QLD: Q&A Duties of a Building Manager

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These Q&As are about the duties of a building manager, the Privacy Act and disclosing information about lot owners.

Table of Contents:

• QUESTION: Does the committee have the right to arrange a quote for works without passing anything by the building manager?
• QUESTION: Our new onsite managers agreed to a caretaker work plan when buying the management rights. Would this plan now be considered part of their contract and can it be added to the caretaker duties?
• QUESTION: Our strata building has an embedded network. The building manager’s contract states he is required to read meters and issue invoice for lot use. Should this be part of the building manager’s duties?
• QUESTION: Despite it being in his agreement, our care taking manager refuses to refurbish the gardens as an ongoing maintenance project. Would the committee be within its right to have the manager perform such refurbishment?
• QUESTION: Can a Caretaker serve a lot owner with a breach of bylaws notice without the knowledge and agreement of the Body Corporate Committee?
• QUESTION: Our caretakers insist on communicating directly with owners and tenants and usually gets the message wrong. Can we put a stop to that line of communication?
• QUESTION: Are caretakers the body corporate’s employee as deemed to be a worker under the WH&S Regs?
• QUESTION: Is a strata complex of 48 units with a pool in Qld required to have an onsite caretaker?
• QUESTION: We have a Tenant in our block of units that complains to the On-site manager about other residents. What is the On-site manager’s responsibility here?
• QUESTION: If a caretaker agreement clearly specifies a particular task is to be completed by the caretaker can the Committee vary the agreement? If not, what would be the process?
• 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?

Question: Does the committee have the right to arrange a quote for works without passing anything by the building manager?

Does the committee have the right to arrange a quote for works without passing anything by the building manager? Our Committee only informs the caretaker which company is responsible for the work and when the project will start.

All the invoices about the project are directly sent to Body Corporate without any input or contact with the building manager.

Answer: The Committee is the delegated authority of the Body Corporate so if they don’t need assistance seeking a quote by all means they can get one without reference to the people they employ.

A Body Corporate engages a caretaker or body corporate manager to assist with the running of the scheme. The Committee is the delegated authority of the Body Corporate so if they don’t need assistance seeking a quote by all means they can get one without reference to the people they employ. And, if the Body Corporate engages a contractor, they can also advise the caretaker of the details of the works and ask them to make preparations accordingly. They are the owners and it’s their building so that’s their right.

That said, if a building has engaged a caretaker one of their roles would usually be to assist the committee with repair and renovation projects. If they are not doing that it implies a breakdown of the relationship between the two parties and both sides might want to consider why this is the case and how the situation can be rectified.

A caretaker shouldn’t have control over a job, but if they are doing their work properly the owners would usually be happy to receive their assistance and insight into selecting contractors, determining a scope of works and ensuring a project runs smoothly. From the Committee’s perspective they may need to consider that even if there are reasons why they may not want to work with the caretaker they will likely need some assistance from them at some point and keeping them engaged in the project to some extent may return a better result than leaving them out in the cold.

William Marquand
Tower Body Corporate
E: [email protected]
P: 07 5609 4924

This post appears in the April 2021 edition of The QLD Strata Magazine.

Question: Our new onsite managers agreed to a caretaker work plan when buying the management rights. Would this plan now be considered part of their contract and can it be added to the caretaker duties?

Our new onsite managers agreed to a caretaker work plan when buying the management rights.

The work plan covers areas such as clerical, mowing, trimming hedges and edges, cleaning driveways. This plan was developed by the new managers. Would this plan now be considered part of their contract and can it be added to the caretaker duties to be used in conjunction with current duties statement for future managers.

Answer: A fair bit hinges on what and how it was done, but usually the answer would be ‘no’.

A fair bit hinges on what and how it was done, but usually the answer would be ‘no’. It could be an interpretation of what is in the agreement, but unless it actually forms part of the agreement it probably isn’t likely to be legally enforceable as part of it. It does depend a lot on how the document was created and the framework of that discussion and the documents relating to the assignment itself.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #459.

Question: Our strata building has an embedded network. The building manager’s contract states he is required to read meters and issue invoice for lot use. Should this be part of the building manager’s duties?

Our strata building of 40 lots has an embedded network for our individual metered electricity supply. The body corporate buys our electricity at a bulk rate and is to recover the cost by billing each owner/occupier for there metered consumption.

The Building Manager’s contract states he should both read the meters and ‘charge agreed-on rates to the owners/occupiers for electricity consumed’. Claiming he was unable to issue invoices and meet the requirements for running an embedded electricity network, the Body Corporate had to engage a specialist firm to issue monthly invoices. This service is paid for by the Body Corporate and a monthly service fee is added to each invoice to recover these costs.

1. Should the cost of the issuing of invoices by the specialist firm be paid by the Building Manager as this is a duty within his agreement and is paid for completing this duty by the body corporate?

