QLD: Q&A Can I Access Body Corporate Records?

Whenever we ask our body corporate manager (BCM) for a copy of a body corporate document, their response is ‘Go to the Commissioner’s Office’. As a committee member, I should have reasonable access to records free of charge within seven days.

The manager still refuses to provide access even when we have paid for documents. Instead, we have to pay a considerable amount and go through conciliation, then maybe adjudication, which can take a year. The BCM is not issued a penalty; hence, there’s no deterrent. What a great system.

Answer: If the committee is not doing their job, it is your job to ensure oversight of them.

I can hear your irritation, and I daresay if it were me in the same situation, I’d feel that way too.

That said, I think a few points of clarification are needed here:

Strata managers are not decision-makers. The committee is

Strata managers are not regulated or licensed in Qld

Accessing records is, in my experience, one of the most misunderstood (or misapplied) parts of Qld’s strata legislation

I can assure you the Commissioner’s Office does not enjoy handling applications of this nature. It is a waste of their time and precious resources. That said, adjudicators have no power to impose a penalty on either the manager or committee. Nor are there any body corporate police enforcing the legislation

If the manager in question is a Strata Community Association (Qld) member, you can – and probably should – lodge a complaint with that body about their alleged conduct.

Otherwise, I think your frustration here is best directed in two ways. Firstly, regulators. If managers were regulated and there were consequences for their non-compliance, they would be far less likely to do what you describe. A State Election is coming in a few months; perhaps it is time for you (and anyone else who feels similarly) to voice concerns to candidates about strata issues. Millions of people live and invest in strata, after all.

Secondly, turn your attention to your fellow owners and the committee. If the committee is not doing their job, it is your job to ensure oversight of them. You do that by nominating and being part of proactive change. Or you campaign – with the support of other owners – for the change you want. These actions are in your hands, no-one else’s, and it is a call for you to make as to how much time, energy and resources you want to devote to this cause to protect and enhance the value of your investment.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #683.

Question: As a committee member, can I supply an owner with a copy of the roll with all owner’s contact details? Can that owner then share the document with another owner?

Answer: The decision to supply any body corporate record is a committee decision, not an individual committee member decision.

The decision to supply a copy of the roll, or any body corporate record, is a committee decision, not an individual committee member decision.

If an owner wants a copy of the roll, they must go through the formal process of requesting it, and there really should be no reason for the committee to decline it.

If, as an owner, you already have a copy of the roll, there is nothing under strata legislation stopping you from providing a copy of that to another owner (or anyone really) at their request. I would urge you to consider the consequences of that first. Some owners get very sensitive about the idea of their contact details being handed out without their ‘permission’, so you need to consider if it is a good look for you to give those details – for free, no less – to someone else who has not gone through the formal process of obtaining it.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #676.

Question: Who retains the fees paid when an owner pays a fee to access body corporate records?

The QLD BCCM Act requires that the body corporate must do either or both of the following as requested by a person —

permit the person to inspect the body corporate’s records;

give the person a copy of a record kept by the body corporate.

The applicable fees are:

To inspect the records $19.35.

For a copy, the fee is $0.70 a page.

The person wanting to inspect or obtain a copy must write to the body corporate, ask for documents or an inspection, and pay the correct fee. The body corporate cannot charge any other costs, e.g. a charge for the body corporate manager’s time.

The BCCM Act does not appear to state whether a body corporate manager (BCM), to whom applications are usually made and fees paid, can retain the fee or whether the fee should be remitted to the body corporate. In the case of a large body corporate, payments for copies of documents and/or inspections could amount to thousands of dollars per annum.

Should these payments to the BCM be accounted for, retained by the BCM or remitted to the body corporate?

Answer: The records are the body corporate’s records, not the manager’s, so the legislated fees for searching and copying them would go to the body corporate.

Let’s look closely at those legislative provisions. The legislation refers to ‘the body corporate’ in the context of records access. It does not refer to an agent or other party. Indeed, the body corporate is expressly forbidden from contracting out.

In other words, while the body corporate manager plays an essential role in the affairs of a body corporate, the body corporate retains decision-making powers and control over its funds – including receipt of such funds. It is their money. In this case, the fee is payable to ‘the body corporate’. Put another way: the records are the body corporate’s records – not the manager’s records – so the legislated fees for searching and copying them would go to the body corporate.

Here, you may be thinking about expenses incurred by the body corporate manager in relation to actioning the records request. Those particular expenses are not regulated by strata legislation. They are subject to the terms of the contract between the body corporate manager and the body corporate. If, for example, the contract says the body corporate will charge the body corporate $500 per hour plus GST to do the necessary work to comply with a records request, that’s what the contract says. It is separate from the prescribed fees you have quoted.

While you don’t specifically refer to this issue, I’ll address it anyway as it is relevant: the individual requesting the records pays only those regulated fees prescribed by legislation. They do not pay the body corporate manager’s disbursements if they apply.

Reading between the lines, perhaps you are concerned about how much your body corporate pays in relation to records requests. Fair enough. That said, the fact remains that there is an express right for an ‘interested party’ to obtain records. Adjudicators take a pretty strong view on accessing records and if there are a lot of records requests. Perhaps the body corporate could consider whether their records are being transparently provided in the first place.

This is general information only and not legal advice.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #674.

Question: As an onsite manager, can I receive the owner roll with contact information such as email and phone number?

I am an onsite manager. I requested, via the strata manager, the owner roll. I was supplied a version without contact information and told the owner’s contact information could not be provided due to privacy issues. Is this true? I have previously received a roll of all owners, including contact information from a different strata manager.

Answer: The provision of the roll can be a touchy subject.

William Marquand, Tower Body Corporate:

As a caretaker, you may need to contact owners to complete your work. As such, you might advise the body corporate or manager that if you don’t have the owner.s contact details, you will only be able to contact them through the body corporate or by letter. This doesn’t seem like a very efficient way for you to do your job, so you would think the body corporate would provide you with the contact details you require.

Otherwise, owners and interested parties are entitled to access body corporate records. The complete roll should be available if you go through the formal process of accessing these records. See the link below for how to access information.

It’s worth noting that the provision of the roll can be a touchy subject. Of course, the body corporate needs owners’ telephone and email contacts to facilitate good communication across the scheme. However, many people don’t realise that when they provide this information, it becomes part of the public record for the scheme. When they find this out, they often feel their privacy has been violated somehow. This may not technically be true, but it is emotionally true, and that factor can be just as important as the technicalities. It’s not unusual then that there is a reluctance to part with the information even if it is a legal requirement. It’s another area where the body corporate legislation is out of step with modern living, but until there is a wider overhaul of the rules, it is one we are stuck with.

Queensland Government: Accessing your body corporate’s records

Todd Garsden, Mahoneys:

I agree with what Will has stated above. In Merrimac Heights [2018] QBCCMCmr 278 the adjudicator relevantly provided:

personal information can be used or disclosed if that use or disclosure is required or authorised by law. Section 205 of the Act [BCCMA] specifically requires the disclosure of body corporate records, so the disclosure of records that include personal information is authorised by law. Accordingly, as adjudicators have consistently held, there is no prohibition in the Privacy Act on the disclosure of personal information when it is disclosed pursuant to 205 of the Act.

