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Juliette Nairn Gold Coast Lawyers

The First AGM – What are the Tips and Traps

By Body Corporate, Videos

In this video, OMB Solicitors Partner, Juliette Nairn discusses the tips and traps of the first annual general meeting of a body corporate.

 

Thank you for taking the time to log on today and have a look at this video. This video that we are doing today is focusing on that particular first Annual General Meeting of a body corporate where the original owner is extracting themselves from the strata scheme and the new lot owners are coming through. 

In our property market at the moment, we’re going through a property boom. We’re seeing a lot of new builds occurring within our body corporate industry. And as a consequence, I thought this was a great time to talk to body corporate managers and brand new committees about what happens at the first Annual General Meeting.

I actually call it the conflict of the first Annual General Meeting. And the reason why I call it a conflict is because on one side you have the developer who was the original owner. In the middle, you have your body corporate manager and then on the other side, you have the new committee who’s being introduced to the building. At the first Annual General Meeting, and prior to that, there might be an inaugural extraordinary general meeting, there are a number of matters that get ticked off.

Now, an original developer is aware of that. But we find when we attend buildings with the first twelve months of a body corporate committee, the committee actually doesn’t understand a few key points which need to occur, such as what is the date the strata plan was registered? That’s important because we want to know when time frames start to run from for the creation of this body corporate. Secondly, do we have an occupation certificate and what was the date of practical completion under the building contract? Thirdly, what documents were handed over by the original developer at that first Annual General Meeting? Did they hand over the building contract? Very important because we want to know that the building contract was handed over. Why? Because Section 36 of your Body Corporate Community Management Act says when the new body corporate is created and your original owner-developer starts moving out, the body corporate has the subrogated rights of your developer of the original owner. So pretend just like insurance.

The body corporate committee stands in the shoes of the developer and it has all the rights and responsibilities pursuant to that building contract. And that’s great from a body corporate perspective, it’s something in the Queensland legislation that’s very important for a body corporate because it gives the body corporate rights. It gives them rights to make sure that the work is done to a standard pursuant to the building contract. It identifies the retention money which may still exist within that first six to twelve months from the date of registration of the strata plan. If there is retention money, then the body corporate, it owns the common property and the assets. It needs to have a say on whether or not are there residential building defects that need to be repaired? 

And should we investigate those while the original developer still holds some retention monies to be paid to the builder which may be need to be spent on the building. Okay. 

A next document to look for is the construction drawings. The built. How is this building built?

Is everything included that we expect to be included? Exclusive use areas? Are the exclusive use plans done properly? And again, has every lot owner been allocated their exclusive use area? 

These are all issues which are important to look at at the first Annual General Meeting and the last issue I think is also extremely important and often overlooked. At the first Annual General Meeting I would like to see our body corporate managers and our original owners and bodies corporate putting forward a motion which says here is the body corporate asset registry.

So for example, if you’re moving into a new building that has a gymnasium and all the gym equipment was supplied by the original developer and paid for by the original developer, that becomes a body corporate asset and then is included on the asset registry.

At the first Annual General Meeting has the developer gifted those body corporate assets to the body corporate or has the original developer put a line item in the sinking fund that says no you the body corporate needs to raise money and you need to pay for those body corporate assets. They’re not a gift. If that is something that is clarified at the first Annual General Meeting and in my view it’s something that should be gifted to the Body Corporate Lawyers Gold Coast then often that takes away an argument that can occur later down the track. 

These are a number of the things which I would like our committees, particularly the new committees and our body corporate managers, to consider at the first Annual General Meeting of their body corporate. Again thank you for taking the time to listen.

As you know my name is Juliette Nairn. I’m a Partner with OMB Solicitors and at the moment with our property boom we’ve been attending a lot of first Annual General Meetings and these are some of the tips and tracts which have come up at these first Annual General Meetings.

To learn more about how our Body Corporate Lawyers Gold Coast team can help you, contact us today at OMB Solicitors.

Tom Robinson

Material Change of Use Applications in Bodies Corporate

By Body Corporate, Videos

In this video, OMB Solicitors Partner, Tom Robinson talks about the material change of use applications in bodies corporate.

 

Hi everyone, my name is Tom from OMB Solicitors and today I wanted to have a quick topic talk about material change of use applications in bodies corporate. 

