Commissioners Corner - Tenant vs Owners Rights in Strata
Wednesday May 16th, 2018
In these articles, I have spoken at length about roles and responsibilities of bodies corporate, owners, committees, managers and other parties.
At times I also talk about “occupiers” of a lot. This is the term the Body Corporate and Community Management Act 1997 (the Act) uses in relation to someone occupying a lot – the Act does not refer to a “tenant”.
That said, it is reasonable to think of a “tenant” as an “occupier” and particularly for the purposes of a discussion about the way in which someone who is renting in a community titles scheme interacts with the body corporate.
I have heard and my Office has heard of instances where a body corporate – and by extension, its body corporate manager – says that they deal only with owners and have no relationship or responsibility towards tenants.
This is not correct.
Occupiers have a number of rights and responsibilities under the Act and in that respect if nothing else, a body corporate and its manager is required to deal with a tenant.
One obvious way in which this might occur is in relation to by-laws.
By-laws apply equally to owners and occupiers (tenants). This is a two-way street. The body corporate is obliged to enforce its by-laws, whether an owner or an occupier is breaching them, but equally, an occupier has a right to request the body corporate enforce its by-laws if that occupier considers a breach has occurred.
In practical terms, this means that if a tenant contacts the body corporate and follows the prescribed by-law process (including issuing a Form 1 provided by my Office), the body corporate should be following through on the concerns of the tenant and making a decision accordingly.
A tenant has the ability to access the dispute resolution service of my Office in the event that the body corporate does not follow through with enforcement of its by-laws.
A tenant also has rights in relation to maintenance, particularly as it relates to common property and supply of utility infrastructure services.
In a practical example, if the body corporate is supplying electricity to a lot which is occupied by a tenant and then there is a cessation of supply, the tenant would have a right to “talk with” the body corporate about this issue and if appropriate, seek rectification. Depending on the circumstances, the tenant may have a reasonable expectation that the body corporate take urgent action.
A further way in which a tenant has a relationship with a body corporate is in accessing body corporate records.
A tenant may be considered an “interested person” for the purposes of section 205(6) of the Act – in particular, as part of the definition as “another person who satisfies the body corporate of a proper interest in the information sought” – and thus, be entitled to access body corporate records, such as a copy of the body corporate roll.
There is at times confusion about the role of the landlord or property agent in relation to the body corporate. Again, I have heard of bodies corporate and body corporate managers requesting a tenant go through their landlord or property agent in order to have a maintenance issue attended so.
As I have noted above, if the body corporate has a responsibility to maintain, then the body corporate should be exercising that role, regardless of whether the person requesting maintenance is a tenant and whether or not there is a landlord or property agent involved.
I am also aware that some committees and owners have an idea that they may be able to take action to evict a tenant. This is not the case and a body corporate has no involvement in the relationship between a tenant and their landlord.
Similarly, neither a body corporate nor an owner has any right to be consulted about or to ‘vet’ a tenant or prospective tenant on the scheme. Again, this is purely a matter for the tenant and their landlord/agent. There is, however, a requirement for the body corporate to be notified of the details of any occupier who is occupying a lot for six months or more.
The Residential Tenancies Authority (RTA) is the Queensland government body which has responsibility for tenancy-related issues. My Office has collaborated with the RTA on a number of information products, including webinars, about tenants’ rights and responsibilities in a community titles scheme.
These products and general tenancy information can be found at http://www.rta.qld.gov.au/.
For further information about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, or visit our website www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.