Question: Our letting agreement says they “will act fairly and lawfully and not discriminate between owners”. What is deemed unfair or discriminatory?
Our body corporate operates under the Accommodation Module. Our letting agreement imposes a rather vague obligation on the caretaker/letting manager that he/she “will act fairly and lawfully and not discriminate between owners”. Can you give any simple examples of what might be deemed unfair or discriminatory?
Answer: Once inside the ‘letting pool’ the manager must not discriminate amongst letting owners. The manager must share occupancies around as equally as possible given the qualities of the apartments and the desires of customers.
Chris Irons, Hynes Legal:
To be frank, your guess is as good as mine and I suppose this query highlights the problems which arise when terms are not well defined. Firstly, if I wanted to be really technical about it, I’d say that “between owners” suggests just 2 owners (“amongst” is the correct term to use here, I think) and so, which 2 owners? Putting that grammar pedantry aside, I don’t actually know what “discriminate” refers to here. There’s a literal meaning of the word and then there’s a meaning given by legislation. A common example of that might be anti-discrimination legislation which specifies different categories. Is that what is meant? I suspect not but then again, who knows?
In body corporate legislation, “discrimination” is referred to in relation to owners and occupiers, i.e., a by-law must not discriminate between them.
So as you’ve correctly identified, it’s a vague obligation and I daresay the fact you’re asking the question means it is vague to others as well. You could all guess as the meaning of this term and muddle along that way. Alternatively, legal advice could be sought to tighten up this and any other vague or ambiguous terms in the agreement. This might be to everyone’s benefit to do so.
Frank Higginson, Hynes Legal:
I think this needs to be looked at in the context of it being in the letting agreement. This agreement authorises the manager (as agent) to act as letting agent for owners. Owners have a choice as to whether they engage the manager for that service. If so, they enter into a letting appointment with them (on a Form 6).
Once inside the ‘letting pool’ the manager must not discriminate amongst letting owners and to me (in its simplest form) that means the manager must share occupancies around as equally as possible given the qualities of the apartments and the desires of customers. That sharing needs to take into account a range of things and it doesn’t mean that occupancy must be equal. Take two competing 1 bedroom apartments. One is old, shabby and faces west with no views. The other is refurbished and has north east ocean views. The latter apartment would inevitably have more occupancy because that is what customers would want to stay in, and probably request.
I don’t think this clause has any application outside that letting context. It doesn’t mean the manager must be friendly with people not in their letting pool, or assist outside agents (for example).
Frank Higginson Redchip Strata Law E: FrankH@redchip.com.au P: 07 3193 0500
Chris Irons Strata Solve E: chris@stratasolve.com.au P: 0419 805 898