Question: Is the caretaker allowed to subcontract caretaking duties without approval? If the service is substandard, what rights does the body corporate have to enforce the agreement?
I’m on the committee of a medium-sized Queensland scheme with a long-term caretaker agreement. The caretaker is contractually responsible for maintaining the gardens and lawns. However, over the past two years, they have outsourced almost all of the work to a third-party contractor without notifying the committee or seeking approval.
The committee only discovered this after repeated complaints from residents about the poor state of the gardens. When we raised it, the caretaker said they had the right to subcontract the work and that the body corporate had no say in who they used. The caretaker has not provided documentation or an agreement relating to this arrangement.
The current contractor is doing a poor job and ignoring committee requests. At the same time, the caretaker still invoices the body corporate in full, and we suspect they are paying the subcontractor much less and retaining the difference.
Is the caretaker allowed to subcontract caretaking duties without approval? If the service is substandard, what rights does the body corporate have to enforce the agreement? Can we request to see the subcontractor’s terms or challenge the caretaker’s invoicing if we believe it is excessive?
Answer: Whether the caretaker can subcontract, and if any approval to do so would be needed, depends on the terms of the caretaking agreement.
Whether the caretaker can subcontract, and if any approval to do so would be needed, depends on the terms of the caretaking agreement. Each agreement will have different provisions in this regard.
Either way, the committee will be entitled to have the works properly completed to the standard in the agreement, and the caretaker would be responsible for any substandard works, whether they carry them out or if they subcontract the works.
If the committee can send through a copy of the agreement, we can advise on whether the decision to subcontract requires approval.
There would unlikely be any rights to reduce the caretaker’s salary as this is typically a fixed term of the caretaking agreement. Similarly, there is usually no right to see the caretaker’s subcontracting arrangements.
This post appears in Strata News #757.
Todd Garsden
Mahoneys
E: tgarsden@mahoneys.com.au
P: 07 3007 3753
What actions by the Committee can be considered bullying towards the caretaker?
For example:
Insisting on recording conversations without permission.
Sending multiple non-urgent emails daily outside of working hours.
Using threatening language to force the manager to attend frequent meetings.
Forcing the caretaker to inspect parking and policing the by-law on-site every night, including weekends, even though there are no office hours in the contract.
Hi David
The Q&As in this article should assist:
QLD: Bullying in Strata! Some Committees are Extremely Unreasonable
I am a onsite manager. My contract is somewhat vague.
The committee ask me to do a lot of repair works, such as redo the silicone caulking in the stairs, repairing the crack walls on the hallway and repair all dent in interior walls of the whole building, and high-pressure wash the concrete driveway and roof top garden walkway nearly 800 square meters. Are these request reasonable is this really a onsite managers job?
Hi Leo
The following response has been provided by Frank Higginson, Hynes Legal:
The answer depends 100% on what the management rights agreements say and if it is grey – how the duties are interpreted.
Hi,
I have been reading your Q & A and found it very informative.
I have a question about the property I manage.
I have caretaking and letting agreement for the property. We have 2 doors leading to the pool area from reception, these are both fire doors and marked as such. Guests get confused and think that as fire doors these are NOT for pedestrian traffic, so they get lost trying to find the pool.
I have, at my cost, installed a small sign on both doors to let people know that the pool is through these doors.
The Body Corp liaison person has told me I am not to install such signs without their approval. Is this correct?
Hi Tim
Chris Irons, Strata solve has responded to your comment in this article: QLD: Q&A Authorising Common Property Changes or Improvements
For the communication between the Caretaker and the Body Corporate. Usually the agreement requirement that the Body Corporate to nominate a person to act as a primary point of contact (the Nominee) for communication regarding caretaker duties.So whether means the Caretaker reporting common property repair needs or hazards to the Nominee is considered sufficient to satisfy the obligation of reporting these issues to the Body Corporate?