After making a proper records request, the person requesting the records is entitled to the information. It should not be redacted for “privacy”.

Although there is no strict requirement for phone numbers and email addresses to be recorded, there is no prohibition in doing so. The adjudicator relevantly provided in Hope Harbour Marina [2016] QBCCMCmr 239 that:

“[w]hile the Act [BCCMA] and Standard Module specifically require certain records to be kept by bodies corporate, they do not specifically provide for the body corporate’s collection of owners’ email addresses and telephone numbers. Nor do they prohibit the collection of these details. In practice, many bodies corporate do collect these details to assist their communication with lot owners. The respondent acknowledged in its submission that it does possess the requested contact details.”

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the September 2023 edition of The QLD Strata Magazine.

Question: Are treasurers, secretaries, or strata managers required by law to maintain an asset register? If so, what are the requirements?

Answer: The obligation rests with the body corporate – not a specific committee member.

Section 226 of the standard module requires the body corporate to maintain an asset register for any assets of more than $1,000 in value.

The register needs to include the following details:

a brief description of the asset;

whether the asset was purchased or was a gift;

when the asset became a body corporate asset;

if the asset was purchased—
1. the cost of the asset; and
2. the name and address of the person from whom the asset was purchased;

if the asset was a gift—
1. its estimated value; and
2. the name and address of the donor.

The obligation rests with the body corporate – not a specific committee member. Ordinarily, this obligation would be contracted out to a body corporate manager – but the body corporate remains principally responsible.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #661.

Question: Can a principal body corporate executive committee determine a fee for access to body corporate records?

Can a principal body corporate executive committee determine a fee, by the decision of the committee at an executive committee meeting, for access to body corporate records? Integrated Resort Development Act 1987 (IRDA) section 154(1) refers to the “payment of such sum as the principal body corporate may fix by resolution but not exceeding the reasonable cost to the principal body corporate”. Does this mean that only the principal body corporate in a general meeting may determine the fee payable by a proprietor for access to certain records of the principal body corporate?

Answer: The determination of the fee would be a restricted matter and require a general meeting to be set.

Section 162 of IRDA provides that:

Subject to this Act, the decision of the executive committee on any matter, other than a restricted matter, shall be the decision of the principal body corporate.

Accordingly, the executive committee can make decisions on behalf of the body corporate as long as the decision is not a restricted matter.

A restricted matter is defined in the same section to include:

any matter which seeks to alter the rights, privileges or obligations of members of the principal body corporate

Determining the fee a member is obliged to pay for a records request would seemingly change a member’s obligations. Accordingly, the determination of the fee would be a restricted matter and require a general meeting to be set.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #659.

Question: If we change strata managers, how is the transfer of email correspondence carried out? Is the information handed over in hard copy?

We are thinking about changing strata managers. One issue we have discussed is the records transfer, given that most things are done via email these days.

Are the current managers required to hand over all relevant email correspondence received during the term of their appointment? Is this transferred in hard copy? Is the process difficult? How is the transfer usually managed?

Answer: There is no requirement for body corporate records to be kept or handed over in hard copy.

There is no requirement to keep body corporate records as hard copies or to hand them over in this format.

As you indicate, almost all records are digital these days. When a property changes hands, the transfer is largely digital as well.

I suppose that if you had a particularly malevolent body corporate company that was sour after losing a scheme, they could print out all the documents for the scheme and hand them over, but let’s not go putting ideas in people’s heads.

In reality, most body corporates respect one another when handing over documents. There is a general degree of professional respect and, perhaps too, some karmic understanding. What goes around comes around.

This is not to say that handovers are seamless. Information gets lost as it transfers from one manager to another. If the companies work with completely different record keeping systems, accessing the records is not always easy. In and of themselves, though, these issues probably aren’t sufficient for staying with a company you don’t like working with.

See the BCCM website for more info on record keeping: Queensland Government: Body corporate records.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the August 2023 edition of The QLD Strata Magazine.

Question: If the body corporate is required to keep correspondence, and most of that correspondence is in email form, what arrangements must a body corporate manager make for such ‘correspondence’ to be inspected?

BCCM Accommodation Module Section 220 (1)(h) requires the body corporate to keep records of ‘correspondence received by the body corporate, and correspondence sent by the body corporate’.

In the past, body corporate managers have made body corporate hard copy files available for inspection. Still, more often than not, records, such as emails, are not downloaded and available in hardcopy.

What arrangements must a body corporate manager make for such ‘correspondence’ to be inspected?

Answer: Anyone searching the books and records should be able to look through saved files to review all correspondence, with some exceptions for privileged records.

A body corporate has to keep records of correspondence to and from the body corporate.

There is no requirement for those records to be stored as hard copies, and these days, most correspondence arrives in and is stored as emails or documents saved as PDFs.

Different companies will use different storage systems, but they are all essentially a digital vault of records categorised under the various relevant headings.

Anyone doing a search of the books and records should be able to look through the saved files to review all correspondence, with some exceptions for privileged records.

The files are usually accessed by owners or designated searchers appointed by interested parties attending the body corporate offices to conduct a search. Most companies will have a specific area set aside in their offices for this. It is also increasingly possible to access records via an online link, although this isn’t a standard as yet.

If owners want hard copies of the records, they can usually print them out at the body corporate office. There is a fee per page for this service. Otherwise, you may be able to copy records and print them elsewhere.

Many management agencies still hold some hard copies of body corporates document, although these are being phased out. I don’t suppose many agencies are still creating new hard copies, but you never know.

The legislation regulates access to the books and records.

As per the BCCM website, you can see and/or get copies of a body corporate’s records if you are:

an owner of a lot in the scheme

a mortgagee of a lot

the buyer of a lot

someone who satisfies the body corporate of a proper interest in the records (e.g. a tenant who wants information about living in or using a lot)

the agent of someone on this list.

If you are entitled to see the records, you must:

give a written request to the body corporate

pay a prescribed fee.

The body corporate must let you see and/or give you copies of the records within seven days of getting your written request and fee.

Most of the time, accessing the records is a smooth process, and the change from hard to soft records is making it easier all the time. Although perhaps one downside of keeping digital records is that as body corporates generate huge amounts of correspondence and records the files are vast. Finding that one email you want isn’t always as easy as you hope it will be.

See the BCCM website for full details on the requirements around record keeping: Body corporate records

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #653.

Question: As an owner of a unit in one of the residential body corporates in my layered scheme, am I entitled to request and receive information from the principal body corporate?

I am a lot owner in a layered scheme in Queensland.

There are three residential body corporates for the lots and one principal body corporate (PBC) for the common property.

I have requested the following documents from the strata manager of the principal body corporate (PBC) and the chairperson of my residential body corporate, however, there has been no reply.

AGM minutes for the current financial year.

EGM minutes for the current financial year.

Body corp committee minutes for the current financial year.

Caretaker’s reports for the current financial year – if these aren’t included in the other minutes.

The current contract with the company that provides caretaking services.

Historically, they haven’t provided this information to the lot owners. The financial reports have only been provided after making an email request.

I am after AGM/EGM/Strata committee meeting minutes and the caretaking contract for the purposes of reviewing them to understand where my levies contributions go and what decisions are made regarding how they are used by the PBC.

As an owner of a unit in one of the residential body corporates, am I entitled to receive copies of this information from the principal body corporate, or are they permitted to withhold this information from me?

