Question: How can we address the declining performance of our aging caretaking service contractor and mitigate the negative impact on our strata complex?
Our caretaking service contractor (CSC) in our 50+ complex has been performing their duties poorly for a few years. As the CSC is close to 80, they show signs of dementia. They forget things and angry easily if questioned. This results in poor compliance issues, contractors not wanting to work at our building, and angry discussions with owners if they want a new access card, etc. Basically, the caretaker has become a recalcitrant volcano who only does what they please.
We have taken over some of the CSC’s duties like WHS actions and tried to manage as best we can. We ensure the caretaker does not manage major repair jobs. The caretaker finds this offensive and some uninformed owners think we are being unreasonable.
This is a full-time job. The committee is an older cohort that hasn’t the stamina or the will to manage this situation. What can we do?
Answer: Any issue that arises about the alleged non-performance of duties by the CSC has essentially two roads to follow.
This is a tricky, sensitive issue and I sympathise with you in dealing with it.
Approaching this firstly from a non-strata perspective, does the CSC have family or people close to him that could be discreetly spoken to about the situation? That may be one way to do things. If not and there is a suggestion that the CSC may not have capacity, then it may be the Office of the Public Guardian could be contacted for general information about the situation.
Otherwise, putting the purely-strata hat back on, any issue that arises about the alleged non-performance of duties by the CSC has essentially two roads to follow. Road one sees the committee engaging in negotiation, mediation, communication and generally, a process of working with the CSC to resolve performance issues or map out an appropriate exit strategy. Many of these things are, at the risk of being seen to be overly self-promoting, what Strata Solve does.
Road two sees the committee embark upon formal proceedings to remedy the situation with the CSC. Road two is a long, very costly and often very stressful one to follow, so you and the committee need to be sure you want to see it out. It will require legal advice.
As you quite rightly point out, it becomes a full-time job and you probably have reached a point where ‘do nothing’ is no longer a viable option. So you will need to reflect upon the above and make a decision. This will not be an easy thing, although the sooner you opt to do something, the better. In other words, you need to start the process.
This is general information only and not legal advice.
This post appears in the December 2024 edition of The QLD Strata Magazine.
Chris Irons
Strata Solve
E: chris@stratasolve.com.au
P: 0419 805 898
Is it reasonable for a Committee member to ‘watch’ the Caretaker in almost every move? The agreement itself does not specify any ‘business hour’ requirements. In a committee meeting, the committee presented a documented list recording the dates, times, and activities of the caretaker, including when the caretaker enters and leaves the complex. This list was compiled by several residents who continuously observe and record the caretaker’s activities.
From the Caretaker’s point of view, he performs his duties as required by the agreement and sometimes allocates work to subcontractors as permitted. It seems unreasonable to track every move of the caretaker and argue about the perceived insufficient working hours, as the caretaker is the owner of the management rights business and operates as an independent contractor, not an employee. The caretaker has the right to arrange his business as he sees fit, as long as he fulfills the duties outlined in the agreement.
Of course, the ‘standard’ of performance is a subjective matter. While it’s understood that the committee wants to monitor all details, is it really acceptable to ‘watch’ and ‘record’ every move of the Caretaker, including aspects of his personal life that are not related to caretaking activities?
Hi Seton
Chris Irons, from Strata Solve has responded to your comment in the article above.
I live in a complex of 24 units of four storeys. There are two identical buildings and each has an entrance covered by a 1,5 x 1 m awning. This shield was specified as being of tempered glass. Some years ago the glass shattered. This was helped by rain overflowing from inadequate gutters. Water from there hammers down on perspex and the noise happens even if rain is light. I try to work about 3 metres away. I am the only one affected because of design. Other residents are aware of the noise but do not hear it in their units.
The glass was replaced with perspex because committee wanted the cheapest option. That material is much noisier than glass and is getting worse. The concrete pavers below are all pitted. The Chairman told me to shut my small privacy window which makes no difference at all I am 86 and this problem is affecting my health. My query is ‘Do building specifications require like for like for building replacement’
Hi Jan
The following response has been provided by Chris Irons, Strata Solve:
I am assuming that your building is in Queensland.
I can’t speak for building specifications. What I can speak for is body corporate legislation. The body corporate can make what is called an ‘improvement’ to common property and that means it need not necessarily replace like for like. That said, the body corporate – via its committee – must act reasonably in everything it does. It also has obligations in relation to nuisance. A ‘nuisance’ can be an audio nuisance.
If you haven’t already done so, you should keep a log or at least some kind of record of the noise you claim is occurring, as you will need to do this if you take the matter any further.
My question to you: what outcome would satisfy you in this situation? Are you seeking the Perspex be replaced, and if so, with what? Or is there any kind of mitigation that would make the situation ‘ok’ for you? It’s important to have an answer to this, because it will determine how you move forward.
Chris Irons, Strata Solve
W: https://stratasolve.com.au/
E: chris@stratasolve.com.au
P: 0419 805 898
As a new tenant in a body corporate complex I was finding my way around living in a managed environment and signed up with ‘lookupstrata’ to become better armed.
I am astonished/appalled at the mess that is created with the many issues, incompetent committees, mismanagement and endless complaints.
Our committee, has no money in the sinking fund, wont raise the levy, has ignored desperately needed work and attempted to borrow money to paint when they dont even have enough money to manage the place. The place is rundown and needs a lot of money spent on it to bring it back up to standard
I can tell you that I may be being seen as someone who is difficult, aggressive and demanding.
My response is that the committee is ineffective, unwilling, incapable and has failed at its responsibilities and my investment value has been negatively affected
Im told it is about communication but all the communication in the world wont move a group who has the game sewn up.