Hi Blurnt
The following response has been provided by Frank Higginson, Hynes Legal:
That would usually be the case
As a caretaker under an agreement that was established 10 years ago, there are no specified office hours or working hours, and the remuneration, which was agreed upon by the previous caretaker and the body corporate, appears to be increasing and becoming the largest outgoing expense. The body corporate feels that the remuneration does not align with the actual effort expended, given that the caretaker seems to allocate limited working hours each day to perform his duties. However, it must be noted that the caretaker is fulfilling his responsibilities in accordance with the contractual agreement. The performance may not be exceptional, but it meets the requirements set forth in the contract.
The body corporate wants to discuss the agreement with the caretaker, possibly via a time and motion study or by employing a strata expert to evaluate the caretaker agreement. The goal is to determine whether the remuneration is fair. At this stage, the body corporate is considering a discussion with the caretaker, involving an expert who specializes in contract review or time and motion studies.
Does the caretaker have an obligation to answer all questions from the expert regarding his time allocation for work, among other things? Alternatively, could the caretaker refuse to share his work records, given that there is no contractual obligation to do so? And, as it is understood, if the caretaker, as a party to the contract, does not agree to any changes, then regardless of the results of any study, the contract cannot be altered.
Hi Stanfen
The following response has been provided by Frank Higginson, Hynes Legal:
The starting point for this is the management rights agreement is a contract. As such it is binding on both parties to it in accordance with its terms and a party is only obliged to do what the contract requires of it. So there is no obligation on anyone to agree to do something outside it – from varying the remuneration, to increasing the duties and through to varying it to increase the length of it. In those circumstances, if one party wants to change the agreement then that needs to be approached from a commercial perspective (in terms of what’s in it for each party) and not a legal one (in terms of ‘the agreement says you must’). Both parties are entitled to investigate the cost and value of the services provided at their own volition, but unless the agreement provides for it, those investigations won’t lead to an obligation on the other party being forced to agree to any changes as a result of that investigation.
This is regarding the painting text marks for the visitor parking spots. The text marking these spots, labelled ‘Visitor’, was painted 25 years ago, and with time, most of them have faded significantly.
The Body Corporate has expressed an interest in having these markings refreshed or repainted. This task would include removing or painting over the old ‘Visitor’ marks and applying new ones on the concrete kerb of all visitor parking spots.
My question pertains to the classification of this work. As per the Caretaking Agreement, would such an activity fall under the category of ‘minor repair or maintenance’?
Additionally, if the Body Corporate were to request a new color scheme and new text, such as ‘Visitors Only,’ would this be viewed as an improvement rather than maintenance?
Given that the Caretaking Agreement is primarily meant for maintenance obligations, would it be within the Caretaker’s rights to refuse to carry out what might be classified as improvement work? Alternatively, could the Caretaker propose a new fee structure for delivering these ‘extra’ services to the Body Corporate?
Hi Kiurrtis
The following response has been provided by Frank Higginson, Hynes Legal:
It is impossible to comment meaningfully on this without a proper review of the terms of the agreement. Off the cuff though, I would have thought a professional painting contractor would produce a better outcome than an unskilled service provider for something like this.
Hi,
I am seeking some clarification regarding the distinction between the roles of a Caretaker Manager and a Body Corporate Manager. In the Caretaker’s agreement, it is stated that, in accordance with Section 14 of the BCCM Act, if any of the Caretaker’s responsibilities qualify them as a Body Corporate Manager, such duties should be modified or excluded to prevent this classification. According to Sections 14 and 15 of the BCCM Act, a Body Corporate Manager is responsible for providing administrative services (including general and financial administration) to the Body Corporate, while the Caretaker Service Contract focuses on delivering services other than administrative in nature.
Considering these provisions, if the Body Corporate requests the Caretaker to gather and maintain the Owner Roll (Body Corporate Records), would this constitute a conflict with the Caretaker Agreement and the BCCM Act? Furthermore, is the Caretaker not obliged to undertake such administrative tasks and thus, within their rights to decline such requests? Thank you.
Hi Hesail
Frank Higginson from Hynes Legal has responded to your question in the article above.
For caretaker reside duty, does it mean they have to live on the manager unit and should be at home or office every minutes? What is the after work hours , weekend and holiday meaning for them? Do they have to report if they need to have 1-2 days holiday weekend or public holiday?
