Instructing Service Providers
Friday February 16th, 2018
Have you ever tried to take instructions from seven people at once?
It happens quite a bit to us here in strataland.
We send out a set of questions to a client committee and everyone copies us in with their responses, comments, clarifications and questions.
As specialist Body Corporate Solicitors we are regular receivers of body corporate instructions and know how to manage these things. But; many service providers and contractors have not regularly dealt with bodies corporate before leaving them confused about who to listen to. The other issue is that many committees are not necessarily good givers of instructions and some lot owners don’t know where to start.
As usual with our commentary, rather than sit here and look up the most obtuse parts of the BCCM Act to bamboozle you all with, we will actually deal with stuff that will make a day-to-day difference in your strata lives.
What is best practice with instructions?
From the committee side
Every job should have one person running it. That is not to say that one person then makes the decisions. They don’t. The committee must make every decision in a valid way but it absolutely can appoint a single member to be a liaison for a particular piece of work.
The most common ones will be dealing with:-
the body corporate manager;
the resident manager;
a particular issue – be that a legal matter or a particular body corporate project;
‘interested’ lot owners. I would use the word ‘difficult’ (and while some are), most just have a particular need to be heard on their particular topic.
These don’t all need to be the same person, but we usually find one committee martyr steps up to them all and then burns out from the volunteering over a long period of time. For bigger schemes it is much better to try to share the load.
Having the one point of contact just makes sense. Everything is funnelled through that person. Instructions are clear and can be clarified. The contact can go back to the committee if needing further guidance. Instructions can be reduced to writing, quite easily avoiding later disputes over who said what to who and when – which is what happens when multiple people start chipping in.
Dealing with one person brings clarity.
From the body corporate manager side
As you would expect, body corporate managers know bodies corporate and are usually pretty good at managing multiple instructions back into shape. When it comes to their committees, we usually find they will respond to all committee requests because their ongoing engagement, like most service providers, is largely tied back to good service.
Where body corporate managers sometimes come unstuck is responding to or the perception of not responding to owner emails and complaints. What is sometimes forgotten is that a body corporate manager is a creature of instructions, like we are as lawyers.
We don’t make decisions for clients but ask them for what they want to do after advising them of their choices. Body corporate managers in their efforts to provide good service can sometimes be lulled into providing answers on the hop to lot owners which really should be tabled at a committee meeting for consideration by the committee. And on the flip side, if they are not instructed by the committee to respond, they can be blamed by the owner for not providing good service!
It also doesn’t help that many lot owners are relatively new to strata or simply don’t understand it and therefore blame the body corporate manager or hold them responsible for committee decisions. Education and management of expectations remains key, and an ongoing battle.
From the resident manager side
Depending on the resident manager’s experience they can manage communications successfully or they can be caught up responding to everything and everyone. Simply understanding what their role is can be a bit complicated.
It starts with the management rights agreements and the BCCM Act. Prior experience helps and we do find that those resident managers with English as a second language (and new to the management rights industry) can find managing communications a bit more difficult.
We have been involved in disputes where both the resident manager and the committee had completely wrong expectations around each other’s role, and the body corporate manager (who did know the rules) simply stepped out for fear of offending one of them. When someone thinks the other one isn’t doing what they should and handbags start flying, the relationship can deteriorate rather quickly.
Resident managers can get caught up in all manner of issues and dragged into matters that are simply not their problem. By-law enforcement is a big one. So is towing of cars. We sometimes get resident managers being blamed for the committee not dealing with major common property issues – which are all committee matters.
Resident managers can quite often be pilloried by owners who are not on the committee about the scheme land. That is akin to a lot owner ringing us and telling us they are not happy with the advice we gave a committee or asking us to advise on further things. No. We take instructions from the committee alone so channel what you want to them. Resident managers need to be the same – and the difficulty is handling that delicately and without simply saying ‘that’s not my job’.
But it becomes a lot simpler if the committee has a liaison person and the resident manager understands that their only interaction with the body corporate as caretaker is through that person – not every Tom, Dick or Harriet who pipes up with a comment about the depth of the mulch.
And before anyone blows up – yes, people who own lots and pay levies are entitled to their opinions about how things are done. It is just that they should direct them to the committee in the first instance 99 times out of 100. And if they feel really strongly about it, put their hand up at nomination time at the next AGM and get involved!
From the owner side
Last but certainly not least.
If you are on the committee, start back at the top of this column. If you are not on the committee and want to get involved, then talk to the body corporate manager or a committee member about how to do so.
If you only have one specific issue you want dealt with then understand what it is, do your research on Smart Strata, our website or the Commissioner’s, get legal advice if you think you need it, and then ask what it is you need to ask – professionally and politely.
This article was contributed by Frank Higginson – Director, Hynes Legal.