This article discusses whether owners can overturn agreed changes to a caretaker’s duties and how a caretaker office hours variation can be reversed under body corporate law.
Question: By agreement, our caretaker’s office hours have changed. This is causing building access issues. Can I submit a motion to have the decision overturned?
Our Caretaker submitted and won a motion at an AGM to have their agreement changed regarding office hours. They were required to keep the office open 8:30 am – 5:00 pm Monday to Friday. This was changed to “they must be available on-site between the hours of 8:30 am – 5:00 pm”.
The office is regularly closed. When the office is closed, the front auto door cannot be opened without a key and the building is essentially locked. This is causing a lot of issues and there was no monetary compensation from the Caretaker. As an owner, am I able to submit a motion at our next AGM to have this overturned and reverted back to the original clause in the Agreement?
Answer: A variation cannot be imposed on a manager.
A lot owner can submit a motion to be considered by the body corporate at any time. If that motion were to propose further changes to the agreement (such as to reverse the first round of changes) then it would be of no effect unless:
- The body corporate passed the motion; and
- The manager separately agreed to the variation.
This is because a variation cannot be imposed on a manager. It must be given effect to by mutual agreement.
An alternative would be to propose a motion that revokes the body corporate’s original approval for the change. However, even if this motion passed, the manager may have rights that have already crystallised if a deed has been entered into (and signed by the body corporate) that gives effect to the initial changes.
This post appears in the February 2023 edition of The QLD Strata Magazine.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
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