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Common queries about managers

Our Information Service regularly receives enquiries about the duties and responsibilities of an onsite manager or building manager.

221-BCCM Report-Chris Irons 300x225Under the Body Corporate and Community Management Act 1997, this manager is known as the “caretaking service contractor”. The key part of this term is the “contractor” part because, ultimately, it is the contract entered into by this individual/company with the body corporate that will govern what the caretaking service contractor responsibilities are.

As with any contractual arrangements, queries about the terms and meanings of the contract are best handled by seeking legal advice. While the Information Service cannot provide legal advice, it does provide general information and below are some common queries it receives about caretaking service contractors, together with some general information in reply:

Q: What are the duties of the on-site manager?
A: The duties of a caretaking service contractor are not defined in the Body Corporate and Community Management Act 1997 or its associated regulation modules. Information officers can only inform the enquirer that the duties and/or responsibilities of a caretaking service contractor are normally contained within the contract of engagement and it should be reviewed in the first instance.

Q: The on-site manager is my real estate agent. I believe they are not doing their job properly and favours letting out other lots instead of mine, what can I do?
A: A caretaking service contractor is a person who is authorised to conduct a letting agent’s business for the scheme. This person will hold a letting agent’s licence under the Property Occupations Act 2011. It is important to keep this in mind, that this person/entity is in fact a type of real estate agent. The relationship between and owner and their property agent is therefore best directed to the Office of Fair Trading on 13 74 68.

Q: The on-site manager thinks they run the scheme and is always knocking on doors and telling people they can’t park their cars on the common property. The on-site manager puts letters in our mailbox threatening to tow our car. Is this a breach of their contract or even legal?
A: A caretaking service contractor does not have the authority to enforce the scheme’s by-laws. If a caretaking service contractor believes a person is contravening a body corporate by-law, they may, like any other owner or occupier, decide to issue a BCCM form 1 to the body corporate. It is the body corporate, generally through its committee, that decides to enforce the by-laws by issuing a contravention notice.

If a caretaking service contractor is behaving in a way that may result in a breach of the code of conduct for body corporate managers and caretaking service contractors, owners or occupiers should write to the body corporate committee identifying the circumstances of the breach and request the committee address the code of conduct breach issue. They may do so by issuing a remedial action notice to the caretaking service contractor. Determining if a specific circumstance constitutes a breach of the code of conduct or the contract itself would require independent legal advice.

Q: I am a lot owner and asked my on-site manager to undertake some maintenance work but they are ignoring me. Can I breach them for not fulfilling their duties?
A: A lot owner does not have a direct relationship with the caretaking service contractor. This person/entity is engaged by the body corporate to undertake certain duties as a service contractor, for example, mow the lawns. An owner within the scheme cannot direct the on-site manager to carry out maintenance. If an owner believes the on-site manager is responsible for the work they want done and they are not doing it (they are not fulfilling their duties), the owner should direct their request to the body corporate committee. The committee may then make a decision directing the on-site manager to perform the duty as contained in their engagement and/or decide to issue a remedial action notice for the non-compliance of contractual duties.

If the work is not covered by the duties defined in the engagement, the body corporate will be responsible to have the work undertaken by a person of their choosing. If they choose to ask the on-site manager to perform additional duties to those within their contract, the body corporate will be required to remunerate the on-site manager accordingly.

Q: I am an on-site manager and the committee are telling me to do extra work and are threatening to get rid of me if I don’t do it. Am I responsible for this work? What happens if I don’t do it?
A: As stated earlier, the duties of a caretaking service contractor are not defined in the Body Corporate and Community Management Act 1997 or its associated regulation modules. Duties and/or responsibilities of a caretaking service contractor are normally contained within the contract of engagement and it should be reviewed in the first instance. If an interpretation of the contractual terms is necessary to establish whether they have a specific responsibility to undertake the tasked being asked by the committee, independent legal advice would be necessary.

The committee is able to issue a remedial action notice for non-compliance of their contractual duties and the possibility of termination if not remedied. However, whether the actions of the committee are legal, justified or otherwise would require independent legal advice. In addition, the caretaking service contractor would need to review the contract to determine the dispute processes, if any, or obtain legal advice on their options to challenge any notice it receives.

Q: I am the caretaking service contractor for a scheme and my contract allows me to take four weeks annual leave. I want to take five weeks leave this year. Am I able to do that? Do I have to employ somebody to do my work while I am gone?
A: As per previous answers, the terms of the contract are relevant and may require independent legal advice. On the issue of having to employ somebody else during that time, this is subject to the requirements of the Property Occupations Act 2011. The on-site manager should contact Office of Fair Trading.

This is far from an exhaustive list but does give a flavour for some of the more recurrent queries.

For further, general information, contact the Information Service of the Commissioner’s Office on 1800 060 119 or [email protected].

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