This article and Q&A about recovering levies and the need for attention to detail after a recent VCAT case has been provided by Gary Bugden OAM, Bugden Allen Lawyers.
Question: A special levy was raised to replace a membrane and the work had not commenced when I sold the property. Can I request a refund?
We had a special levy issued to replace a membrane and paid for over a 12 month period, with the final funds collected in Jan 2019.
Work has not yet been commissioned on the maintenance project. I have since sold the property. At what point must they spend this money on the membrane replacement project? What if they chose not to progress.
Can I request a refund?
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Answer: The price you received for your property takes into account any reserve funds held by the owners corporation.
The timing for them to act depends on what resolutions have been passed. Irrespective of what happens to the funds raised, assuming that they were raised in good faith there would be no reasonable prospect of you obtaining a refund. In theory, the price you received for your property takes into account any reserve funds held by the owners corporation.
VIC: Are Your Levies Recoverable? The Devil’s in the Detail
A recent decision of the Victorian Civil and Administrative Tribunal is a timely reminder about the need for attention to detail when imposing owner corporation or body corporate levies. We also look at the implication for NSW and Queensland after this decision.
In Owners Corporation No. SP034630W -v- Pekar [2019] VCAT 136 the owners corporation (“OC”) was unsuccessful in its efforts to recover $14,418.46 in outstanding fees (the Victorian equivalent of levies or contributions) because of technical non-compliance with their legislation.
The facts of the case were:
- On 30 May 2018 the OC issued a fee notice for “arrears” of $11,031.31 and “interest on arrears” of $3,402.79, calculated to 1 July 2018 (“Fee Notice”).
- The Fee Notice was addressed to “Mr I. and Mrs F. Pekar” and sent to the relevant address.
- On 14 August 2018 the OC issued a final fee notice with an opening balance at 1 April 2017 of $11,504.12 and a closing balance (or total) of $14,418.46 (“Final Fee Notice”).
- The Final Fee Notice was addressed to “Mrs Ida Pekar” and contained no explanation as to how the April 2017 balance was calculated.
- “Mr I. and Mrs F. Pekar” do not exist, the lot owner being “Mrs Ida Pekar”, whose husband is Mr Fima Pekar.
The legislation
Section 31(1) of the Owners Corporations Act 2006 (Vic) (“OC Act”) requires a fee notice to be given to a lot owner in the approved form, setting out fees and charges due and payable by the lot owner to the OC. The fee notice must also state certain information relating to the lot owners’ obligation to pay, the interest that will be payable if there is no payment and how the fees and charges can be disputed (sec.31(2)).
Section 32(1) of the OC Act requires the OC to serve on the lot owner a final notice in the approved form if the money owing is not paid within 28 days of the date of the fee notice. Again, this final notice must set out certain prescribed information (sec. 32(2)).
The decision
The Tribunal Member held that:
- The Fee Notice was not provided to the lot owner as required by section 31(1) of the OC Act.
- Even if the Fee Notice had been sent to the lot owner (which it was not), it did not prove the balance of the amount brought forward (i.e. the lump sum amount of $11,031.31).
- “The Final Fee Notice was sent to the lot owner, but it was based on the Fee Notice which I have found does not comply with the Act. As a result, any application for an order requiring payment pursuant to the Final Fee Notice cannot succeed and will be dismissed.” (Vide paragraph 21 of the Member’s Reasons.)
The Lesson
Where the legislation governing the imposition and recovery of levies sets up processes, those processes must be strictly followed if the levies are to be recoverable. If the levies are not recoverable:
- it may be necessary for them to be re-imposed on owners for future recovery action to be successful; and
- there may be a risk of owners who previously paid the levies seeking to recover the funds they paid based on mistake.
Implications for NSW
The Strata Schemes Management Act 2015 sets the processes for contributions in NSW, including:
- There must be a determination (i.e. resolution) of the amount of the contributions to be levied.
- Except in the case of a special contribution, that determination must be based on estimates (i.e. a budget).
- The determination of the estimates and the amounts to be levied must be made at the same meeting.
