These Q&As about the duties of a building manager, the Privacy Act and disclosing information about lot owners have been answered by Frank Higginson and Todd Garsden, Hynes Legal.
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.
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Many of the lot owners in our scheme are experiencing the most unprofessional conduct from our onsite managers.
The most serious issue being the managers providing personal information about a lot owner such as when this lot owner is home if their vehicle is in the basement etc to a perpetrator that has charges of assault, trespassing, and stalking. What are the duties of a building manager when it comes to disclosing information about lot owners?
Police have spoken to the on-site managers, as it is a breach of the Privacy Act and places the lot owner at a safety risk.
We receive no support from the Body Corporate Managers and Committee, as they feel it’s not their problem. They have stated it’s a civil matter.
What can we do?
Answer: I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.
The first thing is whether we can say for absolutely certain that the information is being passed on? And by who? Who factually knows this? It would be a very dangerous allegation to make, especially if the fact someone is home could be found by alternate means – likely simply seeing them come in or observing the lights were on.
I don’t think it is a breach of the Privacy Act – that relates to information and also only captures businesses with a turnover of more than $3 million. See this article I wrote about this matter – QLD: What does the Privacy Act mean for management rights?
Off the cuff, I think it is a civil matter too. I doubt these issues are captured by the management rights agreements which means it also has little to do with the body corporate or the committee.
This post appears in Strata News #200
Question: What are the duties of a building manager when it comes to providing relevant information to committee members before a vote is taken?
I would like to know the duties of a building manager, and if it is their responsibility to provide all relevant information to committee members before a vote is taken?
Should they do the research or expect the committee members to it?
I live in Queensland and many of our lot owners are very unhappy with the managers’ level of commitment and execution of their duties.
Answer: It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.
It depends on the terms of the caretaking agreement – and what you consider to be all relevant information.
As an example – if the issue was getting some concreting done and the caretaking agreement required the manager to get two quotes, the manager would just need to get the two quotes and present them to the committee. The manager wouldn’t need to go as far as researching the contractor and doing a background check on them. That would be something the committee is then responsible for.
If the caretaking agreement required the manager to make a recommendation to the committee about which quote to use, then the manager would probably need to do some research so that they could back up their recommendation.
This post appears in Strata News #129.
Question: What is deemed appropriate behaviour by onsite managers / do 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 staring from a height using binoculars.
This is unnerving given the fact there are quite a few women who live alone at our complex and a number of the properties have children or dependents residing.
Is it against the law as a manager to peer into properties to catch people out? Do these actions form part of the duties of a builder manager?
Answer: With management rights, it is sometimes feast or famine.
Complaints can be made about extremely zealous managers (as appears to be the case here), and then the next one will be about the manager completely ignoring what they have to do. Of course, a lot of managers do get it right, but then there is no cause to complain!
What I suspect is happening here is that the manager is taking an almost militant approach to managing compliance with the by-laws. There is probably a by-law saying that items shall not be stored on balconies. There is probably also a by-law saying that washing (if it is hung outside) should not be visible from the common property or other lots. These are both ‘traditional’ template by-laws that we see in many schemes.
How the manager is going about it is obviously causing concern and for me, it starts with what the manager’s agreement says about by-laws and who should actually enforce by-laws.
We first wrote about this in 2011 – Does a Resident Manager Enforce By-Laws?
In essence, the normal position will be that the manager should tell the committee about breaches of the by-laws and then it is up to the committee to do with that as it sees fit. It is not the role of the manager to call people out on their by-law breaches.
Ultimately, it should be a matter of instruction. If the committee said to the manager ‘we don’t care about washing – leave it go’, then that is the end of the story. If the manager’s conduct is intrusive, you can obviously have a direct communication about that, but the alternative is to formally write to the committee with the concerns and ask them to manage them.
Question: What qualifications form part of the duties of a building manager? Does our Building Manager need any specific qualifications like a resuscitation certificate or any OHS qualifications?
What qualifications form part of the duties of a building manager? I have read that a building manager/caretaker only needs a Reality License to hold a Building Manager position in QLD. Are there no other qualifications they need, such as OHS certification, qualified in resuscitating for the pool, plus others?
Answer: There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.
There are no qualifications required for a caretaking service contractor under the Act. These could be imposed by agreement but it would be very unusual.
