Common property maintenance is a regular source of contention in bodies corporate.
Understandably, it can be frustrating for residents when they see that the common property is not being maintained in good condition. However, often this frustration is mistakenly directed towards the caretaker for the scheme. When speaking to clients, we caution the assumption that all common property maintenance is shouldered by the caretaker.
In this article, we will clarify the role of the caretaker and the body corporate concerning maintenance responsibilities and highlight possible ways to help minimise any conflict surrounding this issue.
Who is responsible for maintaining the common property?
The regulations state that the body corporate is responsible for maintaining the common property in good condition. It is important to understand that this reference to the ‘body corporate’ does not mean the caretaker. Notably, the members of the body corporate are all lot owners in the scheme – the caretaker is not the body corporate.
The misconception that the caretaker is responsible for all common property maintenance can perhaps be attributed to the fact that in the capacity of a service contractor, the caretaker is engaged to supply services (not including administrative services) to the body corporate for the benefit of the common property. Some examples of these services may include maintaining areas of common property such as gardens, lawns, pools, tennis courts or barbeque areas.
It is vital that residents and committees have a clear understanding of the caretaker’s responsibilities. Contrary to common opinion, there is no list of caretaker duties in the body corporate legislation. The scope of the caretaker’s duties regarding maintenance is defined by the terms in their contract. The caretaker is not obliged to perform maintenance tasks beyond the terms of their engagement with the body corporate. We regularly encourage residents who contact us with complaints about the caretaker to first access the contract and confirm the responsibilities of the caretaker before acting.
It follows that the responsibility for common property maintenance, that is not covered under the caretaker’s contract, falls back to the body corporate. Any common property maintenance that is the body corporate’s responsibility, must be approved by either a committee decision (if it is within their spending limit and there is provision in the budget for the expense), or the owners at a general meeting.
What if the terms of the contract are unclear?
Unfortunately, it is not always as straightforward as checking the terms of the contract to confirm the caretaker’s duties. In some cases, an additional layer of confusion is thrown into the mix when the terms of the contract are unclear and open to different interpretations. Grey areas in caretaker contracts naturally trigger conflict, as the caretaker may have a particular understanding of their maintenance responsibilities, while the committee (or residents) may view the terms differently.
The BCCM Office has no jurisdiction to determine contractual disputes. Disagreements about the terms of an engagement may be determined by the Queensland Civil and Administrative Tribunal or by a specialist adjudicator appointed by the Commissioner. Legal advice may also be advisable in contractual matters to have a full understanding of the options available.
In the first instance, it is always preferable for the caretaker and the committee to discuss the matter to try to avoid conflict and resolve the issues. If any amendments are to be made to the caretaking service contractors engagement they must be approved by a motion passed by ordinary resolution at a general meeting.
Poor communication and insufficient information are arguably two of the key factors fuelling misconceptions and conflict. To foster a healthy working relationship between the caretaker and residents, it is imperative that the caretaker’s duties concerning maintenance are well-defined. A clear understanding of the caretaker’s responsibilities means there is less room for wrong assumptions and unreasonable expectations.
Further information about maintenance issues in a body corporate could be found at: https://www.qld.gov.au/law/housing-and-neighbours/body-corporate/maintenance
Author: Jane Wilson, A/Commissioner for Body Corporate and Community Management