Answer: Regardless, as an owner in a subsidiary, you would still be classified as an interested person and can apply to access the principal body corporate’s records.

It should be straightforward to obtain standard documents like this and it is frustrating when you can’t.

If you are not getting any help from either your body corporate – which should be your first point of contact and hold most of the records listed – or the principal body corporate, you may need to make a formal access request for records.

To do this, you need to make a written request to the body corporate by way of a BCCM Form 12 and may need to pay a fee.

The body corporate must let you see and/or give you copies of the records within 7 days of getting your written request and fee.

You can also request that copies of documents that exist in the records be given to you. You must identify the documents you want. You may be required to pay a fee for the time it takes someone to search for these records. You could also hire an independent searcher to do a search for you.

The body corporate can restrict access to records if the records contain defamatory material or if they are considered confidential documents between a client and their legal representative. Hynes Legal has a good blog on this: 2 Reasons for a body corporate to deny access to records.

From the information provided, I can’t see anything in the request that would particularly identify the documents as restricted, but you never know.

It’s also worth thinking about why you are not getting the information. We don’t know about the size or set up of the schemes here, but if your individual body corporate doesn’t have a professional manager, it may just be that the records aren’t up to date or that the chair isn’t sure of how to give you the information. Maybe send them a friendly letter or offer to help. Suggest that a professional body corporate manager be appointed if necessary. If you have a professional manager, they should be able to provide you with a clear instructions on how to access the records or, more simply, send them to you.

For the PBC, they generally wouldn’t send information to owners in a subsidiary scheme but would send it to the body corporate. They might take the view that you should be engaging your body corporate to obtain the information needed, but as they haven’t replied, we don’t know. Regardless, as an owner in a subsidiary, you would still be classified as an interested person and can apply to access the principal body corporates records as per the above.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #643.

Question: Can the body corporate manager decide who can or should hold body corporate property?

Answer: Make sure that any request for records is authorised by a committee resolution.

Everyone should know that the records of a body corporate:

belong to the body corporate, even if they are held by the current or former body corporate manager; and

are to be delivered to a specified member of the committee within 14 days of a notice being served (section 235 of the Body Corporate and Community Management Act).

Accordingly, one body corporate was recently shocked when a body corporate manager refused to deliver the records, so an Adjudication was required.

Despite the clear requirements in the legislation, the body corporate manager argued that he was entitled to hold the records in the best interests of owners and to ensure they are not dealt with in a way that prejudices that body corporate.

The adjudicator relevantly stated:

“The status of any contract between the respondents and the body corporate is irrelevant the issue of who holds body corporate property. Body corporate records and assets belong to the body corporate, not its members or contractors. A body corporate (usually through its committee) is entitled to decide who will be in possession of its property at any time.

Even if a BCM believes it has a current and valid contract, I consider that it has no legal right to withhold body corporate property when it has been asked to return it. Adjudicators have consistently expressed that view.

…

[53]…I do not consider it is for a BCM to decide who can or should hold body corporate property… I do not consider it was acting in the body corporate’s best interests to simply refuse to comply with the committee’s requests for the body corporate’s property.”

Please make sure that any request for records is authorised by a committee resolution.

Peter Hunt Mathews Hunt Legal E: peter.hunt@mathewshuntlegal.com.au

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: I’ve repeatedly requested access to our financial records but received no response. Can our strata manager refuse my request?

Our strata manager maintains our body corporate’s financial records. I have twice requested our strata manager provide a list showing each accounting record, that is each item listed to indicate the nature of the record.

Whilst the Act makes clear each financial record which must be maintained, the wording in the act may not necessarily be the same as that used by our strata manager for our accounts. i.e. our payments register may be called something else.

I believe that this is a reasonable request for specific information from a proprietor e.g. expenditure items rather than requesting the complete general ledger.

Can the strata manager refuse the request?

Answer: It’s always reasonable to request access to information about your scheme – it is your information after all.

It’s always reasonable to request access to information about your scheme – it is your information after all. And most body corporate companies are happy to provide this. My guess is that the report you are requesting only takes a minute to download and email.

Here, though, you aren’t getting a response at all so it is worth considering why that might be and what you can do about it.

Firstly, it is possible that there is some miscommunication of some kind. Is there some reason your mails haven’t been received? Maybe the manager has sent a response, but it cycled into a junk inbox. In that case, it may be good to phone the office and ask.

Then, it’s possible that your manager/company is behind in their work and just hasn’t been able to respond. Managers and companies can struggle with the volume of requests on occasion and it can take a long time to turn things around when you start going under. If this is the case, your management company may not admit the problem to you, but you should be able to pick up on the vibes from that if you speak to the manager.

Lastly, you might want to think about whether there is a specific reason your request isn’t being responded to. Is there some kind of dispute going on? Has the manager been told not to respond to you or made an active decision not to respond? Perhaps the managers want to hide the information from you for some reason? We can only speculate, but there might be an active reason and if there is perhaps there is some form of dispute resolution that can be considered.

So what can you do? Have you checked the owner’s portal if you have one, as the information might be there? Perhaps you could reach out to a committee member who could assist. If you felt it necessary, you could arrange to do an inspection of the books and records. Managers aren’t obliged to respond to you, but they are obliged to provide you with access to the books and records via a search if you request that. If it is a question of bad service, you could write to the head of the company or start speaking to other owners about changing managers if necessary.

Work your way through the options and at some stage it should become apparent why you can’t get the communication required.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: Does a unit owner have the right to access contact details of all lot owners? If so, can an owner contact other lot owners either via email or phone to express concerns about the running of the Body Corporate?

Answer: Be prepared for either no response, or some potentially negative responses.

Yes, you can. As an owner, you are an interested person for the purposes of strata legislation which means you have a right to access body corporate records, such as the roll.

As for contacting the owners – well, that’s a slightly different story. Put yourself in their shoes for a moment: would you react well if you received an email from someone you don’t know (I assume you don’t know every owner) out of the blue? I’m not saying it’s a bad thing at all. I’m just saying, be prepared for either no response or some potentially negative responses.

Email addresses on the roll in Queensland are opt-in, so you may find that you won’t necessarily have all the email addresses anyway.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in the November 2022 edition of The QLD Strata Magazine.

Question: When I was previously on our committee I had an email contact list for the owners. As a lot owner, can I email the list if there are issues I feel should be discussed?

When I was on our committee I had an email contact list for the owners. I have since updated it with information received from our strata manager.

As I am no longer on the committee, would I be able to use this list to contact owners for permission to use their details as a personal contact list if there are body corporate or building issues I feel should be discussed?

Answer: Queensland’s body corporate legislation doesn’t make any mention of the purpose of or reason for using a copy of the roll.

This is an interesting question. Queensland’s body corporate legislation doesn’t make any mention of the purpose of or reason for using a copy of the roll (and email addresses on it). Nor is access to body corporate records dependent upon the purpose or reason for access.

Let me put it this way: there is nothing in body corporate legislation stopping you from doing what you propose. That said, you run the risk of people not being pleased that you have used their information this way. I know that people can be very sensitive about any perceived intrusion into their ‘privacy’. You may therefore be better off, in the interests of harmony, to go through the proper process of seeking access to the body corporate roll, as a body corporate record. The added benefit of that is that your list of addresses may have changed since you last obtained it, so a formal records request would hopefully get you the most current version.