If a resident manager lets lots they do need a licence to act as a real estate agent, but that relates only to letting. And to be fair, the question does reveal some of the many misconceptions that come with management rights. A resident manager is not a pool safety official (as one example). Duties of a building manager do not extend to the supervision of people swimming in the pool. That is what by-law and parents are for!
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Frank Higginson
E: [email protected]
Todd Garsden
E: [email protected]
P: 07 3193 0500
W: http://www.hyneslegal.com.au
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We were asked, via email “Are there any templates or examples of ‘On-site’ manager contracts, stating exactly what the duties of a building manager are?”
Frank Higginson replied:
There are a few forms of them you see more than most, but that is mostly because they are generic and just cover the same old, same old.
The better way to do these is to get a schedule specifically set to the needs of the building – because each one is going to have something a little bit different.
Hi,
Is there an obligation for on site building managers to be available 24/7? I do not and have never seen their agreement.
The only reason I ask is that our electricity box kept shorting when the stove was put on and it happened on public holiday Monday and we were told by the building manager that they were away for 3 to 4 hours to turn our electricity box downstairs in the basement on and we were without power that for that length of time.
My understanding and to several people I have spoken to who live in Strata properties think the same as me that we pay the building managers a wage and they should be available 24/7. I do know of several strata property where they have 3 people as the building managers so that one person is on call on the weekends due to emergencies.
Hi Debbie
We have received the following reply back from Frank Higginson:
It all depends on the terms of the caretaking agreement – like any engagement of a contractor or employee. You need to get that to see what it says.
What I would add though is that 24/7 availability should cost more than 9-5 availability, and most caretaking agreements only really require the latter.
I am a lot owner of a medium sized building. The developer had sold management right to another caretaker about a year following settlement of most units. The new management no longer provides ‘on-site manager’ duties however they are being paid at the same rate as an onsite management service. They have also reduced the number of cleaning to common areas (i.e. lift, front entrance) per week which means the building is not kept at its optimal state. Do I have the right to (i) request a copy of caretaker agreement from my body corp manager, and (ii) request potential pay cut for the sack of body corp premium? What resources can I use to quote for realestic building manager caretaker fee? Thank you
Hi M
We have received the following reply back from Frank Higginson, Hynes Legal:
The duties of a building manager are those set out in the management rights agreements. The answers to the questions below are going to be revealed by a proper look at the agreements and the duties in them.
Unless there is some specific provision in the agreements allowing a reduction of the remuneration (which would be very unusual) the right of the body corporate if the agreements are being breached is to issue a remedial action notice. The only way an agreement can be changed is if both parties agree to it. It is a binding contract.
Thankful for this article.
Very interesting .
Hi
A detailed clause we use for this aspect of our Building Management / Facility Manager contract is copied below as a sample. In accordance with the advice above, your agreement must specify the level of performance you require of the Building Manager for the agreed remuneration. The key word is ‘must’……….This clause works well for me in a NSW holiday letting scheme with a resident manager and in a QLD residential CTS with a non-resident manager.
PL
1.1 Facility Manager’s obligation to assist Committee
The Facility Manager must:
(a) investigate, and advise the Community Association of, appropriate suppliers of:
(i) repair and maintenance services that the Facility Manager is not required to undertake under this Agreement; and
(ii) materials and equipment that must be provided by the Community Association;
(b) arrange any tenders and quotations that are needed before the service contracts and the purchases can be authorised;
(c) make the purchases and arrange the service contracts authorised by the Community Association;
(d) supervise the employees and contractors engaged by the Community Association to perform work or services and as far as reasonably possible ensure that those employees and contractors perform their duties in accordance with their employment or contracts;
(e) use reasonable endeavours to ensure that the work is done properly and safely;
(f) make sure any certificates or approvals required from relevant authorities are obtained and that appropriate records are kept of the work and must provide to the Strata Manager the original copies of all such certificates, approvals and records;
(g) ensure that a person doing any work on the Community Property has all required licences and insurances before the work begins; and
(h) give the Community Association copies of tenders, quotes, contracts, work orders, invoices, appointment letters, receipts and other relevant documents relating to the work.
Thank you for you input, Phillip.
We have received the following reply from Todd Garsden, Hynes Legal:
That is quite a comprehensive clause and probably balances the expectations of a more involved building manager with an active committee.
If that clause was in the agreement for the original question – then there would be a duty to provide more than just the quotes and go a little further from the building manager’s perspective.