While the management rights agreement outlines the specific caretaker duties, it is crucial to clearly define the scope of their general involvement in body corporate affairs.

What is the extent of a service contractor’s authority in body corporate matters beyond their defined duties? Do service contractors have the authority to determine body corporate policies or procedures?

Our caretaker is exceeding their defined role, seemingly attempting to manage the resort instead of operating as contracted support staff. They run the resort as their fiefdom. As a paid contractor (’employed help’), the service contractors may have input into discussions during committee meetings. Does this extend to the power to establish body corporate policy and procedures?

Although issuing breach notices is a potential course of action, the underlying issue seems to be a lack of understanding by the service contractor regarding the limitations of their role.

To help alleviate conflict, are there legal or industry guidelines that define the limited involvement of service contractors in setting body corporate policy and procedures?

Answer: The key is finding a solution that minimises time, cost and emotional toil.

Respectfully, we don’t think you are on the right track here.

When it comes to ‘policies and procedures’, there are two instruments defining that: the management agreement, and the legislation. There is next to no scope for any other party, committee included, to be setting ‘policies and procedures’ outside of that framework.

A service contractor is not a paid employee. They are engaged under contract, which is a very different thing. Referring to them as ’employed help’ is, we think, derogatory and does not help the situation. Nor does describing it as a ‘fiefdom’. Also, it is more than simply ‘having input’ into a committee meeting. The management rights holder is automatically, under legislation, a non-voting committee member.

Purchasing management rights in a strata scheme is a significant investment of funds, time and emotional commitment on the part of the purchaser, and it stands to reason that they would want to do everything they can to protect and enhance that investment. In that respect, they are virtually identical to a lot owner.

There is no standard contract, and we do agree that disputes arise between committees and service contractors over performance of duties. Then again, disputes arise in just about every walk of life and sector of industry, so this is not so unusual. The key is finding a solution for all concerned that minimises time, cost and emotional toil so that these disputes can be managed and even prevented in future.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the June 2025 edition of The QLD Strata Magazine.

Question: Due to Cyclone Alfred, our holiday letting resort will be closed for up to nine months. Are we required to continue to pay the monthly caretaker fees?

Due to flood damage from Ex-Tropical Cyclone Alfred, our holiday letting resort will be closed for up to nine months, and all 36 villas will be vacant. Our onsite contract caretakers have been relocated and have no letting or caretaking duties. Are we required to continue to pay the monthly caretaker fees in this situation?

Answer: It is possible that payment could be withheld, however that would depend on the terms of the specific agreement.

While it’s understandable to feel frustrated when paying caretaker fees and no work is done, a body corporate is generally required to continue paying the caretaker’s remuneration. It is important to note that payment would be in reference to the caretaking duties, not the letting duties.

It is possible that payment could be withheld, however, that would depend on the terms of the specific agreement. Non-payment can lead to legal repercussions, so it is important to obtain legal advice tailored to your specific agreement. An owner may have separate rights against the letting agent under the terms of appointment between that owner and the letting agent.

Brendan Pitman
Grace Lawyers
E: [email protected]
P: 07 5554 8560

This post appears in the May 2025 edition of The QLD Strata Magazine.

Question: Should the caretaker use the resort pool during their designated working hours?

Is there an industry “standard” for a service contractor using the resort pool during their designated working hours? It is accepted that given the QLD heat, the on-site manager may wish to vary their hours to those specified in the agreement. That, in turn, may benefit both themselves and owners. However, it is hardly professional to have guests/people making enquiries faced by somebody in swimming attire who has left the pool to answer their enquiry. Can a committee set ground rules? On the one hand, the on-site manager is an owner by the management rights agreement, but there are wider implications.

Answer: There is no standard when it comes to MR agreements.

This is an intriguing query.

I take your point about ‘professionalism’, although I would counter that by saying that I think there would be some guests who would find it quite ‘authentic’ to encounter the management rights (MR) holder in this way. For example, it may signal that the MR holder is an avid proponent of the scheme and its facilities, which could be a useful marketing tool. That may of course be subject to the type of swimming attire they are wearing…

Putting that to one side for a moment, the reality is that there is no standard when it comes to MR agreements. They can vary greatly in scope and terms. If your agreement does not address this or any other specific MR situation, then it remains open to negotiation between the parties on how to address it. That said, if the parties cannot come to a resolution about the situation, and noting there is no scope to unilaterally change the terms of the MR agreement (it’s a contract, after all), then the only option left is the dispute resolution proceedings provided for under the Body Corporate and Community Management Act 1997 and in the MR agreement itself. To put it bluntly, you really don’t want to go down that path if you can help it – the time, cost and emotional toil involved is astronomical.

And yes, as you correctly note, the MR holder is often a lot owner, with the attendant rights that go with that (which in this case, mean access to and enjoyment of common property facilities). This is a point that sometimes gets lost in these types of discussions, so it is good you are cognisant of it.

Reading between the lines of your query, I suspect there are probably further concerns about the MR holder that you and the committee might hold. That of itself is neither uncommon nor surprising: it happens. It’s how you approach it from here that is vital. Strata Solve does a lot of work in this space, and you may (or may not) be surprised at how often communication and interpersonal relationships are at the heart of the issue and solution. Feel free to get in touch to find out more.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the March 2025 edition of The QLD Strata Magazine.

Question: Our caretaker uses our building’s mower and whipper snipper weekly to conduct gardening work at other properties. Is this a breach of his contract? What can we do about this?

Answer: It all hinges on their contract.

It all hinges on the contract they have regarding who supplies the equipment and whether there are restrictions on its use – whether stated or implied.

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

This post appears in Strata News #733.

Question: Should the building manager report breaches of by-laws to the committee? In our building, there are members of the committee who commit breaches. How can we deal with those?

Answer: Your building manager should only do what their contract requires.

Your building manager (aka, caretaker, or onsite manager – the technical term is ‘caretaking service contractor’) should only do what their contract requires. There is no standard contract for caretaking duties in Queensland, so it can and does vary from building to building.