Hi Monica
Take a look at the agreement and see what it states. This recent response should also assist:
Question: Our Caretaker lives two States away and has not been onsite for the past eight months. What are the legal obligations for the Caretaker to be onsite?
To Todd,
on the post appears in Strata News #408.
The scheme with no on onsite manager, with no committee living in, it appears so many concerns as unfinished gardener work by contractor (nobody controls his work), some work has to be done inside, where one of owner (older lady) does have keys to allow to entry contractor, it last many years without an engagement at a general meeting, some body corporate records are stored on the common property in the wall unlocked box.
How should be the best way managed and control the common property in situation like that when the BC can not delegate its power? There is no chance to pass motion at the AGM to engage caretaker.
Which options are there? Other a few owners living in do not want to be involved.
Our caretaker contract states that all the gardens, shrubs ect be kept to a high standard. During the committee interview with the new contract managers, a verbal agreement was made as to what a high standard was. The new managers showed photos of work they had completed and that was in line with the discussions. Further communications from the new managers set out a work plan as to how they would achieve the high standard. This did not change the contract but just clarified a vague point. Needs to say, the verbal agreement was completely ignored and now the place is in the worst condition it has ever been
I am picking up a recurring theme in relation to all of these Qs re management rights contracts…ie “When all else fails, read the instructions”, ie the contract. Surely this has to be the starting point?
The trouble with this process is that while these contracts are often very specific about how much has to be paid, and when, by the owners to their caretaker, the contracts are very short on details re what the caretaker has to do in return.
Hi all,
I have a question, I’m a new manager at a holiday resort high rise. There are more owner occupiers than the holiday units. The body corporate are made up of all retired people and are very picky. They come down every day demanding extra jobs to be done, that are not in the agreement and they think that they are in charge of the building. ( I’m their slave). The management has no say at all, they have body corporate meetings every week or so and make decisions and change rules. they like to complain about everything. What can be done to take back control of the building and set the body corporate straight?.
Hi Pete
Frank Higginson from Hynes Legal has responded to your comment on this post: QLD: Bullying in Strata! Some Committees are Extremely Unreasonable
How do we find out what our Building Manger’s Duties and responsibilities are? Pool filter not emptied for weeks, lights blown everywhere, cracked and dangerous tiles etc etc.
Hi there
I live in a building comprising 100 units. Our Caretaker is situated in an adjacent building. Our mail boxes are located inside our building. Australia Post has not in the past delivered mail directly to the boxes In our building. Parcel and packages are also not delivered directly to residents in our building. To do this would require direct access to our building. This has not been provided in the past and would require them being given security access to our building.
Australia Post delivers mail and parcels to the Caretakers Office, which is in another building. The Caretaker has then distributed the mail to mailboxes in our building. Parcels and packages are picked up by residents from the Caretakers Office.
Delivery of mail is not a service specified in the Caretaker Agreement. Despite this the service/arrangement has been provided for nine years.
Recently the Caretaker has indicated that the existing arrangement will be varied. The Caretaker has indicated that the volume of parcels and packages has increased recently due to on line shopping. There are also concerns about possible transmission of viruses from handling packages. The caretaker is suggesting that mail will be delivered directly to mail boxes by Australia Post. Parcels and packages will also be left unattended in the mail room.
Can this change be considered a variation to the Caretaker Agreement? Whilst it is not a service detailed in the Agreement it has been provided without variation for nine years. We consider it an ‘implied service’. Is this a correct interpretation?
Hi Steve
This article should assist: QLD: Q&A Unable to Have Parcel Delivery at My Apartments
“… the manager is not a concierge. It is not their job to provide services to owners for purposes like this. They also are usually not there to collect parcels and the like unless they agree to do it gratuitously.”
Our Caretaking Agreement states the Caretaker should be “contactable and available at all reasonable times”.
I understand the Caretaker does not have to live onsite but surely it is reasonable to expect the Caretaker to live locally and attend the complex regularly.
Our Caretaker lives two States away and has not been onsite for the past eight months.
What are the legal obligations for the Caretaker to be onsite??
Hi Siobhan
We have answered your query in the above article.