- When the estimates are determined the owners corporation must have before it and take into account a statement of the existing financial situation of the strata scheme and an estimate of receipts and payments.
- The contributions must be “levied” on the lot owners “by giving the lot owner written notice of the contribution payable” (vide sec. 83(1)).
- Other requirements include –
- Contributions must be based on unit entitlements
- The levy notice must indicate the date when the contribution is due and payable
- That date must be at least 30 days after the notice was given
- Restriction on recovery action before the end of one month after the contribution becomes due and payable.
In the event that recovery action is contested by the lot owner, the owners corporation needs to be in a position to strictly prove that the various processes were duly undertaken. This may even extend to proving the content of the levy notice by producing an actual copy of the notice served (rather than a copy generated by a computerised management system using data drawn from the system’s database).
Implications for Queensland
The Body Corporate and Community Management (Standard Module) Regulation 2008 (which, as regards levies, is indicative of the content of the other Modules), sets the processes for contributions in Queensland, including in the case of annual contributions:
- They must be fixed by an ordinary resolution of the annual general meeting
- They must be fixed based on the budgets for the financial year
- The number of instalments in which the contributions are to be paid must be decided
- The dates on which instalments are payable must be fixed
- The contributions must be levied by written notice to the owner of each lot at least 30 days before the payment is required
- That notice must specify the 6 things set out in section 142(1) of the Module
- That notice must be served on an owner at their address for service “or in the way directed by the owner”.
Again, in the event of contested recovery action, the body corporate needs to be in a position to strictly prove that those processes were properly undertaken. The availability of an exact copy of the levy notice is particularly important in Queensland because of the amount of information that is required on the notice. Reliance on computer generated historical copies, using data in a computerised management system, is not recommended in Queensland.
Conclusion
It is time to check your determination and levying processes for maintenance contributions, as well as the wording and content of your levy notices. In particular, do you keep an actual copy of the levy notice that was served on each lot owner? If you do, does it contain all the information it is required to contain? Was it served within any required timeframe? The list of questions goes on, so, good luck with your next levy collection!
Have a question about recovering levies or something to add to the article? Leave a comment below.
This post appears in Strata News #303.
Gary Bugden
Partner
Bugden Allen Lawyers
M: 0412 046 966
E: [email protected]
This article does not constitute legal or other advice and should not be relied upon this way. Readers should take legal or other advice before applying the information containing in this publication.
Read Next:
- VIC: Q&A Limit to Owners Corporation Levy Increases
- QLD: Q&A Interest Charges on Overdue Strata Fees
- NSW: Q&A What Interest Can Be Charged on Overdue Strata Fees? From When?
This article has been republished with permission from the author and first appeared on the Bugden Allen lawyers website.
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Dear Sir/Madam
At our AGM our we experienced 273% increase in strata levies. .The levy increase was based on , Building Management Committee’s Budget for the year, which included Remedial Work and painting, Since the increase there has been an ongoing dispute our what the shared faculties and common property between the residential and commercial strata’s that make up the complex. We also have a dispute over cladding on the property as to where it is residential or commercial and whether it is a fire hazard or not.
The quote for remedial and painting was based on incorrect assumptions (This was acknowledged by our Exec Committee at a recent SGM ) , which are now in dispute and it looks likely that a new revised quote will needed based on the findings.
As the incorrect levies where set at an AGM we need an EGM and majority vote to reset the levies. The problem is that as result of the huge levy increases most lot owners are non-financial and therefore can’t vote at any meeting.
We would like whatever levies paid to be returned and levies reset accordingly.
Is there any way we can rectify the situation?, without a unanimous vote which it seems in our situation is impossible.
Can our case be argued at NCAT
Thanks in advance
To some degree it depends on your State’s legislation Anne. But it is probably too late. Also, there would need to be a lot of money involved for it to be worth while. Litigating a refund claim could be complicated and expensive. The best advice is – be on the lookout next time!
We were imposed with a roof levy ad havoc about 4 years. Never thought we could do anything about it.
Can we act on it now? There were issues about how it was served and who actually contributed?