and the availability of water to allow residents to properly wash their vehicles.

If this is your situation, then it may be reasonable for a Body Corporate to refuse to allow residents to wash their cars on common property. The chemicals and substances used to wash/clean the vehicle could cause damage to the common property (pipes, plumbing and drainage) and run off into the stormwater drainage.

If your body corporate does have a designated washing bay for vehicles with a proper drainage system that complies with Council regulations, then the by-laws ought to appropriately regulate the washing of vehicles on common property.

Such regulation will typically deal with:

  • hours/time of use (ie, to limit disturbance, it is not to be used during the night-time)
  • duration of use
  • To be kept clean and tidy
  • not to be used for any other purpose other then a car washing bay

Once a dedicated car washing bay is identified by the Body Corporate and an appropriate by-law is put in place, we can now deal with the question of “fairness”.

The inclusion of a car washing bay may be seen as a ‘beneficial facility’ to the scheme which can be a selling point for lots or tenancies. Whilst some owners may never feel the need or want to use the car washing bay, that is not to say a potential tenant or purchaser of that lot, would view the car washing bay in the same way.

Yes – washing a vehicle will increase water usage (and maybe electricity), but it is not for the Committee to police the use of common property water and electricity.

All body corporate lot owners must pay their share of body corporate costs, which is an intrinsic part of community living. The owner’s contribution schedule will detail what is their share of body corporate costs, which will include the shared cost of water usage for common property.

Every lot owner is aware that they will need to contribute to all common property expenses – despite the fact of whether or not they use them.

If lot owners have raised concerns about such expenses within your Body Corporate, then the first step is for the lot owners to come together to discuss this amicably.  As a Committee, you might do this by putting forward the idea of a regulated car washing bay at a committee meeting. This will allow for the other members of the Body Corporate to be informed of the discussion towards the issue raised.

Obviously, how this is approached will be dependent of the size of your body corporate and the issues that are affecting your specific scheme.

If it is not physically (or legally) possible to allow the washing of vehicles on common property to continue, then it should at least be discussed thoroughly to ensure all parties are aware of the concerns and reasons why restrictions to this activity may be implemented by the Body Corporate.

Alternatively, the discussion might result in an arrangement to ensure car washing is regulated in the by-laws, together with communicating this to all owners and occupiers.

The argument of “I don’t use it, so why do I have to pay,” should have no traction within a community living environment. Living in a “community” requires tolerance, respect and an understanding that community property will be used in different ways by residents (or some residents may choose not to use that property at all).  But that is a choice – just in the same way that a resident may choose not to use the swimming pool or tennis court or the communal laundry room.

Balconies and Balustrades…the bane of a body corporate?

Balconies and Balustrades…the bane of a body corporate?

By Articles, Body Corporate

The Bane of a Body Corporate

When driving up and down the Gold Coast Highway, you would be remiss to overlook the many towering high-rise buildings that sprawl the coastline. What may be less discernible, however, is the balconies that extend from these buildings – and which provide a vantage point for owners and occupiers to marvel at the seashore.

However, the responsibility for maintaining balconies and the balustrades that enclose a balcony is a contentious issue in community titles scheme living. The (significant) costs which may be involved in the repair and maintenance of balconies and balustrades only add to the issue.

Is a lot owner responsible, at their cost, for undertaking repairs to a balcony, given they enjoy its use? Or is it the body corporate’s responsibility to complete these repairs?

Format Plan Maintenance

The responsibility for maintaining balconies and balustrades is largely dependent on the type of survey plan with which a body corporate is registered, being either a:

  1. building format plan (“BFP”); or
  2. standard format plan (“SFP”).

This is because the survey plan will define the boundaries of a lot, which in turn, determines the responsibilities for maintenance within a lot.

Building Format Plan

For lots registered under a BFP, lot boundaries are defined by the structural elements of a building, including the floors, walls, and ceilings. In the event a lot is separated from another lot or the common property by a floor, wall, or ceiling, the boundary is the centre of the floor, wall, or ceiling.

Similarly, a balcony area is defined by floors/ceilings, walls and balustrades. Where there is a railing or balustrade, the boundary of the lot will be the outer face of the railing or balustrade.

In the case of a balcony with no upper structural element (i.e. there is ‘open’ airspace above the balcony), the upper boundary will be defined by the extension of the ceiling of the adjoining structure on that lot.