How hard is it to vary a Caretaker Agreement and how much would it cost? Our caretaker agreement is a very general one. For instance, the onsite manager can order mulch for the gardens, but will not spread this mulch unless he is paid $65 per hour – as the contract says he will only supervise mulching and top dressing. The whole contract is like that, supervise only for some things and not others. Costs are not listed in the agreement.
What is involved in making the Caretaker Agreement more transparent regarding extra charges and duties of the onsite manager? How much will it cost? Is it even worth trying?
Our Chairperson is keen to vary the contract but I feel it may be an exercise in futility and could be a costly exercise. I think the managers are no doubt happy with their contract the way it is as it is general and non specific in some areas and open to interpretation. If they did agree to a variation, I am sure it would be in their own favour and we may be even worse off.
I posted earlier about termination but I think this will be almost impossible. Could we at least request an addendum that shows per hour cost of jobs and what jobs are chargeable and what jobs are not? Our per annum fee Is substantial and one would think it would include spreading mulch… or taking bins to the street, but it doesn’t.
Hi Jennifer
The following response has been provided by Frank Higginson, Hynes Legal:
By the sounds of it, you need to address willingness to vary before you look at costs. Costs will then be determined by what has been agreed to be varied.
No one can unilaterally vary a management rights agreement. It can only happen if both parties agree to it, and for the body corporate that means general meeting approval.
Having said that, subject to where you get to, it would be around the $1,500 to $2k mark usually.
Our caretaker agreement is for ten years. The caretaker has recently sold her caretaker rights and unit. My question is should there be a new caretaker contract with the new caretaker signature showing he has taken over the contract for the remaining years.
I have asked strata to send the new contract showing the new caretakers name but my question is being swept under the carpet
Hi Neish
The following response has been provided by Frank Higginson, Hynes Legal:
There normally isn’t a new agreement in itself. There is an assignment of the existing one so there should be a deed somewhere to which the body corporate, the seller and the new buyer were parties. There should also be a committee minute consenting to the assignment and entering into that deed.
Hi –
I am a lot owner and have had to move out of my home due to the owner of management rights harassing me, and entering my unit when I am not home . I changed the locks to front door and he went and changed it back – so he still had access. I have kept all threatening/harassing texts. Went to Body Corporate – they ignored me . Went to police- they weren’t interested.
There are too many things to mention on here and other females have mentioned they have had the same issues happening to them and they have moved out to get away from him. This has been a tremendous financial strain and I don’t know where to go for help to resolve this.
Thanks
Hi Rachel
We have received this response from Chris Irons, Hynes legal:
I’m sorry to hear of the strain this situation has caused. That said, I’m not sure what you are wanting to pursue here. For example, are you seeking a financial outcome or are you seeking a criminal outcome? If you’ve already been to the Police regarding the alleged entry to your property, then I don’t think I or anyone else can offer you help there other than to say, if you’re not happy with the Police response, you can pursue a complaint about that.
If you’ve now moved out, you wouldn’t have any grounds on which to pursue a dispute with the manager of the body corporate. Which means that you may need to seek legal advice about your options to pursue any kind of civil action. You mention you’ve had to incur a lot of costs, so perhaps this might be the option you follow-up.
There are some limited circumstances in which the body corporate or its agent can enter someone’s property. Usually, this happens with notice although, in an ‘emergency’, the notice might not be required. Also, locks can (depending on the situation) be common property. This means that the body corporate is responsible for maintaining them and it might also mean that an owner or tenant shouldn’t be changing them without obtaining approval first.
Rachel, We have the same problem here. Our caretaker / BM thinks it’s his right to entre units under the guise to get jobs done. I am lucky to be able to afford to get bolt locks inside my home when I was home alone to lock up, as well as a monitored alarm so he can’t enter without my permission when out. The Strata and Committee just ignore me. Also, I have tried to point out BM other poor features like poor quality work, being on compo for 2 years, which has been taken as being personal and BM just turns it around onto me so I am the one considered as the complainer, stopping him doing work. My assessment is he the BM has one face for the committee and one face for other people, very frustrating. Strata Manager and Committee are not interested because they don’t get the real face. All I can do is keep a log of bad behaviour, cause one day I will need it. There is no help out there… until they really cross the line. I now have a live-in boyfriend and BM hasn’t tied entering my unit since … but still stalks me at the pool or common areas – creepy?