I’m going to take a small logic leap here and assume that you are relatively certain there might be ‘issues’ that will need to be discussed in future. Your strategy of contacting owners is therefore a good one. Just remember that while discussion is great, decisions are what ultimately need to be made in a body corporate and for that purpose, your right as owner is to submit motions to both committee and general meetings, as appropriate, to get actions on what you see as ‘issues’.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #539.

Question: A few committee members from one precinct in a layered scheme would like to view security logs for our building. As the Security Contract is with the Principle Body Corporate, we’ve been denied access. Is this right?

I live in a complex with a Layered Scheme. We have Precincts 1, 2 and 3. I am the Treasurer for Precinct 3. We have a Principle Body Corporate.

Of an evening, a Security Patrol logs incidents and sends a daily report to the Principle Body Corporate’s Body Corporate Manager, who then forwards it to the respective Chairs of each Body Corporate. The Security Contract is with the Principle Body Corporate.

A few of our Committee Members would like to view the log. We have been informed that as the Principle Body Corporate pays the Security Contractor, P3 Body Corporate Members have no right to view the document. They cite confidentiality reasons.

Is this correct?

Answer: Individual owners in the Subsidiary Bodies Corporate are not members of the Principal Body Corporate so you are not automatically entitled to access.

What you’re referring to here is, as you say, a layered scheme. In a layered scheme, you have the Principal Body Corporate (PBC) and then a series of Subsidiary Bodies Corporate (SBC).

In your run-of-the-mill body corporate, each owner is a member of the body corporate. Using that as an analogy, in layered schemes, each SBC is a member of the PBC. In other words, that means that individual owners in the SBC are not members of the PBC. Each SBC has specified representation on the PBC.

So, then, when it comes to something like access to records, you are not automatically entitled to access the security log as a committee member of the SBC. Body corporate legislation frames access to records in terms of whether someone is an ‘interested person’ as defined under legislation and so it is possible you could apply to the PBC in that context, arguing that you have what is referred to as a ‘proper interest’.

That said, the claim that the security log can’t be provided for ‘privacy’ reasons is not correct. Body corporate records are generally not subject to privacy regulations.

My question to you: noting what I say above about a proper interest, is there a particular reason you want to see the security log? For example, is there an incident of interest to you? Or is it that you want to see what the security contractor is doing? I ask you this because your motivations for wanting to access the log might mean there some alternate approaches you can take, rather than simply seeking the record.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

This post appears in Strata News #535.

Question: Our CCTV policy states that request for access to footage must be received within 7 days, otherwise we override the footage. Is this compliant?

Our current CCTV system has an overriding cycle of seven days. Our published and available policy states residents and guests need to ask for footage within seven days, after which a copy will be made for their viewing indefinitely and kept on record.

Does this make us compliant with BC record legislation? Or do we have to start archiving weeks of essentially nothing?

Answer: Seven days is not long enough.

Chris Irons, Strata Solve:

This comes back to the purpose of ‘why’ again, and if you instal CCTV, come back to the point I made earlier, you’ve got to expect that at some point, access to it will become an issue.

So from the body corporate perspective, if you’ve got the CCTV there and somebody wants it, they want it for a reason. Writing over means that will not be available. The question ‘Are you being compliant that way?’, well the legislation in Queensland has not specified something about footage, it certainly has specified the length of time of record that needs to be kept, hasn’t it Frank?

Frank Higginson, Hynes Legal:

I think it’s six years, isn’t it?

Chris Irons, Strata Solve:

Yes. Six or seven?

Frank Higginson, Hynes Legal:

Yes. I’m just trying to look up the legislation now. That is a really interesting question, that one.

I suppose this then is almost coming back to what’s acting reasonably as well. But that’s a really interesting question.

I would say, gut feel, that seven days is not long enough. That would be my immediate take on it. Particularly with the technology that’s available today, in terms of keeping stuff in the cloud etc. I think you’ve probably got the ability to get to 30 or 60 days without much difficulty, and probably without much corresponding cost to start with. Seven days might only just be enough for you to realise that something’s actually happened and you need to request that footage. So you don’t automatically know about something that’s gone wrong to you that happened yesterday. You might find out in six weeks for whatever reason.

Keeping the footage for longer than seven days, I think is not unreasonable. But I think keeping it for seven years. I mean, I don’t know. That’s a really, really interesting question in terms of the statutory obligation versus what’s acting reasonably. Chris, you gave the example before about someone asking for $10,000 worth of information. That’s a problem for Mr or Mrs Requester, to figure that out and fund it. If it’s gonna cost the body corporate 10s of 1000s of dollars to keep seven years worth of footage, then I don’t think that’s necessarily reasonable, but more than seven days is not unreasonable.

Chris Irons, Strata Solve:

What if it’s the police who want that footage in more than seven days time and they’re investigating a serious crime, and it just so happens that your footage is going to be central to that? Are you going to feel comfortable saying ‘I’m sorry, we overrode it after seven days’? I’m not sure that you would feel comfortable.

Frank Higginson, Hynes Legal:

I’ve just looked up the legislation in relation to records. Documents may be disposed of (documents – we don’t have digital documents yet), the following documents may be disposed of two years after their creation:

correspondence of no significance or continuing interest.

I’d respectfully submit that certainly CCTV footage 2 years later that hasn’t been called on definitely falls within that. So, it’s no more than two years. But whether you have to keep it for two years is then the next question, but I don’t think it’s seven.

Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: A problematic owner persistently mails the body corporate manager with questions and requests for information. How do we deal with this?

We have a problematic owner who persistently mails the body corporate manager with questions and requests for information. No answer supplied is ever sufficient and every response generates more questions and emails.

What is the requirement of the body corporate manager/the body corporate to respond to emails and requests for records?

Can the body corporate manager charge for the provision of these? Who should the charges be billed to? The applicant or the body corporate?

Answer: The body corporate manager is not the decision-maker on records requests: the committee is.

The first thing you do is not call them a “problematic owner”. It’s a label and does nothing to advance the situation. You may even make it worse by you (and anyone else involved with the scheme) hanging on to that descriptor, even when the owner has a genuine concern.

With that in mind, I’m going to answer your queries in two parts. First, some factual responses to your specific queries and then, a more laterally-minded response.

If the owner is requesting body corporate records, makes that request in the correct form (in writing, with prescribed fee), then the legislation – and adjudicators’ orders – make plain that the body corporate must hand over those records. It matters not how many other requests the owner has made and it makes no difference for what purpose the owner wants the record: they’re entitled to it. An exception might be if legal privilege applies.

The body corporate manager is not the decision-maker on records requests: the committee is.

You can only charge the owner the fees prescribed by regulation, which provides for fees for inspection and copies per page. You are not able to charge the owner beyond that and neither can the committee (there may be some exceptions in relation to downloading records to a hard drive). You cannot, for example, bill the owner for your time in gathering the records. Depending on the terms of your agreement with the body corporate, you may be able to bill the body corporate for your time – just not the requesting owner individually.

