These Q&As about the duties of a building manager, the Privacy Act and disclosing information about lot owners have been answered by Frank Higginson, Hynes Legal.
Jump directly to the QUESTION you are after:
- 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?
- QUESTION: If we ask the building manager to inform the residents of works being done, he absolutely refuses. We believe this is one of his duties as the building manager.
- QUESTION: Should purchasing parts etc for repairs around the complex form part of the duties of a building manager? If so, what mileage can I charge the Committee?
- QUESTION: We are experiencing unprofessional conduct from our onsite managers who are providing personal information about lot owners. The police have been involved. We receive no support from the Body Corporate Managers and Committee.
- QUESTION: What are the duties of a building manager when it comes to providing relevant information to committee members before a vote is taken?
- QUESTION: What is deemed appropriate behaviour by onsite managers? Do the duties of a Builder Manager include the enforcing of by-laws?
- QUESTION: What qualifications form part of the duties of a building manager? Does our Building Manager need any specific qualifications like a resuscitation certificate or any OHS qualifications?
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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?
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?
Answer: If the duties are being performed this alone might not be an issue.
What this all comes back to is what the management rights agreements say. Off the cuff, I think it would be hard to say someone is available if they live interstate – but the rest of detail is then what matters as in ‘available’ for what? Coffee with the committee? Daily cleaning of the pool? A bunch of things in between?
In essence, if the duties are being performed this alone might not be an issue because ‘available’ can be on the phone (the same way Chris and myself are available). The agreement itself will deal with what that is supposed to mean that is above and beyond just that clause.
This post appears in Strata News #369
Question: If we ask the building manager to inform the residents of works being done, he absolutely refuses. We believe this is one of his duties as the building manager.
I live in a Townhouse complex in Brisbane and we have an onsite Building Manager. I am also on the Committee.
If we ask the building manager to inform the residents of works being done, he absolutely refuses and will only inform the tenants in his rental pool. This duty then falls back on the Committee and we don’t believe that it is our job. We believe this is one of his duties as the building manager.
This is very frustrating as the committee are all volunteers and most of us work full time. We certainly don’t get paid to do this type of administration work.
Answer: I suspect the manager is right.
I suspect the manager is going to be right. The starting point has to be their caretaking agreement and what they are specifically obliged to do. It is possible (but very unlikely) that the agreement obliges them to deliver notices to lot owners individually. If it does, then they must.
If it doesn’t, then it is up to the committee to manage the process – like it would have to in a building without management rights.
A caretaker has no direct relationship with lot owners individually other than via their letting appointment if they manage lots for lot owners. They have no relationship as caretaker with owner occupiers or outside managed properties. They are accountable to the committee only for their performance as caretaker.
This post appears in Strata News #293.
Question: Should purchasing parts etc for repairs around the complex form part of the duties of a building manager? If so, what mileage can I charge the Committee?
Answer: If it is not set out in the contract, it is what is agreed.
If it is not set out in the contract, it is what is agreed.
And if they don’t agree to pay it, it is one of those things where you might not actually go and do it if it is not your job …
These styles of argument are usually symptomatic of larger issues, and before you start playing the contract by the black letter of it, it is worth understanding what you are not doing that you should be …
This post appears in Strata News #270
Question: We are experiencing unprofessional conduct from our onsite managers who are providing personal information about lot owners. The police have been involved. We receive no support from the Body Corporate Managers and Committee.
Many of the lot owners in our scheme are experiencing the most unprofessional conduct from our onsite managers.
The most serious issue being the managers providing personal information about a lot owner such as when this lot owner is home if their vehicle is in the basement etc to a perpetrator that has charges of assault, trespassing, and stalking. What are the duties of a building manager when it comes to disclosing information about lot owners?
Police have spoken to the on-site managers, as it is a breach of the Privacy Act and places the lot owner at a safety risk.
We receive no support from the Body Corporate Managers and Committee, as they feel it’s not their problem. They have stated it’s a civil matter.
What can we do?
Answer: I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.
The first thing is whether we can say for absolutely certain that the information is being passed on? And by who? Who factually knows this? It would be a very dangerous allegation to make, especially if the fact someone is home could be found by alternate means – likely simply seeing them come in or observing the lights were on.