I know from experience it is commonplace for there to be arrangements about what the caretaking service contractor does in relation to by-laws. It really does depend on how this is represented in the contract: perhaps it is a requirement to ‘report’, or it could be to ‘work with the committee’, or it could be to ‘assist’. The bottom line, though, is this: none of those contractual arrangements changes the fact it is the committee’s responsibility to enforce by-laws and nor does it change the fact that an individual (which can mean an owner or an occupier, aka, tenant) can have by-laws enforced.

I think your best bet is to look at this excellent by-law enforcement flowchart: By-law enforcement applications, prepared by the Commissioner’s Office. It answers your question about how by-laws can get enforced against committee members, as I assume from your query that the committee members are not enforcing by-laws when it is in relation to them.

This is general information only and not legal advice.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in the March 2024 edition of The QLD Strata Magazine.

Question: As a caretaker, can the committee dictate what hours I work?

I am a caretaker. Can the committee dictate what hours I work?

I currently clean from 5 am to 7 am. The pool and BBQ areas are open to occupiers from 7 am to 10 pm. So, I do all the work I can outside those hours to better manage my workplace health and safety obligations.

My work does not disturb anyone or create noise or security issues.

The committee sent me an email stating, “Effective immediately: you are not allowed to work inside the estate before 7 am and after 5 pm.

The contract contains no clause dictating when I can and can’t work.

Answer: The simple answer to this is ‘no’ subject to the terms of the agreement.

The simple answer to this is ‘no’ subject to the terms of the agreement. A caretaker’s hours are governed by the agreement with the body corporate. If that doesn’t dictate hours, then the roles required by the agreement need to be performed at times that the caretaker decides, with the caveat that (say) pressure washing footpaths at 1 am wouldn’t be sensible.

Most caretaking agreements do allow a body corporate to provide reasonable directions about the duties, but off the cuff I don’t see that it would be a reasonable direction to start your job at 7 am when it could be started at 5 am and not interrupt residents, especially in the summer heat!

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

This post appears in Strata News #678.

Question: Our caretaker has requested written confirmation that they are volunteering when performing extra duties not covered by their agreement. Will this cover them as a volunteer under the OC’s insurance?

Our onsite caretaker, who has a signed caretaker agreement with the owners corporation, sometimes performs additional tasks not specified in the agreement. They have requested written confirmation from the owners corporation stating they are volunteering for these extra duties. Will this provide the caretaker with coverage as a volunteer under the owners corporation’s insurance policy?

Answer: There is a strong possibility the insurer would scrutinise the role of the caretaker in line with the contract for services they provide.

The caretaker would have to meet the definition of a volunteer under the policy conditions.

There is a strong possibility the insurer would scrutinise the role of the caretaker in line with the contract for services they provide.

If I was the caretaker, I wouldn’t rely on the strata policy for cover. I would maintain a public liability policy to ensure there is adequate cover in the event of a claim.

Tyrone Shandiman
Strata Insurance Solutions
E: [email protected]
P: 1300 554 165

This information is of a general nature only and neither represents nor is intended to be personal advice on any particular matter. Shandit Pty Ltd T/as Strata Insurance Solutions strongly suggests that no person should act specifically on the basis of the information in this document, but should obtain appropriate professional advice based on their own personal circumstances. Shandit Pty Ltd T/As Strata Insurance Solutions is a Corporate Authorised Representative (No. 404246) of Insurance Advisenent Australia AFSL No 240549, ABN 15 003 886 687.

This post appears in Strata News #670.

Question: Our body corporate would like to conduct a time and motion study on the caretaker. As they are within the contract term and the agreement does not specify hours worked, is the caretaker bound to contribute to the investigation or any findings?

Our caretaker’s agreement was established and agreed upon 10 years ago by the previous caretaker and the body corporate. The agreement contains no specified office or working hours, and the remuneration appears to be increasing and becoming the most significant 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 duties. However, the caretaker is fulfilling their responsibilities per the contractual agreement. The performance may not be exceptional, but it meets the requirements outlined 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 specialises in contract review or time and motion studies.

Does the caretaker have an obligation to answer all questions from the expert regarding questions about his time allocation for work, etc? Could the caretaker refuse to share his work records, given that there is no contractual obligation to do so? If the caretaker does not agree to any changes, then regardless of the results of any study, can the contract be altered?

Answer: There is no obligation on anyone to agree to do something outside of the managing agency agreement.

The starting point for this is that 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.

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

This post appears in Strata News #660.

Question: Our caretaker/letting agreement makes no specific reference to a substitute manager being appointed while our contracted manager takes annual leave or is off sick. Does a proposed substitute’s appointment require body corporate approval?

Answer: If the agreement is silent, the caretaker can likely install any employees or contractors to perform the work without the need for body corporate approval.

The answer to the question will depend on the balance terms of the caretaking agreement. There may be a clause that provides that any persons who perform the duties require the approval of the body corporate (or there is no need for approval).

If the agreement is silent, the caretaker can likely install any employees or contractors to perform the work without the need for body corporate approval. It might be worthwhile having the agreement reviewed in its entirely though to confirm.

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

This post appears in Strata News #657.

Question: If the body corporate requests the caretaker gather and maintain the owner roll, are they within their rights to refuse?

The 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 gather and maintain the owner roll, would this constitute a conflict with the caretaker agreement and the BCCM Act? Is the caretaker obliged to undertake administrative tasks such as maintaining the strata roll. Are they within their rights to refuse?

Answer: The management of the body corporate roll is definitely a task for a body corporate manager – not the caretaker.

To me, the management of the body corporate roll is definitely a task for a body corporate manager – not the caretaker. The roll is a body corporate record capable of being accessed like any other body corporate record (like emails, letters, minutes etc) and should be an administrative task.

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

This post appears in the July 2023 edition of The QLD Strata Magazine.

Question: Our onsite resident managers don’t provide any cleaning of the gym equipment. Do rules for the cleaning of gym equipment come under health and safety? The complex consists of 196 units.

