Question: A caretaker contract with a vague scope of works may lead to disputes over the quality of work being done. When approaching this, what is a good response if the caretaker says ‘that’s not in my contract’?
Many caretaker contracts have a vague scope of works. They may say the driveway should be cleaned once a week but there is no reference to the standard. This can lead to disputes over the quality of work being done. How should Committees approach conversations like this with caretakers? What is a good response if the caretaker says ‘that’s not in my contract’?
Answer: Consider engaging an independent management rights expert to do a common property condition report.
This is a great question and one that we find a lot of because the common themes that we see in caretaking agreements is that the older the agreement, the more vague, the more broad and ambiguous the terms or the duties are. The more modern agreements have what we call a specified duties list and that specified duties list really does give the prerequisite particularisation, but also, frequencies built in there.
To answer the question, ‘How can a committee approach these type of conversations?’, it will depend on whether they’ve been approached previously with the caretaker. If they had been approached and the caretaker has essentially responded with ‘That’s not included in my contract. I’m not going to be doing that’, then the next step for the committee to consider would be to get an independent management rights expert in to the scheme and to do what’s called a common property condition report. I think it’s safe to say that most committee members would not have the prerequisite skill and knowledge that a management rights expert would have.
The difficulty we see is that there is always this argument of nitpicking. The caretaker says ‘The committee’s nitpicking. They’re being subjective in how they’re scrutinising our performance’, and then the committee says ‘No, we just want it to be of the standard that we expect’. So having a management rights expert come in and do a common property condition report. It takes away that subjectivity.
It takes away that argument of nitpicking in the committee can say ‘Okay, so it’s not us that is scrutinising you. We’ve got somebody independent in. This has been the report about the standard of this scheme and the condition of the common property, can we table it and have a discussion with you about how we can go about fixing this? There are two very different interpretations of your duties, and unless we work together to resolve them, we’re going to continue to have these arguments about what you are or are not required to do’.
Now, depending on how those discussions go; If they go poorly, the committee might need to consider issuing a remedial action notice, but if they go well, the committee might engage in some private negotiations with the caretaker to say, ‘Okay, let’s tidy this up. We don’t agree. Let’s get a specific schedule of duties prepared by an expert that ultimately says what you’re required to do with a good satisfactory level of particularisation and the frequency in which you’re required to do it. And let’s do a deed of variation and put it to owners so that we can resolve this moving forward’. That, to me, would be a pragmatic commercial outcome for both parties. It’s all about how you communicate it and it’s all about making sure that what starts as a performance based issue doesn’t escalate into a personality based issue because of poor communication there as well.
That’s probably how I would deal with it first and foremost. Obviously, my opinion with specific schedules of duties is that they work for both sides. The caretaker knows what he/she/it is required to do and the committee knows what is required. Then there is an ability to tick check things off and not have different interpretations of things as well.
This post appears in the November 2021 edition of The QLD Strata Magazine.
Jessica Cannon Cannon + Co Law E: jessicacannon@cannonlaw.com.au P: 07 5554 8560