I don’t think it is a breach of the Privacy Act – that relates to information and also only captures businesses with a turnover of more than $3 million. See this article I wrote about this matter – QLD: What does the Privacy Act mean for management rights?
Off the cuff, I think it is a civil matter too. I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.
This post appears in Strata News #200.
Question: What are the duties of a building manager when it comes to providing relevant information to committee members before a vote is taken?
I would like to know the duties of a building manager, and if it is their responsibility to provide all relevant information to committee members before a vote is taken?
Should they do the research or expect the committee members to it?
I live in Queensland and many of our lot owners are very unhappy with the managers’ level of commitment and execution of their duties.
Answer: It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.
It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.
As an example – if the issue was getting some concreting done and the caretaking agreement required the manager to get two quotes, the manager would just need to get the two quotes and present them to the committee. The manager wouldn’t need to go as far as researching the contractor and doing a background check on them. That would be something the committee is then responsible for.
If the caretaking agreement required the manager to make a recommendation to the committee about which quote to use, then the manager would probably need to do some research so that they could back up their recommendation.
This post appears in Strata News #129.
Question: What is deemed appropriate behaviour by onsite managers? Do the duties of a Builder Manager include the enforcing of by-laws?
I was wondering if you could clarify what is deemed appropriate behaviour by onsite managers.
We have an onsite manager at our complex which is made up of 78 Units and 6 townhouses.
Our manager takes photos of anything on a veranda or in a courtyard he deems inappropriate or that he feels the Body Corporate will deem inappropriate. For example, someone once had an item on their veranda, he photographed it and then showed the evidence to the Body Corporate at a meeting. No one seemed to find it weird that he had taken a photo using his mobile phone. Even the Strata Managers who oversee the management did not speak up.
He will also text residents to advise them that their washing is visible in a courtyard, however, in all our courtyards the only way you could see into is if you’re peering from a height using binoculars.
This is unnerving given the fact there are quite a few women who live alone at our complex and a number of the properties have children or dependents residing.
Is it against the law as a manager to peer into properties to catch people out? Do these actions form part of the duties of a builder manager?
Answer: With management rights, it is sometimes feast or famine.
Complaints can be made about extremely zealous managers (as appears to be the case here), and then the next one will be about the manager completely ignoring what they have to do. Of course, a lot of managers do get it right, but then there is no cause to complain!
What I suspect is happening here is that the manager is taking an almost militant approach to managing compliance with the by-laws. There is probably a by-law saying that items shall not be stored on balconies. There is probably also a by-law saying that washing (if it is hung outside) should not be visible from the common property or other lots. These are both ‘traditional’ template by-laws that we see in many schemes.
How the manager is going about it is obviously causing concern and for me, it starts with what the manager’s agreement says about by-laws and who should actually enforce by-laws.
We first wrote about this in 2011 – Does a Resident Manager Enforce By-Laws?
In essence, the normal position will be that the manager should tell the committee about breaches of the by-laws and then it is up to the committee to do with that as it sees fit. It is not the role of the manager to call people out on their by-law breaches.
Ultimately, it should be a matter of instruction. If the committee said to the manager ‘we don’t care about washing – leave it go’, then that is the end of the story. If the manager’s conduct is intrusive, you can obviously have a direct communication about that, but the alternative is to formally write to the committee with the concerns and ask them to manage them.
Question: What qualifications form part of the duties of a building manager? Does our Building Manager need any specific qualifications like a resuscitation certificate or any OHS qualifications?
What qualifications form part of the duties of a building manager? I have read that a building manager/caretaker only needs a Reality License to hold a Building Manager position in QLD. Are there no other qualifications they need, such as OHS certification, qualified in resuscitating for the pool, plus others?
Answer: There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.
There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.
If a resident manager lets lots they do need a licence to act as a real estate agent, but that relates only to letting. And to be fair, the question does reveal some of the many misconceptions that come with management rights. A resident manager is not a pool safety official (as one example). Duties of a building manager do not extend to the supervision of people swimming in the pool. That is what by-law and parents are for!
Have a question or something to add to the article? Leave a comment below.
Read next:
- QLD: Q&A Unable to Have Parcel Delivery at My Apartments
- QLD: Bullying in Strata! Some Lot Owners are Extremely Unreasonable
Frank Higginson
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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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.
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.