Question: Our common property requires timely maintenance. The area has been inspected, and the body corporate has the report, but six months later, nothing has been done. Is this grounds for an application for adjudication?
Our complex is under the Building Format Plan.
Late last year, the committee engaged a licensed building inspector to assess and report on the building maintenance requirements of our 13 units. The committees had the report since the end of last year. Six months later, owners are waiting for maintenance to be carried out on their units.
Some maintenance involves replacing rotting timber, which will deteriorate further over time, significantly increasing repair costs. Owners have not been advised what maintenance they are responsible for and what the body corporate is responsible for, and the body corporate has not responded to requests for information.
What recourse do the affected owners have to expedite the necessary maintenance of the common areas? Is the committee’s negligence in responding to questions from owners and not actioning the maintenance promptly grounds for an application for adjudication?
Answer: Getting as much accurate information as possible is important.
If a committee is not actioning required repairs, it may be necessary for body corporate owners to push the issues to ensure they are done.
As a starting point, getting as much accurate information as possible is important. You mentioned recent builder reports. Are these available to owners? If not, you could request them. If necessary, you could arrange a search of the books and records. You could also reach out to the builder and see if they would send them to you.
The reports should tell you what needs to be done and whose responsibility it is to pay for it. You can compare the reports against requirements for building format schemes.
Then, you might need to consider whether any repairs have been considered at a committee or general meeting. Has there been any formal discussion, or has the committee provided any notification about the work? If not, do you know if there is a reason why?
Once you are as clear as can be about the situation, you can start working towards resolution.
As a starting point, you might write to the committee highlighting the issues and asking what the plan for resolution is. If it would help, you could offer to assist with arranging quotes. Ask for your correspondence to be tabled at the next committee meeting to make it more formal.
You could submit an owner’s motion if there is no response. This motion requires the committee to vote on your proposition within six weeks. If they don’t, the motion is considered defeated. These motions are a good way to force a formal outcome of some kind, as even if the committee doesn’t respond, that inaction still gives you something to work off.
The next step is likely to be a submission via the commissioner’s office to compel the body corporate to undertake the works. If the matter was urgent enough, you could immediately jump to this step. The body corporate is obliged to maintain the common property in good condition. If it fails to do that, you can expect adjudicators to support a submission that demonstrates this is not happening.
Alternatives to these options might be replacing the current committee with one more amenable to arranging the repairs or calling a general meeting to have the repairs voted on. If you have an AGM coming up, that could be the time for you and others to joining the committee. Otherwise, if you have 25 per cent of owners in agreement, you can force a meeting to either replace committee members or vote on repairs.
So, in terms of actions, there are quite a few possibilities. However, if it were me, I would always try to start with a conversation with the committee. Maybe there are problems you don’t know about, or perhaps the committee is overwhelmed and needs help. Hopefully, the committee will be open to discussion and resolution. If not, you have the legal process to fall back on.
In terms of whether the committee is being negligent in their duties, it is not possible for us to answer given the limited information available. However, I often get questions like this, and the reply is: what will you do if they are negligent? The best thing may be to replace the committee as soon as possible. As indicated above, there are processes behind this. Otherwise, perhaps their inaction could trigger your insurance policy, but do you really want to activate this? It won’t help your claims history and premium moving forward and may make it difficult for you to get insurance.
People often talk about negligence with some idea of getting accountability against committee members for their actions. Still, those committee members are also part of the body corporate, and it can be hard to take action against them without also harming the body corporate. It’s usually better to draw a line in the sand and move forward rather than spend time considering recriminations.
William Marquand
Tower Body Corporate
E: willmarquand@towerbodycorporate.com.au
P: 07 5609 4924
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