The regulation modules provide that a body corporate is responsible for maintaining, in a structurally sound condition:

  1. foundation structures;
  2. roofing structures providing protection; and
  3. essential supporting framework, including load-bearing walls.

There have been adjudicator orders (see Portside Noosa Waters [2019] QBCCMCmr 623) which have confirmed that a balcony that extends over an area of common property or lot property is considered a “roofing structure that provides protection”.

The effect of this is that a body corporate is generally responsible for maintaining, at its cost, the balcony structures for lots registered under a BFP where they provide “roofing protection” to lower level lots.

However, a lot owner is responsible for maintaining all fixtures and fittings within the lot boundary, including the balcony area, which comprises part of the lot property. This may include any balcony tiles and lights.

In terms of maintaining balustrades, the regulation modules provide that a body corporate is responsible for (among other things) railings, parapets and balustrades on, whether precisely, or for all practical purposes, the boundary of a lot and common property.

Where lots are enclosed (i.e. there is a railing or balustrade which encloses or provides a barrier to a balcony area), the boundary of the lot will be the outer face of the railing or balustrade, as confirmed by the Registrar of Titles Directions.

As a result, a body corporate is generally responsible for (among other things):

  • maintaining the foundation structures of a balcony, this may include the concrete slabs and balcony columns;
  • the waterproofing cavity underneath a balustrade; and
  • replacement of the railings, balustrades and parapets which are situated precisely on the boundary of a lot and the common property.

Standard Format Plan

For lots registered under an SFP, land is defined horizontally using marks on the ground or a structural element of a building. The boundaries of these lots will be defined by the measurements shown on the survey plan. The effect of this is that a lot owner is generally, responsible for maintaining (among other things):

  • the inside of the lot, including all fixtures and fittings;
  • the outside of the building within the lot boundary, including exterior walls, doors, windows and roof; and
  • balcony and balustrades, if contained within the surveyed lot boundary.

The first step in determining whether a body corporate or a lot owner is responsible for maintaining a balcony or balustrade is therefore to identify the survey plan with which that lot is registered.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist body corporate lawyers team has recently seen a number of committees seek advice on the responsibilities for maintaining balconies and balustrades within community titles scheme living.

To ensure bodies corporate understand their statutory obligations and take appropriate action in maintaining the common property in good condition, including any balconies and balustrades which are the responsibility of a body corporate, strata managers and committees should consult with Gold Coast lawyers at OMB solicitors.

queensland

Sound the Alarm: New Fire and Smoke Alarm Laws for Queensland Dwellings

By Articles, Body Corporate

While Queensland Summers are synonymous with beach cricket and barbeques, the warmer weather also brings with it one of the less attractive features of living in a tropical climate… fires.

Before COVID-19 changed the meaning of “hot spots”, the Queensland Government amended the Fire and Emergency Services Act 1990 (Qld) by introducing additional obligations on property owners and managers with regard to the installation and maintenance of fire and smoke alarms in domestic dwellings.

Dwellings refer to any houses, townhouses and units.

What has changed?

Currently, fire and smoke alarms in existing dwellings must:

  1. be photoelectric (i.e., detect visible particles of fire combustion);
  2. not be more than ten (10) years old;
  3. operate when tested;
  4. be installed on each storey and in every bedroom; and
  5. be interconnected with every other smoke alarm in the dwelling.

However, from 1 January 2022, these requirements will apply to dwellings being sold, leased or where an existing lease is being renewed. The new legislation will have the effect of making Queensland properties the safest in Australia with regard to fire safety.

How does this affect bodies corporate?

The Queensland Fire and Safety Services (QFES) is empowered to enforce compliance with the new fire and smoke safety standards. The QFES does not differentiate between lot owners in a community titles scheme. This means that a body corporate, as a separate legal entity, is responsible for ensuring the scheme, including all dwellings, complies with the fire and smoke alarm regulations.

There are significant financial costs, which may be issued to the body corporate by the QFES if the scheme does not comply with the appropriate fire safety standards. These fines are often not covered by insurance, including office bearers’ liability.

If not budgeted for, a body corporate may be required to charge an additional levy to strata owners to cover any fines.

In addition, a failure to comply with the fire and smoke alarm requirements also presents potential issues for bodies corporate negotiating competitive insurance premiums.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist strata practitioners have recently seen a number of bodies corporate enquire as to the effect of the new smoke and fire alarm legislation and how a community titles scheme can ensure it is compliant.