Answer: Is cleaning gym equipment the responsibility of your scheme’s onsite managers? That depends on the contract’s terms.

The body corporate has a responsibility to maintain the common property. If you have gym equipment that would extend to keeping it clean.

Is this the responsibility of your scheme’s onsite managers? That depends on the terms of your contract with them. If cleaning the equipment is listed in the scope of works, they should be doing it. If not, perhaps it is a body corporate responsibility although you may also consider general cleaning clauses and how they apply.

For their part, the managers might say that cleaning gym equipment requires extra equipment/time as the cleaning required is different from, say, vacuuming a hallway. There may be an additional cost for this.

To get a copy of your contract with the caretaker, contact your body corporate manager. They should have one on file. They should also be able to review the relevant clause and give you their opinion on the matter.

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

This post appears in the February 2023 edition of The QLD Strata Magazine.

Question: Can an Onsite Manager evict a short term let guest? Can a Body Corporate evict a guest?

Answer: Possibly, and no, respectively.

The short answers are possibly, and no, respectively.

The longer answers: if the onsite manager is also the letting agent for the lot, then they may have capacity to take that kind of action against their guest, as they are the ones with the direct relationship with the short-term occupier and signed them up to be staying there. An onsite manager does not have eviction powers on behalf of the body corporate or another owner.

Bodies corporate have no powers of eviction per se. The body corporate (e.g., a committee rep) is able to liaise with Police, if it gets to that point, in relation to occupiers.

Your issue appears to be one of disturbances in relation to short-term letting. Your best first step, in my view, is to engage with the owner of the lot from which the disturbances are usually occurring. Issues around short-term letting in strata are being looked at in Queensland by government, although I don’t have any details on what might result, or when.

Chris Irons
Strata Solve
E: [email protected]
P: 0419 805 898

This post appears in Strata News #623.

Question: What are the requirements for the caretaker to clean and maintain the pool?

I live in a complex which has a large swimming pool that is available to 95 residents and their families. It is the caretaker’s job to clean the pool. A pool service is conducted by an external contractor once a week to check the chemicals etc.

Should the filter basket be checked by the caretaker on a daily basis and the pool be checked for items like dead rats?

Should the caretakers be required to sign a schedule on a daily basis to confirm the pool has been cleaned and checked?

if so, should the schedule be readily available for residents to check?

Answer: This will depend on the precise wording and duties set out in the caretaking agreement.

The answers to these queries will depend on the precise wording and duties set out in the caretaking agreement.

If I were to guess, I suspect the answers would be yes, no and no. However, the actual answer would require a review of the full agreement.

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

This post appears in Strata News #612.

Question: The on-site management rights are being sold. If the new caretaker outsources the work to contractors, is the new caretaker responsible if those contractors don’t keep the complex up to a satisfactory standard?

The on-site management rights are being sold and the new manager may very well outsource the work to contractors to do the cleaning, mowing, pool maintenance, grounds upkeep etc for the complex. If this is the case, is the new caretaker responsible if those contractors don’t keep the complex up to a satisfactory standard?

Answer: In almost all cases, yes.

In almost all cases, yes. The manager who has contracted with the body corporate to have the certain tasks performed is still primarily responsible for those duties being performed even if they are subcontracted out to a third party.

In most cases the agreement will also expressly provide for this position. There may also be an obligation on the manager to obtain the approval of the committee for any subcontractors but ultimately this will depend on the precise terms of the management rights agreement.

I would suggest that if this takes place the committee reviews the management rights agreement which will govern this situation.

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

This post appears in Strata News #612.

Question: Our caretaker’s agreement mentions the responsibility for mowing ‘verges’ but does this also mean common area? The wording is causing a few headaches. How do we resolve this?

Our Caretaker’s contract was written back in 2010 and the wording is causing a few headaches. The word ‘verges’ is causing the biggest problem.

We have quite a few verges in our complex and we have a grassed common area around our swimming pool but people are mixing the use of the words verges and common area as meaning the same.

The caretaker is responsible for mowing verges but are they responsible for mowing the common area. Can you shed any light on this, please?

Answer: There is no such thing as a standard management rights agreement so each one needs to be read in detail.

Can I respectfully suggest that there will be far more to the interpretation of this than the words. There are inevitably going to be other clauses, definitions or references in the agreement that will colour what the obligations are. There is no such thing as a standard management rights agreement so each one needs to be read in detail to confirm the position on issues like these. And you can sometimes expect there to be inconsistencies!

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

This post appears in the October 2022 edition of The QLD Strata Magazine.

Question: Our caretaker’s spend allowance has been increased from $500 to $1000 per item. Is the arrangement usual, and if so, how do we best control spending?

Our caretaker contract contains a spend allowance:

The Manager shall be entitled to pledge the credit of the Owner and incur an expense on behalf of the Owner in respect of any individual transaction for any amount not exceeding five hundred dollars ($500) OR such amount as the Committee of the Owner* may from time to time authorise in writing PROVIDED THAT such credit is pledged or expense is incurred for the purpose of obtaining goods or services used in the performance of the duties of the Manager pursuant hereto (except any duties of the Manager pursuant to clause 4) of the employees of the Owner or for such other purposes as are necessary or incidental thereto. Any such expense shall be paid by the Owner or if paid by the Manager shall be reimbursed by the Owner to the Manager.

The committee has formally resolved to increase the amount from $500 to $1,000 per item.

It is not limited to isolated incidentals. There is no limit regarding an accumulated amount, or how many items at any time, or how often, or frequency eg per week, per month etc. Essentially, it is an open operating account at the Caretaker’s discretion.

The first thing the Committee hears about it is after the work has been done or the item has been purchased, and the bill is presented to the Committee for approval and payment.

In 2020/21, Caretaker spent approximately $40,000 on items < $500 without pre-approval, and, with pre-approval per item, $47,000 on items >$500.

Doesn’t seem right to me.

Is this open $500+ allowance legal in QLD?

Can the BC override the Committee decision eg by ordinary resolution at an AGM?