That same committee appointed a manager, and he reflects their ability perfectly. We have a dysfunctional management system to look after this multimillion dollar complex
I now understand why the whole Body Corporate management system is a minefield for owners and great for lawyers.
Hi Hynes legal or look up strata
I am a newly appointed executive committee member. Recently we all agreed to start addressing the by laws that weren’t being followed or executed on other owners from the previous Committee members.
The previous Committee members are now consistently emailing and harassing me as they believe it was instigated by myself due to my previous knowledge of strata. The emails are false in statements, making serious accusations (eg we kicked their dogs, or physically assaulted them etc and to stay away as we are violent – which obviously isn’t the case). These emails are being sent to other owners. They are also approaching owners on common property with their comments to encourage similiar bullying by them towards us. .
The other Committee members are now too intimidated to react and will not support my attempt to try and address these bullies.
Do I have any legal rights as a Committee member? Is there legal funding under insurance? Or is it a police stalking matter? Do we have a defamation case?
My partners and my health have suffered greatly as this bullying even started prior to being voted in on Committee.
We are now being left out of Committee decisions also. So the current Committee is also alienating us now.
I am being bullied by our building manager. What are my rights as an owner?
Hi Tracey
The following response has been provided by Chris Irons, Hynes Legal:
To answer your query some specifics would be needed. What do you mean by “bullying”? There’s no reference to or definition of “bullying” in body corporate legislation so it is important to be clear about what is actually going on, because that will help determine what your rights are.
I am a building/caretaker of a medium sized complex. The committee are active, I have a somewhat good relationship with them. I find that sometimes the executive committee do not want the general committee to know the general business and or have an opinion. How do I determine when I should just approach the executive committee over all committee members for an approval vote ?
Hi j ferguson
Thanks for your comment. We’ve received this reply from Frank Higginson, Hynes Legal:
You need to act like we do as lawyers for a body corporate.
We have a single point of liaison (usually the body corporate manager or another committee member) who gives us the committee’s instructions. We don’t go beyond that to understand the deliberations of the committee in terms of those instructions. How that liaison person got those instructions is then up to them.
Most management rights agreements have a specific clause to that effect, so I think look at your agreements, see what they say, and assuming they are ‘standard’ gently manage the body corporate into appointing one person to communicate with which then takes all of this away. Even if there is no formal clause, it still makes commercial sense for there to be one point of contact. That way, there is far less chance of conflicting instructions.
Thank you for your reply.
Hi we live in strata titled apartments in qld. I have just been re-elected for a second term on the body corporate committee for our complex. We recently had our AGM and a newly elected committee member came up and bullied and threatened me because i spoke up at the AGM because he was patronising and rude to previous members. A few days later we had our monthly happy hour for all residents and my husband confronted this man and asked him not to speak to me like that and to apologies. He refused to apologise. My husband later in the evening was talking to a group of residents saying that the bullying of women was not on. Later in the week we received a written letter from the self nominated residents group (formed by a few elderly ladies who hold a residents meeting to complain and bitch every few months) saying that the few residents that were left that night were disappointed at my husband and I and how we conducted ourselves at the happy hour. It went on to say that a number of people expressed doubt as to the appropriateness of me representing them on the BC committee. Mind you most residents didn’t see the confrontation at the AGM between myself and the other committee member that started this discussion at happy hour.
What grounds does this self nominated group have to send any such letters to any residents. Our complex is made up of 5 towers and this residents group does not represent ALL. They have a small following of complainers. What can we do here, we feel like we have been slandered to other residents.
Hi Karen
We have received this reply from Todd Garsden, Hynes Legal:
All owners have the ability to address concerns they have with other owners or committee member conduct – what is important is that the way it is done is reasonable and courteous. Otherwise, there may be a by-law that is being contravened (leaving aside that is just good manners).
These things have a tendency to snowball and escalate, so it is important to keep perspective on what the actual issue may be.
If a person has been defamed then they may have their own rights in relation to that but this seems more of a personal issue than a committee / body corporate issue.
Can a BC Caretaker Contractor sign a document on behalf of a BC to borrow funds ($340,000) for BC Insurance premium funding in the name of the BC with no general or committee meeting minutes and without any Lot owner approval? A copy of a current loan document signed off by the BC Caretaker and co-signed by the Chairperson on behalf of 129 Lot owners CTS recorded on BCS BC records without any BC approvals from the lot owners. Insurance levies are applied separately from sinking and admin levies quarterly but the insurance levies collected have not been applied to the annual insurance premium, instead the full cost of the Insurance premium has been borrowed with no BC authorisation in the name of the BC.
What can very concerned CTS Lot owners do about this?
Hi Barbara
Thanks for your comment.
In this instance, it may be best to contact your strata manager directly with your concerns to discuss the matter.
Nikki
What if there is proof that the two paid service contractors, the caretaker, and the strata manager who is also the agent for the insurance brokerage company, work together in concert controlling levies received and spending at times without any authorization outside of the common property needs and outside of annual budgets set down.
No separate account keeping of admin and sinking fund levy records available for owners only at AGMs.
Emails of concern are ignored by the Strata manager and by the BC committee who are all letting pool rental recipients of the caretaker/letting agent.
The head office CEO of the Strata Company is included in correspondence of concerns but chooses to refer owners back to the Strata manager without any investigation of complaints.
Where can Lot owners receive justice when there is clear proof their BC levies are being abused by paid service contractors? Is this a matter to be dealt with by the BCCM, QCAT, or other relevant bodies?