I’ve been getting a few queries about these material chains of use applications which are coming obviously from owners within bodies corporates who want to lodge an application to the local council for a material change of use of their lot. So as you may expect, most commonly these are for short term living changes, but we’ve also seen some other schemes that are wanting to change or owners are wanting to change the use of their lot. And I think that might be partly factor to the current market situation and circumstances that we’ve had and some effects from COVID.

And with that request from those owners or the owners’ desire to put a material change of use application to council, if it’s in a body corporate, it actually needs approval or consent from the body corporate which can be given depending on the circumstances, either by a committee resolution or ultimately a general meeting resolution of all owners. 

Now the reason that there is a requirement for an owner to get that initial consent is because obviously material change abuse application for a lot in the body corporate may ultimately have an impact on current property. Now that’s not to say that it definitely will. What’s most interesting about this is the lot owners’ request usually to the body corporate for its consent is simply a consent by the body corporate to agree to the owner lodging its application with local council.

So that’s just the starting point for the owner to actually lodge its application to Council. So the first notification to cancel that the owner ever wants to consider a change of its use of the lot. Now bodies corporates quite commonly have been quite opposed to giving the consent to those material change of use applications, mostly because they might not be that supportive of what that lot has been changed to be useful, such as short term letting, which is always a topical topic on its own. But unfortunately, when bodies corporates have been withholding its consent to those requests by those owners to that application, adjudicators when it’s gone to the Commission’s office, have decided against the body corporate and overturned those decisions by either the committee or the owners at a general meeting. And the main reason for that is because the adjudicators in the adjudicators view the request for consent by the owner is simply that it’s just allowing the owner to actually lodge its application initially with Council.

So in actually determining the application to change the use of the lot and all of those factors that go into that, that is a matter within the jurisdiction of local council only and not one that the body corporate can have a say or restrict on. 

And that’s consistent obviously with our legislation and usually the bylaws which were by a bylaw cannot actually lawfully affect the dealing with a lot. So in other words if an owner does lodge a material change of use application and Council approves that application that’s the decision by Council and that’s in the jurisdiction of Council to make that decision not the body corporate. 

However, that doesn’t mean that if there are further requests and decisions to be made by the body corporate regarding the use of that lot that the owner is no longer bound by the legislation required to get the consent from the body corporate for those other changes and an example of that is let’s say the owner had to improve their lot and part of those improvements would impact common property so an improvement to common property, that would then obviously require another consent from the body corporate at a general meeting likely or if there was a buyer talking about renovations of lots then the owner would obviously have to comply with that by law and get the body corporate consent in that situation too.

So I guess in summary and to wrap up this topic is when those applications come across all those requests to bodies corporates to give its consent to those applications whilst everything needs to be examined on a case by case basis, they’re usually just a request to allow the owner to lodge its application and remembering that it’s ultimately a decision for local council as to whether or not that application is going to be approved usually with significant conditions or denied but that does not mean that the body corporate loses any right in the future to have a say as an objecting to the application once it’s launched or of course if there are any further requests that are required by the body corporate such as improvements that the body corporate will obviously have the ability to make a decision on. 

So a very interesting topic and one that seems to be coming about a lot but of course if there are any questions on that topic we’ll or any other body corporate matters, please do not hesitate to contact me.

Dakota Hallett

What Happens to the Pets in a Family Law Dispute

By Family Law, Videos

In this video, our Dakota Hallett discusses what happens to the pets in a Family Law Dispute.

 

Hello, my name is Dakota Hallett and I’m a family law solicitor here at OMB Solicitors

Today I’m just going to chat with you about what happens to the pets in a family law dispute. So more often than not, pets are considered an integral part of the family that bring a lot of joy and happiness, to everyone around. So it’s not unsurprising that pets are often considered something that both parties want to retain when you separate. 

The Family Law Act doesn’t specifically deal with pets or their living arrangements like they do with children, so pets are instead considered as property similar to that of a motor vehicle or other item of property, which is often something that’s difficult for people to grapple with.

The court can, however, determine the ownership of a pet and change the ownership of a pet on a final basis, which is often really helpful if there is a dispute regarding who gets to retain the pet.