Answer: Such a clause is a very common (and important) clause that appears in most management rights agreements.

Such a clause is a very common (and important) clause that appears in most management rights agreements. It allows the caretaking functions of the scheme to progress without (generally) unnecessary administrative requirements.

It is important to recognise that there are a number of obligations in the caretaker spending body corporate funds in that it must be for an expense the body corporate is responsible for. It is not an open cheque book.

Regardless, it is the body corporate’s funds and the committee can exercise more control over the spending of those funds if that is what the committee is more comfortable with. The committee may be able to give a direction (pursuant to another clause in the agreement) to ensure that any such expenses are first run past the committee for approval. The downside to this approach is that it may slow down the performance of duties if the caretaker then needs to wait for the committee to provide some level of approval.

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

This post appears in the September 2022 edition of The QLD Strata Magazine.

Question: Our resident manager isn’t doing his job. What is classed as a breach of contract? Can we terminate his contract?

Our resident manager isn’t doing his job. He’s not repairing urgent issues eg we were given a defect notice 30 days ago for fire-stair lighting not working and this hasn’t been fixed. Also, he isn’t producing correct invoices for payments from appropriate works companies etc.

What is classed as a breach of contract? How and where we can get his contract terminated?

Answer: Read the caretaking agreement and understand what the caretaker’s duties are.

A caretaker’s role extends to whatever their caretaking agreement says it does. The starting point with any issue of this nature is to read the caretaking agreement and understand what the duties extend. What I would say is that a caretaker’s role would rarely extend to fixing fire stair lighting – as opposed to procuring the right person to do so. And that is then subject to instructions of the committee and finding a contractor to do it.

With respect to invoices, if it is the body corporate’s money that is being spent, it is simple. The body corporate is entitled to determine how its money is spent and accounted for. That would also normally be part of the contract.

Termination is a very rocky road. There are easier ways to deal with these issues than heading straight down that lawyer friendly path.

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

This post appears in Strata News #592.

Question: As part of his duties, is the caretaker required to let lot owners into the building if they lock themselves out?

My wife locked herself out of our apartment and asked the Building Manager to let her in. He refused, saying it’s not part of his agreement and he suggested she call a locksmith.

I haven’t seen his agreement so I don’t know for sure, but he has let others in previously, including myself.

Whose responsibility is it to let owners into their apartments when they have locked themselves out?

Answer: In the absence of some contractual obligation it is for the lot owner to find a way back into their lot.

It is a very rare caretaking agreement that obliges a caretaker to provide services to individual owners – like this. Many would. Some don’t – for any number of reasons, but usually there is a bit of a relationship issue at the core of it – either with the body corporate or the owner concerned. In the absence of some contractual obligation it is for the lot owner to find a way back into their lot – the same as it would be for me if I locked myself out of my house.

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

This post appears in Strata News #566.

Question: As building managers, should we be reimbursed for items needed to complete works required under the caretaking agreement?

We are the building managers of a unit complex. There is a requirement for us to purchase goods and services to complete works required under the caretaking agreement. Our body corp does not supply all items.

When we seek reimbursement for these items, the strata manager advises ‘Your management agreement pays you remuneration for a supply of service which is inclusive of GST.’ So essentially they are saying that our management agreement payment covers the costs of all goods/services we purchase for the management of the building. Is this correct?

Answer: What does the management / caretaking agreement say?

This whole thing hinges on what the management / caretaking agreement says. The usual position is that the body corporate bears the costs of consumables (i.e. fuel, fertiliser, etc) and then equipment is sometimes borne by the caretaker and sometimes by the body corporate.

The other issue that often comes up is when a caretaker engages someone to do a job and there can be confusion about whether the caretaker or body corporate bears the cost of that. That then turns on what actual duties the caretaker must perform. If a caretaker engages someone to do a job their agreement says they must perform, then it is at the caretaker’s cost. Otherwise, it should be the body corporate’s cost but ideally, after the body corporate knows that is the case. This is quite often then coloured by whether the job is a ‘skilled trade’ which might be something a body corporate has to bear.

Each contract is different. The answer to the question will more than likely rest with interpreting all of the above.

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

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

Question: Our onsite manager has been successful with a motion to reduce the number of operating hours. Many are not happy with the new performance of duties. What can we now do?

Our Last AGM, the onsite manager put forward a motion to reduce the operating hours of the office by 12 hours a week. She then contacted all the owners who do not live on-site and told them the same amount of work would get done.

The motion passed which means she now does 12 fewer hours a week, whilst still earning the same wage. Is this change valid once the motion has been passed at the AGM? Many on the Committee express they are not happy with the performance. The gardens are now unkept and the office is inaccessible.

Answer: There may be some specific terms in the contract with the caretaker that could be affected by this change and you would need to review that document to confirm. It may be appropriate to engage a body corporate lawyer to do this.

Generally, if the body corporate wants to agree to amend a contract with a caretaking service contractor the way they would do this is via an ordinary resolution at a general meeting. That sounds like what has happened here, so while you may be unhappy with the outcome it doesn’t mean it is invalid.

Still, there may be some specific terms in the contract with the caretaker that could affect this and you would need to review that document to confirm. It may be appropriate to engage a body corporate lawyer to do this.

You may also want to review that contract to check on the scope of works. If you felt the contractor was in breach of these by not maintaining the grounds you can go down the avenue of issuing breach notices. It’s not a perfect solution but is the next legal step.

And, as a Committee, you may want to consider how you communicate with the other members of the body corporate if you want your side of the story to be told. The caretaker of your site has a right to communicate to owners, but so does the Committee. You might want to start communicating to all owners about the running of your building and how the caretaker affects that. Perhaps send out a newsletter or build a website. Maybe conduct a survey of owners to see what they think. See if you can get a wider conversation going about how the building is operating. It takes a bit of time and effort, but if you want things to change you need to engage as many people as possible.

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

This post appears in Strata News #538.

Question: A caretaker contract with a vague scope of works may lead to disputes over the quality of work being done. When approaching this, what is a good response if the caretaker says ‘that’s not in my contract’?