I am surprised that the manager has no obligations towards the owner/occupiers considering owners contribute a yearly amount towards the manager’s salary. What does that contribution afford owners? Also, our manager gives his rental pool tenants much more leniency than he gives to the owners. For example, we are not permitted to leave anything except a vehicle in the parking bays, but he allows holiday tenants to leave a number of items beside their cars such as paddle boards, surf boards and boogie boards, etc.
Hi Kathy
We have received this response from Frank Higginson, Hynes legal:
Surprisingly enough the manager has no direct accountability to owners directly as caretaker. That accountability is to the committee as a service provider with respect to services to the common property. What the manager does is (usually) provide a range of services involving the maintenance of the property for a fixed remuneration.
By-law enforcement is then a committee – not manager – issue. If you think by-laws are not being regulated the way they should be you should address that to the committee for actioning.
Our onsite manager has terminated their Caretaking and Letting Agreements, we have asked that they pass on all information in relation to contractors used, scheduled maintenance works, and have asked them to show us how to do the pool testing etc in preparation for their leaving, but they say that they are under no obligation to provide any of these, except the contractors list, as we the committee have not purchased their agreements is this correct
Hi Gregory
We’ve received the following response from Frank Higginson, Hynes Legal:
It comes down the basis on which they left and what the contract says. If there is nothing in the contract and they have left because they are unhappy, then it isn’t really realistic to expect them to be helpful. What usually changes those sorts of attitudes is some financial consideration. If they are leaving soon people will have to get their skates on to figure out what has to happen from here on in if the outgoing manager isn’t helpful.
Previous inactive committees have extended and extended Caretaker managers contract which now runs to 2028.. They are not performing their job and are off site a lot of the time working at other villages the caretaker managers run. In fact present onsite managers have quit and we heard that new managers will only work one day a week for us. There have never been 24 hour onsite managers who can be contacted in an emergency. We pay them $123K per annum – our levies are betwee3n $800-900 per quarter and there are no amenities at the village except for an empty club house.
Our village is looking shabby, the gardens have been ruined by pruning undertaken by chain saw. They have gotten contractors in to do the work they are supposed to do, ie pruning etc.
We voted in a new committee at our recent AGM and want to turn things around. The caretaker manager contract is very basic and general. We recently voted out our BC managers and will have new BC managers in the New Year as they appeared to be working hand in hand with the caretaker managers and paying invoices not approved by committee.
We need to address this problem as we pay very high levies for very little work at the village.
This is my question – The new committee wants to do a forensic audit in the New Year and if fraud or inconsistences are found, can we get rid of our present caretaker managers?
Hi Jennifer
This response from Frank Higginson, Hynes Legal:
There are lots of moving parts in this one.
Let’s start with some fundamentals though:-
1. The committee doesn’t vote management rights agreements through – owners in general meeting do
2. The management rights agreement is a contract and can only be enforced in accordance with its terms
3. Understanding what the role entails – including where duties start and finish is the most important thing here
After that, you can assess whether the contract has been complied with. If it hasn’t then the body corporate may have rights, but those rights usually don’t extend to immediate termination. The manager will more than likely have to be given a chance to remedy any alleged default before the body corporate could do anything about termination. After that, you are then into arguments about what the obligations under the agreement are, whether default was or can be remedied, and whether the default was of such a nature to entitle the body corporate to terminate the agreements etc.
I am an investor from NSW. I own a unit in a 20-unit block in Brisbane, Queensland. All the 20 units are investors owned and therefore no owner occupier in the block. Does the QLD law require a separate Strata company to run the AGM, prepare budget, etc. and a separate caretaker company to look after the general maintenance, get quotes for repairs, etc.
thank you
Audrey
Such a long queue of owners’ questions and comments ‘concerning caretakers’ conduct and attitude, inevitably followed by the lawyers’ response “It all depends on the contract.”