Given the significant penalties which apply for non-compliance, it is important that body corporate managers understand the new requirements and the strict timeframes that apply.

To ensure bodies corporate understand and take appropriate action in complying with the new fire and smoke alarm regulations which come into effect from 1 January 2022, body corporate managers should consult with OMB Solicitors.

On a Scale of One to Ten (Years) The appointment of a building manager in a NSW Strata Scheme

On a Scale of One to Ten (Years): The appointment of a building manager in a NSW Strata Scheme

By Articles, Body Corporate

The Appointment Of A Building Manager In A Strata Scheme

In a year dominated by COVID-19, vaccines and lockdowns, do not be surprised if you missed an equally significant headline from New South Wales’ highest court – the appointment of a building manager in a strata scheme!

When the Strata Schemes Management Act 1996 (NSW) was amended by the Strata Schemes Management Act 2002 (NSW), the legislation restricted a building manager from continuously extending an agreement for more than 10 years after the Amendment Act, including any term or option to renew the agreement.

Previously, a building manager could be engaged by an owners corporation indefinitely.

However, it appears that the recent appeal decision of Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111 has, for the time being at least, affirmed the legislature’s intention when it introduced a 10 year limit on the appointment of a building manager in a strata scheme.

Australia City Properties Management Pty Ltd

In Australia City Properties Management Pty Ltd v The Owners – Strata Plan No 65111, there was a dispute between the building manager and the owners corporation regarding the term of the management agreement (“Agreement”), which was entered into on 30 March 2001 – before the Amendment Act.

While the Agreement, dated March 2001, was for an initial period of ten years, with an option to renew for three (3) additional terms of five (5) years, the building manager and owners corporation entered into two (2) deeds of variation (“Deeds”) in March 2010 and March 2015 – after the Amendment Act took effect.

The Deeds had the effect of extending the term of the Agreement beyond the 10-year limit, such that it had an expiration date of March 2041.

In August 2019, the owners corporation terminated the Agreement, on the basis that the building manager had been “grossly negligent” in performing its caretaking duties. The manager argued that the Agreement was not validly terminated and as such, was entitled to damages in the amount of $2 million. These damages were calculated on the basis the Agreement was for a (total) term of 40 years.

Supreme Court Appeal

The issue on appeal was whether the Deeds in 2010 and 2015 were considered “caretaker agreements” under the Amendment Act, such that they were limited to a term of 10 years.

In determining whether the Deeds were limited to a term of 10 years, the Supreme Court considered their “text, context and purpose”.

Given the purpose of the Deeds was to grant a further option under the original Caretaking Agreement, the Court held that the Deeds were, in fact, separate “caretaker agreements”, as defined by the legislation.

The effect of this is that the Deeds were “read down” to expire on 29 April 2025, rather than March 2041, such that the Agreement was limited to a term of 10 years.

As a result, any award of damages to the service contractor for unlawful termination of the Agreement would be calculated up to April 2025.

While Australia City Properties Management may ultimately reach the High Court of Australia, for the time being at least, the decision by Chief Justice Bathurst has provided guidance on the term of a management agreement in a strata scheme.

Will Queensland follow?

While the term of appointment for building managers in NSW strata schemes is (currently) capped at a maximum term of 10 years, the same cannot be said of schemes across the border.

In Queensland, bodies corporate which are regulated by the Body Corporate and Community Management (Accommodation Module) Regulation 2020 (“the Accommodation Module”) may appoint a service contractor for a maximum term of 25 years, including any terms of extension.

And if you thought snap lockdowns were long…

Bodies corporate regulated under the Body Corporate and Community Management (Standard Module) Regulation 2020 are currently restricted to a term of ten (10) years.

Given the significance of the decision in Australia City Properties Management, it will be interesting to see if Queensland follows the lead of New South Wales and implements a limit on the term of a caretaking agreement for schemes regulated under the Accommodation Module.

OMB – Specialist Strata Professionals

OMB Solicitors’ specialist strata practitioners have recently seen a number of building managers attempt to circumvent the 10-year limit by requesting owners corporations extend their management agreement beyond this term.

Owners corporations should consult with OMB Solicitors when reviewing (or varying) the terms of its management agreement, to ensure it complies with the legislation.

Book now