The Building Manager is also the short-term Letting Manager for the building and lets many apartments on a short-term basis. The Letting Manager is responsible for the electricity costs incurred by these apartments as part of the letting arrangement.

In the monthly disbursements he manages, the Letting Manager is paying for the electricity consumed component, however, is on-charging the individual owners for the monthly service fee of issuing the electricity invoices.

To me, this monthly service fee is part of the electricity bill. Our specialist service provider also agrees that this should be seen as part of the electricity bill in total.

2. Should the Letting Manager separate this cost from the electricity bill and on-charge the cost to the owner?

Answer: It would all come down to the interpretation of the manager’s agreement. It would be pretty uncommon for this to be the manager’s responsibility.

1. The answer to this question is not clear cut and would depend on the interpretation of the manager’s agreement.

   The supply and on-sale of electricity in community title schemes is strictly regulated, and significant penalties can be imposed if proper exemptions or authorisations are not in place. With that in mind, it is probably in the body corporate’s best interests to have the electricity services provided by a specialist.

   If the manager’s agreement requires them to arrange for these services to be provided to the body corporate, then there is certainly an argument that the manager’s agreement needs to be varied to remove those duties or that the manager should engage the specialist contractor. However, there is likely to be a clause in the manager’s agreement that makes specialist services a body corporate responsibility. So it would all come down to the interpretation of the manager’s agreement. It would be pretty uncommon for this to be the manager’s responsibility.

2. This would depend on the costs disclosed in the manager’s letting appointment with individual owners.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the February 2021 edition of The QLD Strata Magazine.

Question: Despite it being in his agreement, our care taking manager refuses to refurbish the gardens as an ongoing maintenance project. Would the committee be within its right to have the manager perform such refurbishment?

Our committee would like the manager to refurbish the gardens as an ongoing maintenance project. His claim is that this is improvement, not maintenance. The contract says to maintain the gardens to a high standard, the implication being to look after the garden bed, remove dead or spreading ground cover and add plants/shrubs as specified by the committee.

The manager has signed a “Deed of Consent” to carry out duties “expressed or implied”. Would the committee be in its right to have the manager perform such refurbishment?

Answer: Refurbishment to me is a capital item – not a maintenance one. In general terms a caretaking agreement usually only extends to maintenance obligations

Unfortunately, these things are never that simple.

Refurbishment to me is a capital item – not a maintenance one. In general terms a caretaking agreement usually only extends to maintenance obligations, but that does depend on the interpretation of the caretaking duties and any other relevant clauses in the agreement.

The other issue that will flow is that if the garden refurbishment substantially changes the nature of what the manager is obliged to do under the current agreement, then that opens the door to arguments about what the manager is obliged to do with respect to the new areas.

This argument comes up more with refurbishments of common property. Take a foyer as an example. If the management rights agreement refers to vacuuming carpet, and then the refurbishment changes the foyer to tiles, what happens then? You need to look at that same issue with respect to your proposed garden works.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #432.

Question: Can a Caretaker serve a lot owner with a breach of bylaws notice without the knowledge and agreement of the Body Corporate Committee? 

Answer: If it is a formal notification of breach of by-laws on behalf of the body corporate- no.

My question would be ‘breach for what?’

If it is a breach of the by-laws because the occupant is a tenant in the managers letting pool and they have instructions to do that on behalf of the owner – yes

If it is a formal notification of breach of by-laws on behalf of the body corporate- no. Only the committee can enforce by-laws, but managers can certainly draw an occupants attention to the breach of them – like a committee member could do.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Our caretakers insist on communicating directly with owners and tenants and usually gets the message wrong. Can we put a stop to that line of communication?

We have non-resident caretakers. They insist on communicating directly with owners and tenants and usually get the message wrong. This has caused some embarrassment in the past, particularly in relation to quotes for contracting work. 

They also keep emailing lot owners about very minor maintenance/repair issues that don’t require reporting. My understanding is that the Body Corporate is responsible for communicating with owners and the Caretaker are only is obliged to report to the Body Corporate Committee.

Can we stop the caretaker from communicating with the residents. We don’t want owners to be hassled and they are better informed by the Body Corporate Committee.

Answer: No one can demand that people stop speaking to each other.

No one can demand that people stop speaking to each other, and this to me looks like someone wanting to help but doing it in a clumsy manner.

A better approach may be a gentle sit down, talking about some clear lines of communication in terms of who will say what to who and when, and more importantly, who won’t. The idea would then to be to follow that up with an email setting that agreement out and then gently prodding people back into line if they get out of shape.

Hopefully that solves it.

But there is no way to direct people not to talk to others (as opposed to instruct them on work to be done for the body corporate – for example – which is possible)

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in the November 2020 edition of The QLD Strata Magazine.

Question: Our caretaker charged a business lot owner an after hours call out fee to reset a tripped power main switchboard? Is this reasonable?