Now, the lateral response:

Have you or the committee ever paused to ask yourselves why the owner is acting this way? Is there a medical or other issue at play contributing to the behaviour? Or, have you stopped to consider that perhaps the reason why the owner keeps asking for records is because they think they are not being properly informed about what is going on? I guess what I’m getting at is, do you think there might be a cause to this behaviour which is causing you and the committee grief? And if so, can you think about addressing that, rather than looking at things such as what you can charge and do you have to give the information.

Some further questions to ask yourself: have you or the committee ever attempted a reasoned discussion with the owner to get to the bottom of their concerns (or thought about getting someone to help you have that conversation)? Have you or the committee ever stopped to tally the number of person hours, and associated cost, which has been expended in dealing with this situation? Have you stopped to consider how many other clients you are not servicing because you are spending a lot of time dealing with this person? Is the committee actually getting to all of its other responsibilities, or is all their time being spent dealing with this one owner? I suspect once you do come up with these costs, even if only ballpark, you’ll find the total is considerable, verging on astronomical. So maybe, it’s time to approach it from a different angle and actually try to get to the bottom of things to save everyone a lot of time, money and toil.

I acknowledge there is a lot here to consider. Maybe you will find it confronting to hear me say what I’m saying. Fair enough. It’s entirely possible I don’t have all the answers. What I do know for sure is that I’ve seen this particular scenario many times in many schemes. In every case, when things were left unaddressed and the core issues are not dealt with, the result is a stressed-out committee, a frustrated manager, an owner who will only persist and a scheme which suffers detriment and disharmony.

I invite you and the committee to give some time to thinking about the questions I’ve posed. Perhaps you might see some ways forward.

Chris Irons Strata Solve E: This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: Are lot owners entitled to receive a copy of our body corporate insurance for free? Our Strata manager wants to charge us a $30.50.

Are lot owners entitled to receive a copy of our body corporate insurance for free? We feel that since this is something we all paid for, we should be able to access it.

Our Strata manager wants to charge us a $30.50 fee for a copy, even though our insurance company stated that we are entitled to access?

Answer: Ultimately the obligation to provide the information upon receipt of a valid request is on the body corporate, via the committee – but the body corporate usually contracts the performance of this obligation to the body corporate manager for a fee.

William Marquand, Tower Body Corporate:

Fees for the provision of information held by body corporate managers and their customers are determined by your agency agreement with the body corporate managers.

Depending on how the reimbursement part of that agreement is structured, a fee may be charged. If you are unhappy with these fees, or don’t find them reasonable, then you would have to look at appoint a new managing agency offering a different fee structure.

Otherwise, all owners are entitled to do a search of the books and records. If you are a committee member there is no cost for this. For regular owners there is a prescribed cost of $18.25 plus $0.65 per page for copies. The insurance documents should be part of the records.

For insurance records, if you want to avoid a fee, you can contact the insurer direct and they may provide this. However, the insurer doesn’t control the relationship between the body corporate manager and customer so they can’t say that the body corporate manager should provide the documentation without cost – only provide it free themselves if asked.

It’s worth considering why a body corporate might apply a fee in this matter. Each agency operates separately and there are a number of different models of body corporate management so there is no fixed position for how the industry operates. Generally, most contracts are structured on the basis of providing a set range of agreed services for a set base fee. If the body corporate manager is asked to do work outside of those agreed services, a cost is usually applied to compensate for the time taken to complete the task requested.

In the case of my company, Tower Body Corporate, we include the provision of standard documents, including insurance ones, within our agreed services. So, if a customer asked for an insurance document it would be mailed back at no cost. The document is also available to owners via our online portal for access any time. We think that is a valuable service to provide our customers but, in order to be able to provide that service, Tower’s base fees have to be set at a level that allows us to have a staff and infrastructure to carry out the work.

A different body corporate company could take a different approach. They could have lower base fees, but less inclusions. Your upfront cost could be low, but you would receive less service and less access in return for this. If you want more service, costs are applied. You may have to pay for access to your information.

Is one system better than the other? That’s a question of individual preference. Some people may be happy to pay extra for quality service and some people may want the very basics and nothing more. What’s important is that owners know and understand the agreement they have with their body corporate agency so that they know what to expect when signing an agreement. Ideally, the contract you sign should clearly lay out to you all costs and inclusions. If you are not sure, then you should ask.

If the body corporate manager can’t explain their costs in a way that seems justified to you, that may be a red flag. In particular, owners need to be conscious of the idea that if a contract has a lot of inclusions, the body corporate agency has to make its money somewhere so what can seem a good deal on the surface isn’t always in practice. This doesn’t mean that you can expect body corporate managers to work for free – none of them are not for profits – but you are entitled to shop around to find one that has a cost to service ratio that fits your scheme.

Todd Garsden, Mahoneys:

All owners are entitled to access and be provided with body corporate records.

There are prescribed fees that the body corporate can (but does not need to) impose depending on whether the owner wants to inspect the records ($17.95) of be given copies of a specific record ($0.65). The body corporate is not entitled to charge the owner more than this amount (but the body corporate manager may be able to charge the body corporate a separate fee through their administration agreement that cannot be passed on to the owner).

Ultimately the obligation to provide the information upon receipt of a valid request is on the body corporate, via the committee – but the body corporate usually contracts the performance of this obligation to the body corporate manager for a fee.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: As a newly appointed committee member, can I include other non committee lot owners in my correspondence with the committee?

I am a recently appointed committee member who has included other residents on email questions and discussions to the committee. I have been told to desists involving other residents in my correspondence.

Am I within my rights to include non-committee members in correspondence to the committee.

Answer: Committee members need to be careful in regard to how and what information they distribute in their elected capacity.

Firstly congratulations on taking an interest in your body corporate by nominating for a position on the Committee. I would be interested to know your reasons for copying in non-Committee members into committee communications. However, as I can only answer on the information provided I would say that Committee members need to be careful in regard to how and what information they distribute in their elected capacity.

There is a Code of Conduct for Voting Members of the Committee, that states, among other things:

A Committee member must not unfairly or unreasonably disclose information held by the body corporate, including information about an owner of a lot, unless authorised or required by law to do so.

A committee voting member must act in the best interest of the body corporate in performing the member’s duties as a committee voting member.

The Body Corporate and Community Management Act and associated Regulations, that apply to each scheme, prescribe how owners are able to obtain copies of body corporate records. Correspondence between Committee members, about body corporate matters, are a record of the body corporate and should be filed as such. This makes them available to owners to view upon payment of the prescribed fee.

When a Committee is elected, it is done so to get on with the job of managing the Common Property and attending to the day to day administration of the body corporate, this is done on behalf of the other owners. While owners are entitled to attend Committee Meetings, they are there as observers only and cannot address the meeting unless invited to do so by the Chairperson. So interested owners are able to observe the Committee’s processes at meetings.

Coping owners into Committee communications may not be in the best interest of the Body Corporate. As a member of the Committee, there is no reason why you cannot, as an individual, seek the input of owners on certain matters. However emails between members of the Committee would be best kept as that, between the Committee.

While your intentions are more than likely for the best, you should remember that as an elected member of the Committee you must work fairly and reasonably with your fellow Committee members.

The Committee may want to set a Communication Protocol that all Committee members are clear on and adhered to. I hope this information is of assistance.

Karen Thompson Vision Strata E: contact@visionstrata.com.au P: 07 5630 6546

This post appears in the December 2021 edition of The QLD Strata Magazine.

