Commissioners Corner: Top 10 FAQ’s
Tuesday July 24th, 2018
Here at the Commissioner’s Office, we are only too happy to answer questions (assuming they’re ours to answer) and give information about body corporate matters.
That said, it’s fair to say that there are some queries that we do hear over and over.
With this in mind, I present to you our list of “10 Frequently Asked Questions You Keep Asking Us”.
But seriously, the real aim of this list is to help you avoid having to make a call or send an email to our Information Service by setting out some of the more common queries we receive.
Q1: An owner is requesting a copy of the body corporate roll. We also have owner’s emails and phone numbers. Do we have to release all the information or just their name and address or is there a privacy issue here?
A1: A body corporate (and a body corporate manager) must release body corporate records upon request and payment of the prescribed fee. Body corporate records are not subject to privacy laws.
The supply of information from the body corporate roll has been addressed in a number of adjudicator’s orders. In Application Ref: 0310-2010 Club Lodge CTS 11377, the committee sought an order requiring the body corporate manager to provide unit owner and agent contact details. The adjudicator ordered:
“I hereby order that, within seven (7) days of the date of this order, Capitol Body Corporate Administration must provide all contact details for owners of lots within Body Corporate for Club Lodge, and their agents, that are within its possession and which were given to it in its capacity as body corporate manager for the scheme, to the Committee for the Body Corporate for Club Lodge.”
While the order referred only to the committee being provided with all contact details of owners, in the adjudicator’s reasons for decisions the adjudicator made particular reference to the Privacy Act 1988 and the requirement to release all information contained on the roll or other records, including email addresses and telephone numbers. The release of the information related not only to committee members but also interested persons as defined by section 205 of the Body Corporate and Community Management Act 1997 (BCCM Act).
Q2: An owner has requested a copy of the financial statements for each year from 2012 to 2015. This is going to take time for a staff member to locate and copy these records. Can we charge the inspection fee as well as the copy fee plus our additional charges?
A2: No. If the interested person is simply requesting photocopies of body corporate records, they only need to pay the copy fee ($0.65 per page). They do not need to pay the fee for inspecting the records ($17.25 for a lot owner and $33.15 for a non-lot owner).
With respect to additional fees being charged, this has been considered in many past adjudicator’s decisions and the same approach has been consistently applied since. In Application Ref: 0442-2001 the adjudicator stated:
“…I do wish to make some comment on the resolution which has been carried by the body corporate regarding the provision of information or copies of records to owners….
….The body corporate is not permitted to impose additional charges or fees on the provision of information to interested persons, or at least is not entitled to seek to recover those fees from such persons. If a manager, or other person, requires the payment of additional fees for the provision of information to interested persons, then this is a matter between the body corporate and the manager or other person providing the information on behalf of the body corporate. The interested person being provided with the information is only required to pay a fee in accordance with the above quoted section of the standard module; namely 50 cents for each page of a record supplied. Any separate professional charge above this prescribed fee is a matter for the body corporate….”
Q3: Can we charge GST on any fees payable to the body corporate?
A3: GST is governed by federal law and the Australian Taxation Office should be consulted in regards to any queries on GST. However, the prescribed fees in the BCCM Act and regulations are GST free.
If a body corporate management company is registered for GST and must charge for their services, those charges are made directly to the body corporate via the services provided to the body corporate under their contract of engagement; not to individual owners.
In Application Ref: 0721-2014 the adjudicator stated (emphasis added):
“…The Act and Standard Module provide that the body corporate is required to retain certain records, and to make those records available to “interested persons” (including lot owners) within 7 days of receiving a request accompanied by the prescribed fee. The body corporate is to either provide copies of records, or permit an interested person to search the records, as requested by the interested person. The prescribed fees for a lot owner are $15 to inspect the records, and 55 cents per page for copies of the records.
Bodies corporate are not at liberty to inflate the prescribed fees. The fees have the force of law and must be levied at precisely the rate stated in section 205 of the Standard Module. The body corporate’s email to the applicant on 1 July 2014 sought to impose fees of $16.50 to inspect body corporate records, and 61 cents per page for copies of the records. These amounts are 10% higher than permitted by the legislation and may reflect the incorrect view that GST ought to be added to the prescribed fees. The adjudicator in Balmattum addressed this question:
“The fees are set out in the legislation, and there is no provision for GST to be added. There is no GST payable. … These are fees prescribed by legislation. They do not, and do not intend to, represent actual costs.”
Q4: I don’t have a copy of the legislation. Where do I get it from?
A4: The legislation printing service – Lit Support – can supply upon payment hard copies of the legislation. They can be contacted on 3223 9200. Alternatively electronic copies can be viewed on our website at http://www.qld.gov.au/bodycorporate under the heading ‘Body corporate legislation’ or on the Office of Parliamentary Counsel’s website http://www.legislation.qld.gov.au/.
