Question: Can our owners corporation committee reduce gardening services without consulting all owners?
Our committee has decided to reduce gardening services, with the gardener now only trimming the hedge at the front of the property and weeding three properties, rather than all of them.
The previous owners corporation arranged for the gardener to trim all of the owners corporation trees once a year before winter, with each owner managing the weeding of their own front garden. The committee made this decision without consulting any other owners, and it doesn’t feel fair given we all pay owners corporation fees every quarter.
Does the committee have the power to make this kind of change on its own?
Answer: Yes, the committee can reduce gardening scope within its delegated authority, provided it acts honestly and does not favour some owners over others.
Yes, they can.
Under the Owners Corporations Act 2006 (the Act), an owners corporation committee does have the authority to make many day-to-day operational decisions without first consulting all lot owners. However, that authority is not unlimited, and it must be exercised in accordance with the Act, the regulations, the registered or model rules of the owners corporation and any resolutions previously made by the owners corporation.
The relevant legislation is as follows:
Committee authority
Under section 100 of the Act, an owners corporation may establish a committee to carry out its functions and powers. The committee is generally delegated with the power to make decisions on behalf of the owners corporation, except for matters that the Act requires to be decided by a general meeting or via a ballot of all owners (special or unanimous resolutions).
This means the committee does not have to seek approval from all owners before making routine maintenance decisions, including decisions about gardening contractors, provided those decisions are within its delegated authority.
Duty to act honestly and in good faith
Committee members must comply with section 117 of the Act, which requires them to:
- act honestly and in good faith;
- exercise due care and diligence; and
- act in the best interests of the owners corporation.
If a committee makes decisions that favour only certain lot owners without a reasonable basis, there may be a question as to whether it has complied with these duties.
Maintenance of common property
The owners corporation has a duty under section 46 of the Act to properly maintain the common property.
A key question is whether the hedge, trees and gardens being maintained are common property or form part of individual lots.
- If the hedge and gardens are on common property, the owners corporation is responsible for maintaining them, and maintenance should generally be carried out consistently unless there is a legitimate reason for treating different areas differently.
- If the gardens are within individual lots, the owners corporation is generally not responsible for maintaining them unless the plan of subdivision, the rules, a lease or licence agreement is in place, or a resolution of the owners corporation provides otherwise.
Committee meetings
The Act and Regulations prescribe procedural requirements for committee meetings (such as notice, quorum and minutes). However, they do not require the committee to consult every owner before making operational decisions such as engaging or directing a gardener.
Is this situation unusual?
It is not uncommon for committees to alter gardening contracts or maintenance schedules as budgets or priorities change.
However, what would be unusual is if:
- Common property adjoining only three lots is maintained at owners corporation expense while equivalent common property elsewhere is not;
- Committee decisions provide a private benefit to particular owners without justification;
- The committee is spending owners corporation funds inconsistently with the approved budget or maintenance plan; or
- The committee is acting contrary to a resolution previously made by the owners corporation.
What you can do
If you are concerned, you could:
- Request a copy of the committee meeting minutes to understand the basis for the decision.
- Ask the committee to explain why only three properties are receiving weeding services.
- Check whether the areas being weeded are common property or part of private lots.
- If you believe the decision is unreasonable or not in the interests of the owners corporation, request that the matter be placed on the agenda for the next general meeting or seek support from other owners to have the decision reconsidered.
- If the dispute cannot be resolved internally, the matter may ultimately be referred to the Victorian Civil and Administrative Tribunal (VCAT) under the dispute resolution provisions of the Act.
This post appears in Strata News #802.
Ben Quirk TOCS E: ben.quirk@tocs.co P: 0448 663 616