For the interim period, if there is a dispute regarding the pet, normally what happens is whoever’s name the pet is registered in is the one who gets to retain the pet. So the things that the court will consider in deciding that issue on who gets to retain the pet on a final basis are things such as who paid for the pet originally, who was the pet’s primary caregiver, including who took the pet walks and bathed it and fed it, and other things that the court will consider as well are who is able or has the capacity to be able to maintain that pet’s needs moving forward, including who has a house that’s able to have a pet living there.

So if you’ve got any questions at all in relation to parenting, property or pets, please don’t hesitate to contact me at OMB Solicitors.

For more information regarding family law mediation and how our family lawyers Gold Coast team can help you, contact OMB Solicitors today.

Elisha Hodgson Gold Coast Lawyers

Our Top Tips for Effective Levy Recovery

By Body Corporate, Videos

In this video, Elisha Quigg, Associate with OMB Solicitors, delivers us some top tips in ensuring smooth and efficient levy recovery.

 

Hello, my name is Elisha, Solicitor at OMB Solicitors. Today I’m going to be talking to you about our three top tips in ensuring a smooth and efficient levy recovery. 

The first tip we have for you is keeping our records up to date by including all contact details for lot owners that are referred to levy recovery. It is imperative that when an owner is in default that we are able to quickly communicate with them to bring the debt to their knowledge and attention. Now that includes reviewing the format and see if there’s any other contact details on the file which will assist us with that recovery process. 

Now, the second point I’d like to raise is in relation to arrears. Now, if an owner is in arrears of more than 90 days, then this needs to be red-flagged straight away because the older the debt, the more difficult it is to recover. So what we need to be doing at this very point is looking at our age status reports to see what owners are currently in the 90 days arrears and starting to think about whether or not they need to be referred to levy recovery. 

Now, the third tip is engaging your legal advisors early to assist with a recovery action. Like I said, when the debt starts to escalate, it does become more difficult to recover and that’s especially the case in circumstances where interest will start applying on outstanding contributions come 1 May 2021. So it’s really important that with your buildings, you are completing your age debtor’s reports, you’re considering which owners are sort of starting to get to that 90 day arrest time frame and starting to discuss these matters with your legal advisers to see if you can quickly and efficiently recover those debts on behalf of the body’s corporate. 

Now, also, a final tip is in relation to communication when it’s referred to legal recovery. it is important that when an owner is referred to legal recovery or levy recovery that you cease all communication with that owner directly. So whether or not you’re a committee member or a body corporate manager, it does make it particularly difficult if a matter has been referred to levy recovery and there’s communication coming from a number of different key stakeholders such as the lawyers, the committee members, the body corporate managers, it does make it far quicker and easier to resolve debt when there is only one point of contact in that process. 

Now, as a final point in relation to our COVID relief legislation, as we know things are starting to slow down a little bit now and penalty interest will start up again on 1 May 2021.

So it’s really important that committees start thinking about their buildings and getting on top of those levy arrears to ensure that when that 1 May 2021 time frame comes around, there are not many owners that are in arrears that will suffer as a consequence of the penalty interest starting to accumulate again. 

Now, if you have any questions at all or if you would like us to review any of your age debtors reports for your buildings to see whether or not matters need to be referred, please don’t hesitate to send them through to us and we will review them at absolutely no charge. 

For your committee to ensure that we can get on top of those very quickly and efficiently and to ensure that you’re in safe hands, so feel free to give us a call and we’ll be happy to help. Thanks.

Tom Robinson

Five (5) Main Amendments in the New 2020 Body Corporate Regulation Modules for You to Know

By Body Corporate, Videos

In this video, OMB Solicitors Senior Associate, Tom Robinson discusses what you need to know about the new Body Corporate regulation modules.

Hi everyone. I’m Tom from OMB Solicitors and I work in our Body Corporate Lawyers Gold Coast team here.

Today I wanted to have a chat with you about our new body corporate regulation modules. And as you may be aware, these modules are a reform of our legislation regarding those regulation modules and that will commence from the 1 March this year. As a bit of background to those modules, it has been making in time for quite a long period, being almost eight years.

And what we’ve seen is recommendations being considered. There were originally 64 recommendations that was narrowed down to and we’ve seen a number of those recommendations now being implemented. So I thought today would be a good opportunity just before those regulation modules commence on the 1 March to look at some of the main changes that we’ve seen from this reform. 

A large part of that reform is a modernisation and I think that’s an important note because what we’re dealing with is a modernisation of our regulation modules where we are bringing the modules up to practices that are already applied throughout the industry. So as you may suspect, a large change to our regulation modules relates to electronic means.

