10400655_953494324765508_5073613687928963778_nFor both sales agents and property managers, the Office of the Commissioner for Body Corporate and Community Management has some direct involvement in real estate queries and issues. Part of my Office’s statutory role is to provide information and with that in mind, I am pleased to be working with the REIQ to provide some regular information to members.
This month’s article is going to give some tips and information on how owners and occupiers can address maintenance issues with the body corporate of their complex. Firstly, a point of clarification at the outset – both owners and occupiers, under body corporate legislation, have certain rights. It is important to also note that body corporate legislation refers to ‘occupiers’, which is the definition under which a ‘tenant’ would fall. I will use the term ‘occupier’ throughout.
Owners have rights to raise any concerns regarding the complex with the body corporate. While occupiers are limited in what they can ask a body corporate to do for them, maintenance is one of those issues they have every right to raise directly with the body corporate committee or body corporate manager. There are a couple of misunderstandings surrounding this issue particularly relevant to an occupier’s right to raise maintenance issues. Firstly, can an occupier write direct to the body corporate? Can owners and occupiers get quotes for the maintenance of common property? Can owners and occupiers dispute a decision of the body corporate not to maintain? The short answer to these three questions is “YES”. The Information Service of my Office receives a number of enquiries from occupiers, owners, committee members, body corporate managers and property managers querying the right of an occupier to write or telephone the body corporate. For some unknown reason there is a misunderstanding that the body corporate shouldn’t have to deal with tenants and this should be left to the property manager. This is incorrect.
The Body Corporate and Community Management Act 1997 (the Act) and the associated regulation modules clearly identifies an occupier throughout and in particular, section 35(4) states that “if the occupier of a lot is not the lot’s owner, a right the owner has under this Act to the occupation or use of common property is enjoyed by the occupier’’. So this gives the occupier the right to use the common property which must be maintained in good condition by the body corporate. If the common property is not being maintained in good condition, owners and occupiers have every right to correspond with the body corporate directly to resolve these issues. This then entitles owners and occupiers to get a quote for the maintenance, whether gardening, mowing or otherwise, and submit the quote with a request to maintain the area to the body corporate. This should be sent to the body corporate at their address for service. The property manager should give the address for service to the occupier. The owner should already have these details through past correspondence. The Information Service has heard from occupiers who have been refused this information from their property manager. This is not confidential or private information and can be shared between parties.
In fact, the information above suggesting owners and occupiers get a quote and ask the body corporate, in writing, to maintain the common property is a legislative requirement of internal dispute resolution or self resolution as we call it. Owners and occupiers must do this first and have a decision of the body corporate (committee) not to maintain the common property before their right to lodge a dispute resolution application comes into play. Of critical importance is that I, as the Commissioner, need to be satisfied that the applicant has made reasonable attempts to resolve the dispute with the body corporate before lodging an application. It is not sufficient for the property manager to do all the liaising with the body corporate without the owner’s or occupier’s involvement and expect this to satisfy the legislative requirements of self resolution.Further when lodging the application it is for the owner or occupier as the applicant to ‘make their case’. It is not sufficient for the owner or occupier to rely on their property manager or other people to prove the body corporate isn’t maintaining the common property. So throughout this process, owners and occupiers should be, for example, taking photos, writing down notes and keeping copies of correspondence with the body corporate they have personally written. They then include these documents and complete the application in full outlining how the body corporate have failed to meet its legislative maintenance obligations. Even if the body corporate has engaged a service contractor, for example, an onsite manager, to perform these duties, it is still a requirement for owners and occupiers to follow the above processes.
The decision to either ask the onsite manager to perform this work, use the contractor who gave the quote or find someone else rests with the body corporate. The legislation just requires owners and occupiers to ask the body corporate to maintain the common areas they believe aren’t being maintained.

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