Monday, October 23, 2017

Recommendations for dispute resolution

With my office providing a dispute resolution service for Queensland’s community titles sector – comprising over 40,000 different schemes – it is no surprise the disputes in question traverse a range of matters.

Sometimes the disputes are about tangible matters, for example, maintenance, financial management or decision-making.

At other times my office sees dispute resolution applications lodged that appear to be about less tangible and more emotive matters.

In such cases, it is common to see parties claiming they are experiencing instances of nuisance, harassment, bullying or abuse. For people to say they are experiencing these things clearly indicates that there are difficulties and challenges that would benefit from a resolution.

That said, it is important to be clear about terms, and more particularly, about what is and is not possible as part of my office’s jurisdiction.

‘Nuisance’ is a concept provided for under section 167 of the Body Corporate and Community Management Act 1997 (the Act).

This provision around nuisance comes with particular qualifiers and is not a general ‘catch-all’ about any action that might be regarded by the body corporate, or another occupier, as a nuisance.

Specifically, the section about ‘nuisance’ provides that an occupier “must not use, or permit the use of, the lot or the common property in a way that—

(a) causes a nuisance or hazard; or

(b) interferes unreasonably with the use or enjoyment of another lot included in the scheme; or

(c) interferes unreasonably with the use or enjoyment of the common property by a person who is lawfully on the common property.”

Accordingly, the onus will be on the applicant in a dispute to ensure the nuisance provisions are satisfied such that they can provide evidence that an occupier has used, or permitted the use of, a lot or the common property resulting in an outcome including (a), (b) or (c) above.

There is no provision under the Act that considers or defines ‘harassment’ and nor is there any power of an adjudicator under the Act to make an order about one party harassing another.

Accordingly, even though a party might be experiencing considerable distress at what they perceive to be ‘harassment’, there is no jurisdiction for my office to consider such a claim and it may therefore be advisable for a party to consider seeking legal advice about their options at law to deal with the ‘harassment’.

Similarly, the Act does not provide for or define ‘bullying’. Bullying is a term that has particular meaning in other contexts; for example, in relation to workplace health and safety. While this is not something on which my office can advise or has jurisdiction over, further information about bullying in a workplace context can be found on the Queensland government website.

Like harassment and bullying, ‘abuse’ is not a term that is contemplated under body corporate legislation and there is no capacity for my office to provide dispute resolution around allegations of abuse.

Again, legal advice might be appropriate to inform a party about what their options are to deal with a situation in which they feel they are experiencing abuse.

Where there is an allegation of physical abuse, it may be appropriate that the matter be referred to the Queensland Police Service.

A body corporate might have by-laws as part of its community management statement that touch upon some of the matters I’ve addressed so far.

For example, a body corporate might have a by-law that regulates how owners and occupiers communicate with the body corporate and its committee, including provisions for how often the communication occurs or provisions about communication that could be considered inappropriate.

As is the case with all by-laws, the body corporate is responsible for their enforcement and that enforcement may ultimately involve application to my office.

It is not appropriate for me to comment on whether such by-laws or any by-law that purports to regulate nuisance, harassment, bullying or abuse are valid – that ultimately would be something for an adjudicator to determine.

Further guidance around these matters may be found from adjudicators’ orders, which are available at austlii.edu.au. For further information and for general queries about body corporate legislation please contact our information service or submit an online enquiry.

Finally, for instances that are not within the jurisdiction of my office to consider but involve interpersonal disputes, it might be appropriate to consider the mediation services offered by the Dispute Resolution Branch of the Department of Justice and Attorney-General. Further information is available at qld.gov.au.

About Chris Irons

Chris Irons
Chris is the Commissioner at BCCM (Body Corporate and Community Management), an office that provides services like information, dispute resolution and more for those who live, invest or work in a community titles scheme in Queensland.

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