So that is electronic voting, electronic meetings, attendance, electronically video conferencing, teleconferencing and the like. It also means the ability to hold ballots, whether they be open ballots or secret ballots via electronic means. Of course, there has to be certain software upgrades and updates there, but at least the legislation now contemplates the electronic update, let’s call it. 

Obviously, that was a big push because of what we went through in 2020 where Bodies Corporate were faced with the predicament of having to comply with the legislation with respect to holding of meetings and attending and having owners attend and vote at meetings when the legislation didn’t appropriately deal with those electronic access voting attendance issues. And that has probably been a very big push of why the modules have now been implemented at this time. They will be known as the 2020 regulation modules.

So what I thought I’d do now is talk about five of the main changes that we’re seeing other than, as we call it, the electronic update. So one of the more interesting update changes that we’ve now seen is the ability for lot owners to submit a motion to the committee for consideration at a committee meeting. 

Now that might seem like something that happens quite frequently, but the reality is under our current legislation, owners can only submit a motion to be considered at an EGM or AGM, but the legislation now will allow for lot owners to submit a motion to a committee meeting. 

What you may recall is committees deciding matters on behalf of owners such as pet applications or renovation applications. But that delegated authority that is given to the committee to be able to make those decisions is given through the bylaws, not necessarily the fact that a committee must consider someone’s motion that’s put to them. Well now that will change and lot owners will certainly be able to do that. There might not be a huge impact from that because there certainly are going to be restrictions around how that will operate and work, such as owners can only submit so many motions within twelve months. And obviously, if the motion is invalid or a restricted issue, then it doesn’t have to be considered.

There will obviously also be time frames on the committee that will be imposed as to how frequently and how quickly they must consider that motion. As it stands, if a committee receives a valid committee motion, it’s got six weeks to determine it. So that will be an interesting one to see how that plays out and whether there is a large impact on that other than realistically the requirement to have the motion determined within six weeks. 

Another aspect that will affect committees will be the ability for a voting member of a committee to be considered a debt a member. So what that means is if a committee member now owes a body corporate debt, such as they haven’t paid their levies, they will lose their entitlement to vote at a committee meeting.

So as you may be aware, currently that only applies at an EGM or AGM. Being an owner loses their entitlement to vote if they owe a body corporate debt. Now this will apply to committee meetings as well. I think that was something that probably was always intended, not necessarily regulated, and now that has been regulated in the new modules. 

Moving on to one of the other main amendments that we’re seeing and probably the main one that will cause a bit of grief, I think to start with, is the abolishment of motion by alternatives and it will now be considered and called a group of same issue motions.

So this will be a very topical matter, I think for bodies corporate is worth the change whereby under our current legislation, if there are two or more motions submitted that deal with the same issue, a body of corporate must put a motion, so one motion, and then list the alternatives. So there requires a bit of creative redrafting there of the motion itself and then the alternatives are listed. So the owners only get to vote once and choose one alternative. What will now occur is that won’t exist and it will be called group of same issue motions. So if a body corporate receives two or more of the motions of the same issue, all the motions will be put, but they will be designated and deemed a group of same issue motions whereby every owner can vote on every motion and you may get a result where multiple motions will actually deem to be have resolved.

But there will be a process to determine which is actually the resolved motion so that one will be a topical one I think that will cause a bit of confusion and a lot of change in terms of how we do some practices but one to be mindful of moving from the 1 March. 

Another good update that we’re seeing is the ability to change a quorum. So currently it’s 25% of voters at a general meeting gives you a quorum that is going to now change to between 25% and 10% if the border corporate resolves a special resolution. So there are a lot of schemes out there, specially the investor owned schemes that will struggle to get 25% of the number of voters to make a quorum at a general meeting. That can now be amended to not less than 10% and not more than 25% if you resolve a special resolution at a general meeting. 

So a good update, one that’s going to probably assist a lot of those investor owned schemes. The final one I thought I’d talk about today is closing an industry loophole regarding Powers of Attorney. So you may recall there was obviously a period there Where there was what we call proxy farming where owners would go out and farm and gather as many properties as they could so that they could vote with multiple votes, really and that got closed by the last and current modules Where there is a percentage limitation on how many owners can hold. So what the loophole that was found related to powers of attorney where an owner realistically could hold as many powers of attorney as they wanted and in some instances owners were holding ten to almost £100 of attorney for one owner which gave them a voting majority that has now changed and owners can only hold one.

