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