Question: We were asked to vote on a 5-year extension but a copy of the contract was not provided. I feel we were asked to vote on something that we did not have full information on.

We live in a standard format plan and have a contractor who is responsible for taking care of gardens and common property facilities.

Should the contract be available for all owners to view on the strata manager’s portal where their contract is available for all along with other reports such as AGM, Financial reports etc.

Can an owner request a copy of the agreement from the strata manager? At the previous AGM, we were asked to vote on a 5-year extension to the original contract but a copy of the contract was not provided for all owners to view. We have many new owners in the complex who did not live in the complex when the contract came into effect. In other words, we were asked to vote on something that we did not have full information on.

Answer: There’s no legislative requirement for the original agreement to be attached and circulated with the general meeting agenda.

There are a few different components in this question, and I’ll answer all of these.

I’m not entirely privy to what documents are readily available on Strata Managers’ portals, but what I can say is that your caretaking and letting agreement, any subsequent deeds of variation or assignment, are body corporate records and should be accessible by an interested party, whether that be an owner or likewise. If you’re not a committee member, then you need to make your application to your strata manager and your committee. You’ll need to pay your prescribed fee. You can either obtain a copy by post, email etc, or you can go in there and inspect as well. Most certainly the original agreement should be accessible by interested parties and do form part of body corporate records.

The second question in relation to the deed of variation and whether the original agreement should also be attached to that. I briefly commented on this in the webinar. Unfortunately, there’s no legislative requirement for the original agreement to be attached and circulated with the general meeting agenda. That’s why the importance of the BCCM form 20 comes into play because it acts or is meant to act as a summary of the nature of the amendment being sought and it’s meant to be able to give owners a snapshot, a one-page idea about ‘Okay, this is what is being requested. Do I agree with this or don’t I agree?’.

I appreciate the frustration when you get a three-page deed. Owners just think ‘Okay, that should be fine’. Again, it comes down to you as a committee or your committee members, making sure that owners are educated about what is being agreed to.

My opinion with any type of deed that is presented is that a committee should be getting legal advice. Even if you have a harmonious amicable relationship with the caretaker where you want to give them the five years because they’re doing a fantastic job, so you want to retain them. Even if that is the case, you need to get some advice about the legalities of the deed that’s being presented. Are you asking to acknowledge or ratify previous options that you, as a committee member that was just elected a month ago, has no idea whether they were ratified or whether they were exercised correctly? Getting legal advice doesn’t mean it has to be a dispute. Getting legal advice is just making sure the body corporates interests are protected in the deed as well.

Jessica Cannon Cannon + Co Law E: jessicacannon@cannonlaw.com.au P: 07 5554 8560

This post appears in Strata News #523.

Question: Should correspondence between the secretary and the chair directly NOT via the body corporate manager be available for inspection by an interested person?

Is correspondence between the body corporate manager and the committee considered as correspondence sent and received by the BC? This correspondence includes instructions by the chair giving to the body corporate manager. Should this be available for inspection by an interested person?

There is correspondence between the secretary and the chair directly NOT via the body corporate manager. Is this correspondence accessible for inspection by an interested person? How would we identify this correspondence is occurring?

Answer: Owners are entitled to speak to each other outside of the formal body corporate context.

Correspondence received via the BCMs office should be filed as part of the body corporate records and be available to someone doing a search of those records. Depending on the issue, some correspondence may be considered legally privileged and filed with limited access.

No one can control private email correspondence and owners are entitled to speak to each other outside of the formal body corporate context. However, formal decisions could not be made in that informal context.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #521.

Question: Should all lot owners have to subsidise fees for sending mail and paper copies to owners who don’t use email?

Is there is any advice to our Body Corporate regarding 120 lot owners who are on email, subsidising the additional Body Corporate mailing costs of the remaining 20 lot owners who are not on email?

Our Strata Manager has just charged $980 to print and mail out a 100pp document to the 20 lot owners who don’t use email.

There was a much lesser cost to email this same 100pp document as PDF to the other 120 lot owners.

Answer: Talk to your body corporate company and see if they could offer an incentive to lot owners to change.

Good point, but the only requirement is that owners must be contacted at a legal address. This can be an email or postal address, but if people request to be contacted by mail that is where the correspondence has to go.

Still, you may want to make this issue clear to those owners who still use postal addresses. The likelihood is that most of them will have never considered the implication or never taken their time to update to their email address.

Perhaps you could talk to your body corporate company – they might offer a discount on disbursement fees if enough owners are on email and this could be an incentive to change.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #514.

Question: Is a committee member permitted to share financials with another lot owner as published to the committee by the strata manager?

Is a committee member permitted to share financials with another lot owner as published to the committee by the strata manager – eg. the quarterly income and expenditure statement for admin and sinking accounts and the general ledger.

Are they regarded as private documents, available only to the committee?

Answer: In some circumstances, it may not be in the Body Corporate’s interests for the information to be shared

Under section 231 of the Standard Module, a body corporate is obliged to keep certain records, including accounting records and statements of account for each financial year. Likewise ‘associated committee meeting material’ must be retained. That associated material includes notice of meetings, including agendas and attachments (such as financial statements).

Under section 233 of the Standard Module, a lot owner can access the records of the body corporate by completing and lodging the required BCCM Form 12, with the Body Corporate (where the body corporate is managed, care of the body corporate manager) and paying the required fee. Access is via inspection or delivery of copies.

There is no (direct) injunction upon a member of the committee providing body corporate records to a lot owner, but committee members should ensure that in doing so they do not breach their obligations under the Code of Conduct in Schedule 1A to the Act. In some circumstances it may not be in the Body Corporate’s interests for the information to be shared, for example until after the relevant committee meeting is conducted.

Committee members are not permitted to disclose information held by the body corporate, including information about an owner of a lot, where that would be unfair or unreasonable (unless required by law to make the disclosure).

Michael Kleinschmidt Bugden Allen Graham Lawyers E: michael.kleinschmidt@bagl.com.au P: 07 5406 1280

This post appears in the September 2021 edition of The QLD Strata Magazine.

Question: I feel our audited financial reports do not disclose clearly to unit owners all relevant financial information. Might the body corporate be requested to reproduce the statements in a more appropriate format?

I am a residential lot owner in a large body corporate complex in Brisbane. 63 floors are up-market residential units and 12 are operated by an international hotel chain.

At the recent AGM, audited financial reports (statements) of the body corporate for the prescribed period were presented and accepted as appropriate in the circumstances. Those same reports, however, did not disclose clearly to unit owners all relevant financial information of concern. They seemed to be rather misleading or vague in some important material respects and failed to communicate properly and in detail all of the information that might be considered reasonable in the circumstances. It appears those statements are prepared automatically using an ‘industry specific’ body corporate management whiz-bang computer system. This, therefore, may be a software deficiency – user friendly but poor on presentation.

I understand the notion of ‘special reports’ and am familiar with relevant legislature and the current views of the Australian domestic accounting bodies as to their use and purpose. International accounting standards, however, emphasise more concepts of full disclosure and proper communication. In the circumstances, might the body corporate be requested to reproduce the statements in a more appropriate format?

Answer: Is there any reason for the body corporate to change its agreed practices to meet the wishes of the one owner?

