Queensland property law review – no such thing as a quick fix
At the SSKB Living in Strata Trade Show last year, attorney-general Jarrod Bleijie announced an impending shake up of prop-erty law in Queensland.
The news was received with a great sense of positive anticipa-tion, with my company acknowl-edging that what was needed in the market was certainty and simplicity.
With a view to eliminating unnecessary regulation and red tape, Mr Bleijie and the Newman government partnered with QUT to undertake a broad ranging review of the current law. The review process has so far in-volved consultation with industry professionals and stakeholders, as well as the broader community.
Queenslanders in the strata industry should be advised to have some patience as it now seems the results of the review are unlikely to materialise until 2015.
What is in review?
The review, conducted through the Commercial and Property Law Research Centre at QUT, has identified a number of complex and contentious topics to address.
Two issues papers released in February of 2014 invited sub-missions on (a) the seller disclo-sure regime in Queensland, and (b) the settling and adjustment of contribution schedule lot entitle-ments under the Body Corporate and Community Management Act 1997.
Two further issue papers are meant to be released later this year and they will focus on:
1. Industry and communi-ty feedback on issues concerning the Property Law Act 1974; and
2. Body corporate gov-ernance issues arising under the Body Corporate and Community Management Act 1997 and other community titles legislation.
What’s the hold up?
As community managers, we are well aware of the lack of consensus in the strata communi-ty around lot entitlements. After years of what can only be de-scribed as a ‘political ping-pong’, it is understandable that an easy solution to the lot entitlement system has not been found in the last year.
One argument relayed to me is that ‘when all unit owners accept that they must pay their fair share of community expens-es, the angst surrounding contri-bution schedules will disappear.’ However, it is the notion of what is ‘fair’ that has proved elusive.
Pre-1997, there was no op-portunity to have lot entitlements reviewed once they were set in place by developers. In 1997 the ‘just and equitable’ review mech-anism was introduced, however, its imprecise nature led to confu-sion. Owners were left angry when they had the rules changed on them after they had bought their apartments.
In 2011 the Labor govern-ment passed amendments that allowed lot owners to overturn the order of a court, tribunal or specialist adjudicator, simply via a motion to the body corporate or its committee. These adjustments inevitably again resulted in own-ers unexpectedly having their contributions changed. In 2012 attorney-general Jarrod Bleijie introduced a bill that removed the controversial reversion process altogether.
Opinions in the strata com-munity remain divided. Some argue that lot entitlements should be reverted to that set by the de-veloper with no opportunity to change. Others suggest a change to lot entitlements should be al-lowed if decided at an AGM without dissent.
With the variety of opinion expressed just to SSKB, it doesn’t take much imagination to picture the number of feedback forms piled mountain high in the QUT offices. The consultancy team will need to take great care in navigating the many vested interests, and this is something that is better done without rush.
Is a review urgent?
We have heard arguments for and against the delay of legisla-tive change.
Unit owners whose levies have increased due to previous legislation change argue the re-view is urgent and the govern-ment should facilitate changes promptly.
However, the solution is not simple. Owners who bought lots at different times accepted the lot entitlement contribution as it was set at the date of their purchase. Because there have been multiple changes to the legislation over the years, there are multiples groups of lot owners whose levies have been affected. The fact is, we cannot go back in time and undo previous legislative changes so any approach the government adopts will affect some in the strata community favourably, and not others. For this reason, the best that we can ask for from this review is certainty.
On the other hand, some in the industry also believe that other areas of the Queensland property law review are more significant and the demand for clarity in lot entitlements should not be a cause for rushing all legislative change.
Although the BCCM Act is world class legislation, there is room for further improvement in order to maintain Queensland’s pre-eminence in the area of com-munity living. Queensland needs to settle on a system that works and stick with it. People do not enjoy having the rules changed on them.
Certainty and simplicity are important to the many Queens-landers in strata communities.