Obviously there are exceptions to that such as if you have a power of attorney for a family member that won’t necessarily count towards your one power of attorney that you can hold and certainly no change to when developers hold powers of attorney under contracts of sale, usually at the original development stage. 

They’re the five main amendments that I thought I’d chat about today and probably some of the more interesting ones that we’ve seen from the regulation modules outside of, as we called it, the electronic update. 

If you’ve got any questions, of course, about any of those changes or any other changes to the new regulation modules, please do not hesitate to contact us here at OMB Solicitors.

Abbi Golightly

What is a Binding Child Support Agreement?

By Family Law, Videos

In this video, OMB Solicitors‘ Partner & Accredited Family Law Specialist, Abbi Golightly discusses what the Binding Child Support Agreement is.

 

Hi, I’m Abbi Golightly from OMB Solicitors.

Making appropriate arrangements for the financial support of your children after separation is an important consideration when resolving your family law matter. The child support agency run by the federal government is an option available to parents to manage the financial support for children. 

The child support agency undertakes a formula calculation of child support payable, taking into account the income of both parents and appropriate care percentages. The child support agency’s approach to the calculation of child support can cause difficulties, particularly with self-employed spouses and changing care arrangements for the children.

Often, when parties are seeking certainty in relation to their obligations to pay child support or what they may receive by way of child support, we advise them in relation to binding child support agreements. Much like binding financial agreements for the division of your assets, a binding child support agreement sets out clearly the obligations for the payment or receipt of child support.

A binding child support agreement can obligate a parent to pay a contribution towards school fees, medical expenses, extracurricular activities, or pay expenses, such as private health insurance expenses in relation to children’s pets and other expenses that ordinarily the child support agency would not take into account. 

In order to be binding, a binding child support agreement must be documented appropriately in accordance with the child support legislation and again, like a binding financial agreement, all parties must receive independent legal advice in relation to the effect of the agreement on their rights and entitlements before signing it. 

After the agreement is signed and all parties have received legal advice, the binding child support agreement is sent to the child support agency.

Instead of receiving regular assessments of your child support obligations calculated by the child support agency, they will issue assessments in accordance with your binding child support agreement. 

Much like a binding financial agreement, there are pros and cons in relation to entering into a binding child support agreement, and it’s important that you consider the advice of your family lawyers Gold Coast team before doing so.

Abbi Golightly

The Requirement to Participate in Mediation

By Family Law, Videos

In this video, OMB Solicitors‘ Partner and Family Law Accredited Specialist, Abbi Golightly discusses what is required in order to participate in Mediation also known as Family Dispute Resolution.

 

Hi, I’m Abbi Golightly from OMB Solicitors

Prior to bringing an application to the court for parenting orders, there is a requirement under the Family Law Act to participate in family law mediation, also known as family dispute resolution. There are, of course, exceptions to the requirement to participate in family dispute resolution, including circumstances of urgency, risk of harm, circumstances involving family violence, and abuse of either parent or the child. 

However, barring any of the exceptions to the requirements applying to your circumstances, it will be necessary for you to participate in family dispute resolution. 

Family dispute resolution providers are approved by the federal government to be appropriately qualified to undertake mediations between parents, and if an agreement is unable to be reached, they will issue you with a Section 60I Certificate, which is a reference to the Family Law Act requiring you to participate in mediation.

That certificate will say that you have attempted mediation and were unable to reach an agreement, or that you have been unable to participate in mediation because of the other parent refusing to participate, or that your circumstances are such that mediation is not appropriate. 

It is only after you’ve received a certificate or an exemption from the court that you can bring an application for parenting orders. The requirement to mediate is the federal government’s push to have parents reach an agreement privately in relation to the living arrangements for their children, rather than approaching the court without first doing everything they can to reach an agreement which statistically has the best chances of success for the parents and most importantly, for the children. 

At OMB Solicitors, we can assist you in relation to attending a family dispute resolution and advising you about the best options available to you in relation to private mediation, publicly funded mediation and what is the appropriate position to take when negotiating the living arrangements for your children.

If you want to learn more about family law mediation and how our family lawyers Gold Coast team can assist you, contact us today.

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