Answer: I don’t believe it is unreasonable for a Caretaker to charge a fee for being called out after hours to carry out duties that are not included in the care taking agreement.

I don’t believe it is unreasonable for a Caretaker to charge a fee for being called out after hours to carry out duties that are not included in the care taking agreement (assuming that this is not included). However, the Caretaker should make it clear that there will be a charge and how much it is at the time of being called out.

William Marquand
Tower Body Corporate
P: 07 5609 4924
E: [email protected]

This post appears in Strata News #425.

Question: Are caretakers the body corporate’s employee as deemed to be a worker under the WH&S Regs?

A QLD Strata under the Work Health and Safety Regulations 2011 defines in (7) – a strata title body corporate is not a person conducting a business (PCBU) – unless the body corporate engages any worker as an employee.

Our body corporate has engaged caretakers under contractual agreements as a contractor. It appears that the caretakers are full-time resident managers paid by the body corporate.

The question is: would this mean that the caretakers are the body corporate’s employee as deemed to be a worker under the WH&S Regs (s) 7 s2 and WH&S Act 2011 (s) 7 defines a worker which includes – ‘a contractor or subcontractor’? The building managers are engaging subcontractor to conduct works on common property.

The WH&S Reg 2011 (s) 7 s2 has a proviso and it seems we have defaulted into a PCBU through engagement of a contractor and in turn engaging subcontractors in business activities on common property on behalf of the strata.

Answer: The first consideration is that the definition of a “worker” for workplace health and safety legislation is different to the meaning of “worker” for industrial relations legislation.

The first consideration is that the definition of a “worker” for workplace health and safety legislation is different to the meaning of “worker” for industrial relations legislation.

In the context of workplace health and safety legislation, there are mixed views as to whether the existence of a worker on the common property triggers the body corporate being a PCBU. At one point even the Government’s workplace health and safety website said it doesn’t apply to bodies corporate. However, despite this, the generally accepted position among most lawyers in the industry is that the body corporate is a PCBU in circumstances where it has a letting agent and as a result has workplace health and safety obligations, along with the manager.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #422.

Question: Is a strata complex of 48 units with a pool in Qld required to have an onsite caretaker?

Answer: There is no requirement for any scheme to have an onsite manager irrespective of its size and facilities.

There is no requirement for any scheme to have an onsite manager irrespective of its size and facilities.

However, if there is an existing contract in place, that contract still needs to be honoured. For larger schemes though, often the management rights model is the most suitable to ensure an onsite presence for the variety of issues that come up from time to time.

Todd Garsden
Mahoneys
E: [email protected]
P: 07 3007 3753

This post appears in Strata News #408.

Question: We have a Tenant in our block of units that complains to the On-site manager about other residents. What is the On-site manager’s responsibility here?

We have a resident (tenant not owner) in our block of units that is always complaining to the On-site manager about other residents (both resident owners & Tenants).

What is the On-site manager’s responsibility here? 

Can they speak to the residents about the perceived issues or must these complaints (both specious and spurious) be referred to the Body Corporate Committee for their action? 

The tenant has already been reported to the Police for assaulting the Management rights owner. The owner of the Unit appears reluctant to do anything about the tenant.

Answer: Dealing with difficult residents is probably outside the scope of responsibilities of the caretaker

Dealing with difficult residents is probably outside the scope of responsibilities of the caretaker – save where there is an obvious breach of the by-laws regarding parking, noise and the like.

The better course of action in these matters is to report them to the Body Corporate Committee. They are the elected representatives of the owners and can, if necessary, obtain legal advice on the options open to the body corporate.

Tammy Lynch
Tower Body Corporate
P: 07 5609 4924
E: [email protected]

This post appears in Strata News #401.

Question: If a caretaker agreement clearly specifies a particular task is to be completed by the caretaker can the Committee vary the agreement? If not, what would be the process?

If a caretaker agreement clearly specifies a particular task is to be completed by the caretaker “three times a week or as required”, can the Committee itself vary the agreement for any period and direct the caretaker to undertake the task less frequently than specified in the agreement?

If not, what is the correct process for any tasks specified in the caretaker agreement to be varied in their frequency by either caretaker and/or body corporate?

Answer: The only way any management rights agreement can be varied is by ordinary resolution at general meeting.

The only way any management rights agreement can be varied is by ordinary resolution at general meeting. What I would say is ‘three times a week or as required’ is a bit nebulous. Is the duty to be performed three times a week, or only as required? Say it relates to emptying bins. If there is no rubbish in there during the entire week, was anything actually required? In that instance, when it comes down to a question of the interpretation, I think the committee and caretaker could agree together what they think it means.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

This post appears in Strata News #383.

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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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 …

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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.

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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!

Frank Higginson
Hynes Legal
E: [email protected]
P: 07 3193 0500

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