Many caretaker contracts have a vague scope of works. They may say the driveway should be cleaned once a week but there is no reference to the standard. This can lead to disputes over the quality of work being done. How should Committees approach conversations like this with caretakers? What is a good response if the caretaker says ‘that’s not in my contract’?

Answer: Consider engaging an independent management rights expert to do a common property condition report.

This is a great question and one that we find a lot of because the common themes that we see in caretaking agreements is that the older the agreement, the more vague, the more broad and ambiguous the terms or the duties are. The more modern agreements have what we call a specified duties list and that specified duties list really does give the prerequisite particularisation, but also, frequencies built in there.

To answer the question, ‘How can a committee approach these type of conversations?’, it will depend on whether they’ve been approached previously with the caretaker. If they had been approached and the caretaker has essentially responded with ‘That’s not included in my contract. I’m not going to be doing that’, then the next step for the committee to consider would be to get an independent management rights expert in to the scheme and to do what’s called a common property condition report. I think it’s safe to say that most committee members would not have the prerequisite skill and knowledge that a management rights expert would have.

The difficulty we see is that there is always this argument of nitpicking. The caretaker says ‘The committee’s nitpicking. They’re being subjective in how they’re scrutinising our performance’, and then the committee says ‘No, we just want it to be of the standard that we expect’. So having a management rights expert come in and do a common property condition report. It takes away that subjectivity.

It takes away that argument of nitpicking in the committee can say ‘Okay, so it’s not us that is scrutinising you. We’ve got somebody independent in. This has been the report about the standard of this scheme and the condition of the common property, can we table it and have a discussion with you about how we can go about fixing this? There are two very different interpretations of your duties, and unless we work together to resolve them, we’re going to continue to have these arguments about what you are or are not required to do’.

Now, depending on how those discussions go; If they go poorly, the committee might need to consider issuing a remedial action notice, but if they go well, the committee might engage in some private negotiations with the caretaker to say, ‘Okay, let’s tidy this up. We don’t agree. Let’s get a specific schedule of duties prepared by an expert that ultimately says what you’re required to do with a good satisfactory level of particularisation and the frequency in which you’re required to do it. And let’s do a deed of variation and put it to owners so that we can resolve this moving forward’. That, to me, would be a pragmatic commercial outcome for both parties. It’s all about how you communicate it and it’s all about making sure that what starts as a performance based issue doesn’t escalate into a personality based issue because of poor communication there as well.

That’s probably how I would deal with it first and foremost. Obviously, my opinion with specific schedules of duties is that they work for both sides. The caretaker knows what he/she/it is required to do and the committee knows what is required. Then there is an ability to tick check things off and not have different interpretations of things as well.

Jessica Cannon
Cannon + Co Law
E: [email protected]
P: 07 5554 8560

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

Question: The new caretaker sold the body corporate’s box trailer and pocketed the money. Can we invoice them the cost of a replacement trailer?

A new caretaker has just started at our complex. Without permission, they sold the body corporate’s box trailer that was located on common property and pocketed the money. Can they do this?

If not, can the Body Corporate Committee invoice the Caretaker for the replacement cost of the box trailer?

Answer: The caretaker may be under the (mistaken) assumption that it was theirs to begin with.

No – they can’t.

But the difference between the caretaker doing it and a lot owner is the caretaker may be under the (mistaken) assumption that it was theirs to begin with because it may have been mentioned on the inventory to the management rights contract when they bought – by mistake or otherwise, it is very common for the management entity to supply caretaking equipment like this, so it is not unnatural for a caretaker to think it might be theirs to sell.

So I think the best way to approach it is to:-

Review the caretaking agreement to see who supplies equipment

If the body corporate bought it, get a copy of the evidence of that (because bodies corporate sometimes make the same mistake the caretaker has been accused of here)

Raise the issue with the caretaker to have a chat about it

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

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

Question: Is the building manager able to issue fines for by-law breaches?

My building manager is issuing fines on behalf of the body corporate for breaches of certain by-laws. Is this allowed? Normally you would have to receive contravention notices prior to this.

We have these two clauses in the by-laws I have found relating to this:

33.4 For the avoidance of doubt, the body corporate may recover its costs in respect of that breach in accordance with these by-laws and under the BCCM Act.

35.1 If an occupier or invitee commits a breach, the owner of the relevant lot must pay on demand the whole of the body corporate’s cost in respect of that breach, which amount will be deemed to be a liquidated debt.

Answer: The building manager has no ability to impose fines (and nor does the body corporate).

Todd Garsden, Mahoneys

The building manager has no ability to impose fines (and nor does the body corporate). Only the Magistrate’s Court can impose fines for by-law contraventions and that is relatively rare.

Separately, both of those by-laws are invalid as they are contrary to section 180 of the BCCMA.

William Marquand, Tower Body Corporate

The frustration for body corporate owners is that the means of effectively enforcing by-laws are so convoluted that it is easier to get away with breaking the by-laws than prosecuting them.

In this instance the caretaker doesn’t have the authority to issue fines and the body corporate should adhere to that. If the practice continues then owners may challenge the outcome and the body corporate be held liable. Perhaps some alternative creative thinking is required to encourage greater adherence. You could try some public naming and shaming – sending out a notice to owners of what by-laws are being broken and by whom.

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

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

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

Question: Our caretaker has “commandeered” our garden shed as his recreation space. Our bylaws clearly state that the shed is for storage only. Surely the Committee need to enforce this?

Our caretaker has “commandeered” our body corporate garden tool/material store shed as his own, using it as a workshop/retreat and socialising area day and night.

This is annoying neighbours in the vicinity. The matter has been the subject of a BCCM conciliation hearing who set out specific conditions, use, times etc. These have been ignored by the caretaker and the committee. The committee claims that according to our local council regulations no restrictions apply regarding hours of use etc.

Our bylaws clearly state that the shed is for storage only.

Surely this has nothing to do with the council and is the responsibility of the committee to police?