I think this question is really about the extent to which the body corporate needs to adapt to the needs of an individual owner.

From the information provided, it seems the accounts have been presented in a format that is acceptable to an independent auditor, who is presumably familiar with strata accounts, and to the body corporate, who have approved them at a general meeting. One owner, who seems knowledgeable about different types of accounting, would like a different standard of reporting to be used.

Is there any reason for the body corporate to change its agreed practices to meet the wishes of the one owner? Unless the owner can demonstrate that the accounts are actively wrong it’s hard to think of why this should. Body Corporates are run by majorities and the majority has indicated they are satisfied. Individual owners have to accept that they are part of a collective – you don’t always get what you want when you are part of a bigger system.

For the owner, this doesn’t mean that their opinion is invalid or that there are no further avenues for discussion. If you have reasonable questions about the accounts then the Committee and body corporate manager will usually be happy to discuss them. Then, motions can be presented to committee and general meetings. You can request the changes you want and see if other people will agree with you. In this case, I suspect the changes may be difficult to achieve as the strata company can’t just change its accounting system and owners may not want any additional costs associated with different reporting and recording standards, but it never hurts to ask. The important thing is to understand that owners need to reach collective decisions and while anyone can propose an idea, others have equal rights to accept and reject that.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in the July 2021 edition of The QLD Strata Magazine.

Question: Can I bring along a friend or fellow lot owners to help me inspect body corporate records? Is there a time limit?

I propose to inspect certain body corporate records and pay the prescribed inspection fee. The body corporate records are voluminous and I expect that inspection will take more than one day.

Is there anything preventing me from having a friend or fellow owners assist me?

Other than conducting the inspection during business hours, is there any limit on the length of time which could be imposed to conduct the inspection?

Answer: Your right to inspect records is based upon you being what is called an ‘interested person’.

Your right to inspect records is based upon you being what is called an ‘interested person’. Refer to section 205 of the BCCM Act for further details. In short, an interested person can be a lot owner, mortgagee, the buyer of a lot and it can also be another person who satisfies the body corporate of a proper interest in the information sought (which might usually capture a tenant, for example), or the agent of any of these.

A friend of yours who isn’t an owner may struggle to meet the above definition and I think you’d be hard pressed to argue how someone who has nothing to do with your body corporate has any proper interest. That said, a fellow owner would and feasibly you could bring them to assist you. You’d want to be sure you notified the body corporate of this, as a courtesy if nothing else. In the instance where you’d want to bring someone who wasn’t an interested person, you can always ask, but don’t be surprised if you get a refusal.

There is no time limit on inspection.

Let me ask you: are you sure there is nothing you can do beforehand to narrow down the focus of your inspection? That will save you time and also ultimately save you some money. If you are proposing to inspect at the body corporate manager’s offices, then be aware the body corporate manager may have as part of their agreement certain disbursements for which the body corporate would be liable for the time the body corporate management firm spends attending to your inspection. You’d ultimately be meeting some of those costs through your levies.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in the June 2021 edition of The QLD Strata Magazine.

Question: Can a lot owner get full copies of the body corporate roll. Am I able to access a tenant’s details or are some records restricted from lot owners?

Answer: If you are an ‘interested person’ – and a lot owner is an ‘interested person’ – then yes, you are entitled to access the roll.

If you are an ‘interested person’ – and a lot owner is an ‘interested person’ – then yes, you are entitled to access the roll. Of course, if the roll has not been updated with correct details, then you can’t access something which does not actually exist.

If there is a tenant with a lease of six-months or more then that information should be recorded on the roll and if the body corporate is aware that the roll is lacking this information then ideally it should be communicating with the owner or the real estate agent, if there is one, to get those details so that the roll is up to date. A roll serves no useful purpose if it is not current.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #478.

Question: What records/registers must the secretary or body corporate manager bring to the AGM?

Apart from the owner roll, voting papers, POAs and proxies, what other records/registers must the secretary or body corporate manager bring to the AGM?

May owners inspect/scrutinise these documents IMMEDIATELY before the AGM and if so, must an inspection fee be paid?

Answer: Section 92 of the Standard Module outlines which documents must be taken along.

Section 92 of the Standard Module provides as follows:

The secretary must have available for inspection by voters at the general meeting—

the body corporate’s roll; and

a list of the persons who have the right to vote at the meeting; and

all proxy forms and voting papers.

There’s no fee prescribed for inspection under this section.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #462.

Question: If requested, should the body corporate provide a lot owner with access to communications, especially emails, between committee members?

Experience suggests that records of communications (especially emails etc) between committee members and legal representatives are not regularly maintained by the body corporate.

Solicitors must however maintain such records along with, for example, court documents (including Statements of Claim, affidavits) and contemporaneous notes of conversations.

Records maintained by solicitors are ordinarily considered ‘client records/documents’ and upon request must be released to the client so long as they are not subject to a lien.

Save where those records pertain to a dispute between the body corporate and the lot owner or contain defamatory information, should the body corporate ensure that upon request by an owner (for example in relation to a court proceeding) be provided to an owner requesting access to such records?

Answer: Lot owners have a right to obtain body corporate records upon payment of the prescribed fee. However, the body corporate has the right to claim privilege over certain legal documents.

Lot owners have a right to obtain body corporate records upon payment of the prescribed fee. However, the body corporate has the right to claim privilege over certain legal documents. Whether privilege applies depends on the circumstances – for example, who is asking for the record and what the record relates to.

This was well explained in One The Esplanade [2017] QBCCMCmr 326 where the adjudicator relevantly provided:

“The common law doctrine of legal professional privilege entitles the client of a lawyer to withhold access to documents which fall within the scope of confidential lawyer-client communications. Central to the doctrine of legal professional privilege is the concept that communications or documents made for the ‘dominant purpose’ of obtaining or giving legal advice, and/or conducting actual or contemplated litigation, are protected.

Legal professional privilege is an important common law immunity that can only be removed by clear and unambiguous words. The Act does not explicitly remove this immunity so a body corporate has the same right to privilege as any other legal client. Therefore the body corporate does not need to disclose records that attract legal professional privilege. That said however, the doctrine has limited application where access to documents held by the body corporate, is sought by a member of the body corporate.

In the case of The Owners — Strata Plan No 74602 v Eastmark Holdings Pty Ltd [2013] NSWCA 221, the NSW Court of Appeal considered an equivalent provision of the New South Wales legislation. The Court affirmed that the section does not revoke a body corporate’s right to claim legal professional privilege. However a lot owner is a member of the body corporate and unless the lot owner is an adversary, that lot owner will share a common interest with the body corporate. Where a lot owner is an adversary, i.e. is an opponent in legal proceedings, or is likely to become an opponent in legal proceedings, a body corporate is entitled to withhold access to documents from the lot owner on the basis of legal professional privilege. Where legal advice is obtained in relation to a third party, the interests of the body corporate and lot owners will generally align and the body corporate is not entitled to claim legal professional privilege in respect of communications with its lawyers.”

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in the March 2021 edition of The QLD Strata Magazine.

Question: Our committee has a “committee email address” for all owners to contact the committee. Are these emails Body Corporate records and should owners be able to access them?