Q5: A motion was voted on at a recent general meeting and required a special resolution to pass. The votes were 21 ‘Yes’, 7 ‘No’ and 3 Abstain. There are a total of 40 lots. As this didn’t get 75 per cent in favour am I correct that the motion failed?
A5: Counting votes by special resolution has three elements that must be satisfied for the motion to pass. The first element states that two-thirds of the votes cast must be in favour of the motion. Two-thirds is approximately 66.6 per cent not 75 per cent. The words ‘votes cast’ means you should add up the ‘yes’ and ‘no’ votes and then calculate 66.6 per cent of the total. The number of ‘yes’ votes must be 66.6 per cent of the votes cast (or more than).
Calculation: 21 ‘yes’ plus 7 ‘no’ = 28 votes cast. 21 is more than two-thirds of the votes cast so this element passed.
The second element is calculating the percentage of ‘no’ votes out of the total number of lots. There must not be more than 25 per cent of the number of lots against the motion.
Calculation: If there are 40 lots, 25 per cent of the total number of lots is 10. As there are only 7 votes, this element of the motion passed.
The third and last element to the counting of votes for a special resolution is to consider the contribution schedule lot entitlements of all the lots and then specifically the contribution schedule lot entitlements of those lots that voted against the motion. If all the lots have equal contribution schedule lot entitlements then this element is automatically passed.
If the lot entitlements differ, the body corporate must ensure the total contribution schedule lot entitlements of those lots who voted against does not exceed 25 per cent of the total contribution schedule lot entitlements for all the lots.
If all three elements are passed, the motion passed by special resolution.
Q6: Tenants keep contacting me about breaches of by-laws and maintenance issues. I have told them to contact their property agent who can then liaise with the body corporate. Is this okay?
A6: No. Tenants have rights under the body corporate legislation. Specifically, they are referred to as occupiers in the legislation. Therefore the body corporate (and the body corporate manager) should communicate directly with the tenant and in some instances, is required by law to communicate directly with the tenant. For example, if a tenant contravenes the body corporate by-laws, the committee serves the contravention notice to the tenant, naming the tenant, and gives a copy to the owner. The tenant also has rights to raise concerns about maintenance issues and request the body corporate take action. There are also a number of other matters that the tenants should be communicating directly with the body corporate about.
Q7: The committee want me to call an EGM. Can I conduct the EGM by postal vote?
A7: Not for all schemes. Schemes registered under the Small Schemes Module and the Commercial Module may vote outside general meetings (section 111 of the BCCM Act). However schemes registered under the Standard Module and Accommodation Module cannot conduct general meetings by postal vote. They must be called and held in the way provided under the regulation.
Q8: Can the body corporate, in a standard format plan, pass a motion forcing owners to vote on painting the scheme and use body corporate sinking funds?
A8: Under a standard format plan (previously known as a group title plan), the boundaries of lots are defined horizontally with references to marks on the ground or a structural element (for example survey pegs in the ground or the corner of a building) and may be unlimited vertically (Section 48B of the Land Title Act 1994). The boundaries of lots are determined by measurements shown on the survey plan along with marks placed on the ground at the time of the survey.
The building on a lot in a standard format plan of subdivision is part of that lot, and not part of common property. A lot owner is responsible to maintain the lot in good condition. Therefore, the lot owner is responsible for the maintenance of the building, including painting the building and maintaining the roof. The responsibility of a lot owner in this regard is not altered if the building is “stand alone” as opposed to being part of a block including a building or buildings on another lot or lots in the scheme.
As a result, unless the body corporate has the agreement with each owner to supply and charge those owners individually for the service, the body corporate cannot force the painting of the lot or use body corporate funds for a lot owner’s expense.
Q9: The scheme I manage is doing a million dollar roof replacement because the roof has fallen into disrepair and this is the only option to maintain the roof. What type of resolution is required for this maintenance given the cost is so high?
A9: Maintenance above the committee’s spending limit is always an ordinary resolution. The type of resolution does not change simply because of the cost of the maintenance.
Only if the work is considered an improvement will the cost of the improvement affect the resolution required to pass the motion.
Q10: Can an ‘unfinancial’ owner submit a motion for a general meeting or be a part of a request for an EGM?
A10: Yes. The legislation does not take the financial standing of an owner into consideration when exercising their right to submit motions or be a part of the 25 per cent of owners to request an EGM. Their financial standing is only an issue when voting at general meeting as well as nominating or being elected to the committee.
When in doubt about the interpretation or implementation of any aspect of these Q and As, legal advice should be considered.
For further information about the enforcement of by-laws or for general queries about the body corporate legislation please contact our Information Service on Freecall 1800 060 119, email firstname.lastname@example.org or see our website http://www.qld.gov.au/bodycorporate.
This article was contributed by Chris Irons, Commissioner for Body Corporate and Community Management.