Answer: A caretaker can only use common property for purposes related to caretaking if those rights are granted by way of an occupation authority.

Yes – this is not a council matter but an issue for the body corporate.

A caretaker can only use common property for purposes related to caretaking if those rights are granted by way of an occupation authority. This is because the regulation module provides:

A service contractor or letting agent may acquire rights to occupy part of the common property for the purpose of the service contractor’s engagement or letting agent’s authorisation, only under this section.

If the use is not for caretaking purposes, there is no ability to exclusively use the area.

To approve an occupation authority an ordinary resolution at general meeting is required. Accordingly, to resolve the issue, the committee would need endorsement at general meeting.

Importantly, an occupation authority can:

only be given if the use does not unreasonably interfere with the use and enjoyment of a lot or the common property; and

if it is given, can be done on any reasonable conditions.

Accordingly, it is immaterial what the by-laws provide for (unless it is an exclusive use by-laws that was imposed prior to the commencement of this section dealing with occupation authorities).

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

This post appears in Strata News #507.

Question: Neglect of a garden on top of the carpark has been blamed on the caretaker’s lack of maintenance. Could this be correct?

Our 4 y.o. complex incorporates an elevated garden on top of part of an outdoor carpark.

Our Caretaking Agreement that is with, and was written by the developer specifies monthly maintenance and clearing of all garden drainage.

This has never been carried out by the Caretaker or his contractor with the result the garden is now completely dysfunctional. After heavy rain, it is a lagoon, that then drys to a bog. It has sprung numerous leaks now onto the carpark below. It has also become a perfect mosquito breeding ground to the detriment of the hundreds of surrounding apartments.

The Committee believes that this is a straight-forward case of neglect of duties by the Caretaker and a breach of the agreement, which can only be rectified by the Caretaker assuming responsibility and proceeding with rectification, replacement or repair – as required – to restore the garden to its original functioning condition.

Is this assumption by the Committee likely to be correct?

Answer: I think the starting point is what the caretaking agreement says.

This is an interesting one. I think the starting point is what the caretaking agreement says. These things can be open to interpretation.

After that, it all then ‘depends’ and the issue I would raise is this obviously hasn’t happened overnight. It has taken 4 (?) years to manifest itself. The consequences of the failure to perform the alleged work would seemingly have been obvious some time ago. On the body corporate side of things – what happened? Was no one looking at the duties or their performance of them? Leaks into car parks take some time to appear. Did they get ignored for an extended period? Did the caretaker suggest to the committee two years ago there might have been an issue and was told to ignore it? Those things happen.

I raise that in the context of mitigation. If there was an opportunity to mitigate some losses – i.e. act in a way that meant that the full scale of the damage might not have occurred – the body corporate might be in some way responsible for not doing that as well. It may have contributed to the damage now occurring by ignoring the defects.

Aside from that, there is a common property defect. That should be attended to and rectified. The issues referred to should be made good. That is the body corporate’s statutory obligation.

The next question is whether the body corporate can blame someone for that, and seek to recover damages from people who contributed to it. That is where the questions I refer to above will come into play.

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

This post appears in Strata News #507.

Question: I’d like a succinct explanation of an On-site manager’s powers in a QLD body corporate complex.

Please give a succinct explanation of an On-site manager’s powers in a complex. Some owners think we have all-encompassing powers and can go around arresting people and towing cars away for parking incorrectly. Perhaps an explanation of the due process that has to be followed to enforce a By-law breach is required?

Answer: An onsite manager doesn’t have ‘powers’ as much as they have duties.

An onsite manager doesn’t have ‘powers’ as much as they have duties. Those duties are set out in their management rights agreements.

As always, the difficulty then comes with personalities. Some committees want onsite managers to run around executing people for the slightest infraction and others don’t want that to happen at all as they want to deal with it.

At law only a committee can enforce by-laws. Any ‘enforcement’ usually comes as result of by-law infractions, so what that mans is that (in a nutshell) an onsite manager should report breaches of by-laws to the committee for actioning. The committee then should deal with them. A good onsite manager may well have a quiet word to the alleged breacher and suggest that if they don’t follow the by-laws the committee may get a little unhappy about it, so its perhaps best you don’t do ‘that’ any more too.

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

This post appears in Strata News #501.

Question: Our on-site manager did not carrying out necessary tree pruning and we’ve had to engage a specialist contractor. Surely this extra expense should be the caretaker’s cost?

Our on-site manager/caretaker has not maintained the trees in our complex. They are now above a safe height for the manager to trim. If the manager had done the work on a regular basis this would not have happened. The on-site manager now needs to hire a tree specialist at the cost of the Body Corporate. Surely the manager is a fault here and should be pay for the work to be done.

Answer: The manager ought to bear the costs of engaging the specialist contractor to restore the tree to the standard required of the agreement.

Without reviewing the terms of the agreement to confirm that:

that the manager’s obligations were to maintain the tree to a level that would remain safe to work on without the need for a specialist contractor; and

the manager’s duties actually exclude maintaining trees above a particular height,

it is difficult to confirm.

However, if we assume that the above assumptions are correct, then yes, the manager ought to bear the costs of engaging the specialist contractor to restore the tree to the standard required of the agreement.

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

This post appears in Strata News #485.

Question: With regards to maintaining the land which abuts the body corporate area, e.g. the grass verge on the footpath, would a body corporate committee have authority to request its service contractor to mow this area?

With regards to maintaining the land which abuts the body corporate area, e.g. the grass verge on the footpath, would a body corporate committee have authority to request its service contractor to mow this area? This is given that the footpath is technically outside of the common area and so technically outside of the control of the body corporate.

Answer: The obligations of a service contractor, and the body corporate’s entitlement to direct a service contractor to perform additional duties, hinges on the wording of the body corporate’s agreement.