Our committee has set up a “committee email address” separate from our Strata manager’s and advised all owners that this is the address for owners to contact the committee. Our Strata management cannot or do not supply access for viewing any of this correspondence. Are these emails BC records and should owners be able to access them?

Answer: The committee may have legitimate reasons for channelling correspondence in this way.

A body corporate must keep the roll, registers and records and documents given to or created by the body corporate. Emails sent to an email address listed as being for body corporate matters would seem to meet those conditions.

Records must be kept by the secretary – they do not have to be kept by the body corporate manager although most agreements delegate these duties to the manager. More pertinently you may want to ask why the inbox has been created and what the goal of it is. The committee may have legitimate reasons for channelling correspondence in this way and would hopefully be able to explain that to owners.

William Marquand Tower Body Corporate E: willmarquand@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #456.

Question: Is any member of the committee able to access the strata information to view the levy amounts paid by each lot owner?

Answer: Levy amounts are part of the body corporate records. Therefore a committee member is able to obtain a copy of or inspect those records. It’s probably worth noting at this juncture that the reverse applies too: an owner can inspect the levy amounts of any committee member.

Chris Irons Hynes Legal E: chris.irons@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #451.

Question: As owner residents, we are in the minority in our large complex. Concerned about committee decision for expenses, are we entitled to know the committee members who also own investment units?

As owner residents opposed to holiday letting investors, we are in the minority in our large class 2 building.

Our strata fees are $300 per week for a small 2 bedroom apartment as a substantial loan for building upgrades needs to be paid off over the next 7-8 years.

Continuing upgrades to the complex are mostly relate to ‘resort’ facilities.

Are we entitled to know the committee members who also own investment units?

Answer: An owner is not entitled to require other owners to provide them with information about whether they are an owner occupier or investor.

No – an owner is not entitled to require other owners to provide them with information about whether they are an owner occupier or investor. However, an owner is entitled to search the body corporate record or ask other owners (you just may not get a response).

There also may be information on the body corporate record that allows you to conclude whether a lot is owner occupied or tenanted.

Todd Garsden Mahoneys E: tgarsden@mahoneys.com.au P: 07 3007 3753

This post appears in Strata News #441.

Question: Is only the Chairperson allowed to contact the Body Corporate Management company?

Answer: I know that some committee’s try to restrict owners from contacting the Body Corporate Manager to prevent additional BCM fees from incurring, however there is no legislation in place that prevents an owner from contacting their body corporate manager.

Tammy Lynch Tower Body Corporate E: info@towerbodycorporate.com.au P: 07 5609 4924

This post appears in Strata News #397.

Question: As a lot owner, I’d like to have access to some of our body corporate records. Shouldn’t these be posted to the strata portal for the information of all?

As a lot owner, am I able to access our body corporate records such as:

Strata Financial Audit reports;

Workplace Health & Safety reports;

Sinking Fund Forecasts

Should these be posted on the strata portal for the information of all owners.

Answer: If they are body corporate records, they should be available to owners.

If they are body corporate records – which they are – they should be available to owners. I am not sure there is an obligation to post them to portals, but if owners want them they are certainly entitled to them.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #303.

Question: Our large complex on the Gold Coast does not have audits. I’d like to carry out an audit but the Body Corporate Manager is refusing me access to the body corporate financial records unless I pay a large fee.

We own a Unit in a large Residential Strata Title Complex on the Gold Coast Queensland with over 500 lots.

At the last AGM the committee requested that in order to save the building money, the lot owners vote for no audit. The motion was passed and now we have no audit.

With such a large build and expenditure in the high millions each year I am concerned.

I wish to have an audit carried out myself just to ascertain that all is well and above board.

The Body Corporate Manager is refusing me access to the body corporate financial records unless I pay them a very large sum of money. Their argument is that the financial reports have to be prepared by them and I must pay them for that time.

How can this be right? The Body Corporate owns the Licence for the software and all I require is to access that software and then download the requested files myself.

The Body Corporate manager says they have received legal advice and will not allow me to access the files.

Is the Body Corporate Manager in their rights by not allowing me free access to the files we have already paid for? If the legislation states that they have to grant me access, but they still refuse, what can I do?

Answer: The owner should make a formal records request including a down payment on the prescribed fee.

We would suggest that the owner makes a formal records request including a down payment on the prescribed fee (of what you think a reasonable estimate would be) – the body corporate or manager cannot charge you more than what the prescribed fee is on a per page basis if you want them to send you the records.

Otherwise the owner could arrange for their own inspection of the records (for a set fee).

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #298.

Question: I have Adjudicators Order to obtain certain financial records of the Body Corporate. The Committee and Strata Manager are refusing access and obstructing the Adjudicators order. What are the next legal steps?

I have an Adjudicators Order to obtain certain records of the Body Corporate, mainly financial records from over the last five years.

The Body Corporate Committee and the Strata Manager are refusing access and obstructing the Adjudicators order.

I am now proceeding to an enforcement order in the Magistrates Court and the appointment of an Administrator, being another Strata-Manager, to enforce the order. What are the next legal steps if the existing Strata Manager refuses to provide the requisite records to the Administrator so appointed?

Answer: The next step would be a Complaint and Summons pursuant to the Justices Act which might prompt compliance.

The next step would be a Complaint and Summons pursuant to the Justices Act which might prompt compliance.

It won’t necessarily get orders for compliance, but it is a quasi-criminal application and penalties (fines) can be imposed. The Complainant won’t get the benefit of the fine but may get costs back and it can be a good incentive for compliance if the offenders are having to front Court and explain why they aren’t complying with an order.

Time limits apply though. These are 12 months from date of offence.

Frank Higginson Hynes Legal E: frank.higginson@hyneslegal.com.au P: 07 3193 0500

This post appears in Strata News #267.

Question: Can a lot owner, strata committee member, strata secretary or owner carry out a strata roll inspection? What qualifies access and what are they entitled to inspect?

Who has access to the file kept by our strata manager containing a history of minutes, paid accounts etc. apart from the strata manager & their staff?

Can a lot owner, strata committee member, strata secretary or owner carry out a strata roll inspection? What qualifies access and what are they entitled to inspect? If access is given, what responsibility does the strata manager have to advise the other owners, or in fact seek their approval, beforehand?

Answer: Lot owners and Committee members are allowed access to the records and the Strata Manager must make all of the records available to you.

Lot owners and Committee members are allowed access to the records and the Strata Manager must make all of the records available to you (other than any record that may contain defamatory material). There is no requirement for the Manager to seek approval from either the Committee or other owners. You as a Committee member or an owner are effectively requesting access to your own records. Each state has different requirements for payment of fees etc.

There is a misconception that the Strata Manager can restrict access to records they hold on behalf of the Strata Corporation (Body Corporate). Some Strata Managers have been reluctant to allow access to the Roll and issues frequently arise when an owner is refused access. There are various recent articles by Legal Professionals in relation to this issue, however, under current Legislation, a Strata Manager must allow access to the records and the Roll if requested as there are no privacy laws overriding an obligation to provide them.

Other “interested parties”, for example a buyer of a Lot or Mortgagee, can also access the records upon giving the required notice and payment of a fee.

Dee Pannell Body Corporate Matters E: dee@bodycorporatematters.com.au P: 0409 873 181

This post appears in Strata News #173.

Have a question about accessing body corporate records or something to add to the article? Leave a comment below.

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