Assuming most of the contracts were inherited from the original owner/developer – and favour the caretaker over the owners – this is the very reason why owners should just say NO to requests for top-ups, and should keep on saying NO until the contract expires and the owners can then draft their own contracts.
We were asked, via email “Are there any templates or examples of ‘On-site’ manager contracts, stating exactly what the duties of a building manager are?”
Frank Higginson replied:
There are a few forms of them you see more than most, but that is mostly because they are generic and just cover the same old, same old.
The better way to do these is to get a schedule specifically set to the needs of the building – because each one is going to have something a little bit different.
Hi,
Is there an obligation for on site building managers to be available 24/7? I do not and have never seen their agreement.
The only reason I ask is that our electricity box kept shorting when the stove was put on and it happened on public holiday Monday and we were told by the building manager that they were away for 3 to 4 hours to turn our electricity box downstairs in the basement on and we were without power that for that length of time.
My understanding and to several people I have spoken to who live in Strata properties think the same as me that we pay the building managers a wage and they should be available 24/7. I do know of several strata property where they have 3 people as the building managers so that one person is on call on the weekends due to emergencies.
Hi Debbie
We have received the following reply back from Frank Higginson:
It all depends on the terms of the caretaking agreement – like any engagement of a contractor or employee. You need to get that to see what it says.
What I would add though is that 24/7 availability should cost more than 9-5 availability, and most caretaking agreements only really require the latter.
I am a lot owner of a medium sized building. The developer had sold management right to another caretaker about a year following settlement of most units. The new management no longer provides ‘on-site manager’ duties however they are being paid at the same rate as an onsite management service. They have also reduced the number of cleaning to common areas (i.e. lift, front entrance) per week which means the building is not kept at its optimal state. Do I have the right to (i) request a copy of caretaker agreement from my body corp manager, and (ii) request potential pay cut for the sack of body corp premium? What resources can I use to quote for realestic building manager caretaker fee? Thank you
Hi M
We have received the following reply back from Frank Higginson, Hynes Legal:
The duties of a building manager are those set out in the management rights agreements. The answers to the questions below are going to be revealed by a proper look at the agreements and the duties in them.
Unless there is some specific provision in the agreements allowing a reduction of the remuneration (which would be very unusual) the right of the body corporate if the agreements are being breached is to issue a remedial action notice. The only way an agreement can be changed is if both parties agree to it. It is a binding contract.
Thankful for this article.
Very interesting .
Hi
A detailed clause we use for this aspect of our Building Management / Facility Manager contract is copied below as a sample. In accordance with the advice above, your agreement must specify the level of performance you require of the Building Manager for the agreed remuneration. The key word is ‘must’……….This clause works well for me in a NSW holiday letting scheme with a resident manager and in a QLD residential CTS with a non-resident manager.
PL
1.1 Facility Manager’s obligation to assist Committee
The Facility Manager must:
(a) investigate, and advise the Community Association of, appropriate suppliers of:
(i) repair and maintenance services that the Facility Manager is not required to undertake under this Agreement; and
(ii) materials and equipment that must be provided by the Community Association;
(b) arrange any tenders and quotations that are needed before the service contracts and the purchases can be authorised;
(c) make the purchases and arrange the service contracts authorised by the Community Association;
(d) supervise the employees and contractors engaged by the Community Association to perform work or services and as far as reasonably possible ensure that those employees and contractors perform their duties in accordance with their employment or contracts;
(e) use reasonable endeavours to ensure that the work is done properly and safely;
(f) make sure any certificates or approvals required from relevant authorities are obtained and that appropriate records are kept of the work and must provide to the Strata Manager the original copies of all such certificates, approvals and records;
(g) ensure that a person doing any work on the Community Property has all required licences and insurances before the work begins; and
(h) give the Community Association copies of tenders, quotes, contracts, work orders, invoices, appointment letters, receipts and other relevant documents relating to the work.
Thank you for you input, Phillip.
We have received the following reply from Todd Garsden, Hynes Legal:
That is quite a comprehensive clause and probably balances the expectations of a more involved building manager with an active committee.
If that clause was in the agreement for the original question – then there would be a duty to provide more than just the quotes and go a little further from the building manager’s perspective.