The obligations of a service contractor, and the body corporate’s entitlement to direct a service contractor to perform additional duties, hinges on the wording of the body corporate’s agreement, including:

whether the duty regarding mowing is stated to include the grass verge (or if it states that the requirement for mowing relates only to the common property); and

whether the agreement includes a clause enabling the body corporate to direct the service contractor to undertake additional duties (which may be for additional remuneration) and, if so, whether that clause is sufficiently broad to enable such a direction to relate to the grass verge (which is outside of the Scheme land).

Hayley Gath
Mathews Hunt Legal
E: [email protected]
P: 07 5555 8000

This post appears in Strata News #485.

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 May 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.

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.

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.

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.

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
E: [email protected]
P: 07 5609 4924

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.

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

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

Have a question or something to add to the article? Leave a comment below.

Read next:

Still after more information about duties of a building manager or even more general articles about strata in Queensland? Visit our Building Managers OR Strata Legislation Queensland

Looking for strata information concerning your state? For state-specific strata information, take a look here.

After a free PDF of this article as a duties of a building manager resource? Log into your existing LookUpStrata Account to download the printable file. Not a member? Simple – join for free on our Registration page.

Comments

David Bell says

March 5, 2025 at 7:02 pm

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.

Reply
- Nikki Jovicic says
  
  April 23, 2025 at 12:38 pm
  
  Hi David
  
  The Q&As in this article should assist:
  
  QLD: Bullying in Strata! Some Committees are Extremely Unreasonable
  
  Reply
Leo says

October 3, 2024 at 2:57 pm

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?

Reply
- Liza Admin says
  
  October 17, 2024 at 9:45 am
  
  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.
  
  Reply
Tim Syben says

June 20, 2024 at 1:34 pm

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?

Reply
- Liza Admin says
  
  August 19, 2024 at 8:30 am
  
  Hi Tim
  
  Chris Irons, Strata solve has responded to your comment in this article: QLD: Q&A Authorising Common Property Changes or Improvements
  
  Reply
Blurnt says

May 20, 2024 at 10:16 am

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?

Reply
- Liza Admin says
  
  May 28, 2024 at 2:27 pm
  
  Hi Blurnt
  
  The following response has been provided by Frank Higginson, Hynes Legal:
  
  That would usually be the case
  
  Reply
Stanfen says

July 31, 2023 at 7:24 pm

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.

Reply
- Liza Admin says
  
  August 18, 2023 at 12:52 pm
  
  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.
  
  Reply
Kiurrtis says

July 27, 2023 at 8:34 pm

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?

Reply
- Liza Admin says
  
  August 18, 2023 at 12:54 pm
  
  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.
  
  Reply
Hesail says

May 1, 2023 at 7:15 am

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.

Reply
- Liza Admin says
  
  May 9, 2023 at 8:37 am
  
  Hi Hesail
  
  Frank Higginson from Hynes Legal has responded to your question in the article above.
  
  Reply
Monica says

June 4, 2022 at 1:29 pm

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?

Reply
- Nikki Jovicic says
  
  June 8, 2022 at 6:33 am
  
  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?
  
  Reply
Helen says

February 17, 2022 at 4:21 pm

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.

Reply
T. Scott says

January 19, 2022 at 10:34 am

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

Reply
Ross Anderson says

July 7, 2021 at 7:55 am

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.

Reply
Pete says

November 24, 2020 at 11:59 am

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?.

Reply
- Liza Admin says
  
  November 30, 2020 at 9:58 am
  
  Hi Pete
  
  Frank Higginson from Hynes Legal has responded to your comment on this post: QLD: Bullying in Strata! Some Committees are Extremely Unreasonable
  
  Reply
Linda says

October 29, 2020 at 1:01 pm

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.

Reply
Steve Davey says

July 31, 2020 at 7:07 am

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?

Reply
- Nikki Jovicic says
  
  July 31, 2020 at 9:34 am
  
  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.”
  
  Reply
Siobhan McHugh says

June 21, 2020 at 12:39 pm

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??

Reply
- Liza Admin says
  
  June 24, 2020 at 1:55 pm
  
  Hi Siobhan
  
  We have answered your query in the above article.
  
  Reply
Jennifer Bowra says

June 13, 2020 at 5:14 am

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.

Reply
- Liza Admin says
  
  June 15, 2020 at 1:12 pm
  
  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.
  
  Reply
Neish says

April 30, 2020 at 11:03 pm

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

Reply
- Liza Admin says
  
  May 1, 2020 at 2:22 pm
  
  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.
  
  Reply
Rachel says

April 9, 2020 at 2:12 pm

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

Reply
- Liza Admin says
  
  April 15, 2020 at 12:08 pm
  
  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.
  
  Reply
- Mary says
  
  November 13, 2020 at 10:15 pm
  
  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?
  
  Reply
Kathy Schuarz says

February 28, 2020 at 10:09 am

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.

Reply
- Nikki Jovicic says
  
  March 2, 2020 at 11:06 am
  
  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.
  
  Reply
Gregory says

January 24, 2020 at 2:03 pm

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

Reply
- Nikki Jovicic says
  
  January 29, 2020 at 1:39 pm
  
  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.
  
  Reply
Jennifer Bowra says

December 29, 2019 at 4:17 am

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?

Reply
- Nikki Jovicic says
  
  January 14, 2020 at 12:22 pm
  
  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.
  
  Reply
Audrey says

November 27, 2019 at 5:28 pm

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

Reply
Ross Anderson says

October 18, 2019 at 12:57 pm

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.

Reply
Nikki Jovicic says

February 12, 2019 at 11:23 am

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.

Reply
Debbie says

July 18, 2018 at 12:16 pm

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.

Reply
- Nikki Jovicic says
  
  July 19, 2018 at 7:38 am
  
  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.
  
  Reply
M says

July 13, 2018 at 12:38 pm

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

Reply
- Nikki Jovicic says
  
  July 16, 2018 at 6:30 pm
  
  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.
  
  Reply
ASSUNTA LUCAS says

May 4, 2018 at 9:15 am

Thankful for this article.
Very interesting .

Reply
Phillip Langworthy says

February 15, 2017 at 10:13 am

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.

Reply
- Nikki Jovicic says
  
  February 15, 2017 at 3:47 pm
  
  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.
  
  Reply

Enter your email Address

Question: What is the extent of a caretaker’s authority in body corporate matters beyond their defined duties?

Answer: The key is finding a solution that minimises time, cost and emotional toil.

Question: Due to Cyclone Alfred, our holiday letting resort will be closed for up to nine months. Are we required to continue to pay the monthly caretaker fees?

Answer: It is possible that payment could be withheld, however that would depend on the terms of the specific agreement.

Question: Should the caretaker use the resort pool during their designated working hours?

Answer: There is no standard when it comes to MR agreements.

Question: Our caretaker uses our building’s mower and whipper snipper weekly to conduct gardening work at other properties. Is this a breach of his contract? What can we do about this?

Answer: It all hinges on their contract.

Question: Should the building manager report breaches of by-laws to the committee? In our building, there are members of the committee who commit breaches. How can we deal with those?

Answer: Your building manager should only do what their contract requires.

Question: As a caretaker, can the committee dictate what hours I work?

Answer: The simple answer to this is ‘no’ subject to the terms of the agreement.

Question: Our caretaker has requested written confirmation that they are volunteering when performing extra duties not covered by their agreement. Will this cover them as a volunteer under the OC’s insurance?

Answer: There is a strong possibility the insurer would scrutinise the role of the caretaker in line with the contract for services they provide.

Question: Our body corporate would like to conduct a time and motion study on the caretaker. As they are within the contract term and the agreement does not specify hours worked, is the caretaker bound to contribute to the investigation or any findings?

Answer: There is no obligation on anyone to agree to do something outside of the managing agency agreement.

Question: Our caretaker/letting agreement makes no specific reference to a substitute manager being appointed while our contracted manager takes annual leave or is off sick. Does a proposed substitute’s appointment require body corporate approval?

Answer: If the agreement is silent, the caretaker can likely install any employees or contractors to perform the work without the need for body corporate approval.

Question: If the body corporate requests the caretaker gather and maintain the owner roll, are they within their rights to refuse?

Answer: The management of the body corporate roll is definitely a task for a body corporate manager – not the caretaker.

Question: Our onsite resident managers don’t provide any cleaning of the gym equipment. Do rules for the cleaning of gym equipment come under health and safety? The complex consists of 196 units.

Answer: Is cleaning gym equipment the responsibility of your scheme’s onsite managers? That depends on the contract’s terms.

Question: Can an Onsite Manager evict a short term let guest? Can a Body Corporate evict a guest?

Answer: Possibly, and no, respectively.

Question: What are the requirements for the caretaker to clean and maintain the pool?

Answer: This will depend on the precise wording and duties set out in the caretaking agreement.

Question: The on-site management rights are being sold. If the new caretaker outsources the work to contractors, is the new caretaker responsible if those contractors don’t keep the complex up to a satisfactory standard?

Answer: In almost all cases, yes.

Question: Our caretaker’s agreement mentions the responsibility for mowing ‘verges’ but does this also mean common area? The wording is causing a few headaches. How do we resolve this?

Answer: There is no such thing as a standard management rights agreement so each one needs to be read in detail.

Question: Our caretaker’s spend allowance has been increased from $500 to $1000 per item. Is the arrangement usual, and if so, how do we best control spending?

Answer: Such a clause is a very common (and important) clause that appears in most management rights agreements.

Question: Our resident manager isn’t doing his job. What is classed as a breach of contract? Can we terminate his contract?

Answer: Read the caretaking agreement and understand what the caretaker’s duties are.

Question: As part of his duties, is the caretaker required to let lot owners into the building if they lock themselves out?

Answer: In the absence of some contractual obligation it is for the lot owner to find a way back into their lot.

Question: As building managers, should we be reimbursed for items needed to complete works required under the caretaking agreement?

Answer: What does the management / caretaking agreement say?

Question: Our onsite manager has been successful with a motion to reduce the number of operating hours. Many are not happy with the new performance of duties. What can we now do?

Answer: There may be some specific terms in the contract with the caretaker that could be affected by this change and you would need to review that document to confirm. It may be appropriate to engage a body corporate lawyer to do this.

Question: A caretaker contract with a vague scope of works may lead to disputes over the quality of work being done. When approaching this, what is a good response if the caretaker says ‘that’s not in my contract’?

Answer: Consider engaging an independent management rights expert to do a common property condition report.

Question: The new caretaker sold the body corporate’s box trailer and pocketed the money. Can we invoice them the cost of a replacement trailer?

Answer: The caretaker may be under the (mistaken) assumption that it was theirs to begin with.

Question: Is the building manager able to issue fines for by-law breaches?

Answer: The building manager has no ability to impose fines (and nor does the body corporate).

Question: Our caretaker has “commandeered” our garden shed as his recreation space. Our bylaws clearly state that the shed is for storage only. Surely the Committee need to enforce this?

Answer: A caretaker can only use common property for purposes related to caretaking if those rights are granted by way of an occupation authority.

Question: Neglect of a garden on top of the carpark has been blamed on the caretaker’s lack of maintenance. Could this be correct?

Answer: I think the starting point is what the caretaking agreement says.

Question: I’d like a succinct explanation of an On-site manager’s powers in a QLD body corporate complex.

Answer: An onsite manager doesn’t have ‘powers’ as much as they have duties.

Question: Our on-site manager did not carrying out necessary tree pruning and we’ve had to engage a specialist contractor. Surely this extra expense should be the caretaker’s cost?

Answer: The manager ought to bear the costs of engaging the specialist contractor to restore the tree to the standard required of the agreement.

Question: With regards to maintaining the land which abuts the body corporate area, e.g. the grass verge on the footpath, would a body corporate committee have authority to request its service contractor to mow this area?

Answer: The obligations of a service contractor, and the body corporate’s entitlement to direct a service contractor to perform additional duties, hinges on the wording of the body corporate’s agreement.

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

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?

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

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?

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.

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?

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

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.

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?

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

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.

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

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.

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.

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?

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

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?

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

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?